Minister for Justice and Equality v Siklosi

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 15 December 2020
• Neutral Citation: [2020] IEHC 682
• Court: High Court
• Docket Number: [2019 No. 268 EXT]

BETWEEN

MINISTER FOR JUSTICE & EQUALITY

APPLICANT

AND

ZSOLT SIKLOSI

RESPONDENT

[2020] IEHC 682

Binchy

[2019 No. 268 EXT]

THE HIGH COURT

European arrest warrant – Surrender – Abuse of process – Applicant seeking an order for the surrender of the respondent to Hungary pursuant to a European arrest warrant – Whether the surrender of the respondent would be an abuse of process

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Siklosi, to Hungary pursuant to a European arrest warrant dated 27th July, 2017 (the EAW). The EAW was issued by the Tatabánya Court of Appeal, as issuing judicial authority. It was submitted that surrender was prohibited by Part 3 of the European Arrest Warrant Act 2003 (as amended); specifically, it was prohibited by ss. 37, 38 and 45 of the 2003 Act. It was submitted that the surrender of the respondent would be an abuse of process having regard to the previous refusal of an application for the surrender of the respondent in respect of the same offences. It was submitted that the content of the EAW was insufficient and did not comply with s. 11 of the 2003 Act.

Held by Binchy J that all the requirements of the 2003 Act had been met so far as this application was concerned and that all of the objections raised in opposition to the application must be rejected.

Binchy J held that he would make an order for the surrender of the respondent pursuant to s. 16 of the 2003 Act.

Application granted.

JUDGMENT of Mr. Justice Binchy delivered on the 15th day of December, 2020

1 By this application the applicant seeks an order for the surrender of the respondent to Hungary pursuant to a European arrest warrant dated 27th July, 2017 (“the EAW”). The EAW was issued by the Tatabánya Court of Appeal, as issuing judicial authority (“IJA”).

2 The EAW was endorsed by the High Court on 4th November, 2019. The respondent was arrested and brought before this Court on 21st January, 2020. The application opened before this Court on 4th February, 2020, on which date the Court directed that a request for further information under s. 20 of the European Arrest Warrant Act 2003 (as amended) (hereinafter “the Act of 2003”) should be made of the IJA. There had also been earlier requests for additional information made of the IJA, prior to the hearing of the application.

3 At the opening of the application, I was satisfied that the person before the Court is the person in respect of whom the EAW has been issued i.e. Zsolt Siklosi, and no objection was raised as to the identity of the person before the Court.

4 I was further satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the Act of 2003 arise on this application, and that the surrender of the respondent is not prohibited for any of the reasons set forth in any of those sections.

5 This is the second application advanced by the applicant in respect of this respondent, and in respect of the same offences. The first application was refused by Donnelly J. in a judgment handed down on 19th May, 2015, in Minister for Justice & Equality v. A.B. [2015] IEHC 338. The reason for the refusal of the application on that occasion was, in summary, that the court formed the view that the surrender of the respondent was no longer required for the enforcement of the sentence of imprisonment, but instead for the purpose of prosecution. The court formed this impression from correspondence between the central authority here and the IJA in the course of which the IJA stated that the respondent had made representations in Hungary regarding the possibility of a retrial, and the IJA confirmed that a review of the case has been ordered. However, the IJA also stated that execution of the EAW was still required for the purpose of “conducting criminal prosecution”. Donnelly J. concluded that this had the effect of altering the purpose for which the warrant issued i.e. it was originally submitted as a conviction warrant, but by reason of the impending retrial it became, in effect, an application for the surrender of the respondent for the purposes of a prosecution. Donnelly J. held that in those circumstances, the application had to be refused because the warrant in that case had been endorsed for one purpose, and the surrender of the respondent was then being sought for another. This background gives rise to one of the grounds of objection on the part of the respondent on this application, which I will address presently.

6 At paragraph B of the EAW, it is stated that the decision on which it is based is an enforceable judgment of the Encsi Municipal Court, as court of first instance, of 10th October, 2006 and the Borsod-Abaúj Zemplén Court, as court of second instance, of 19th April, 2007. Following a request for additional information, it was confirmed by the IJA that the latter comprised the decision of an appellate court and was, for the purposes of EU Council Framework decision of 13 June 2002 on the European arrest warrant (as amended), the “trial resulting in the decision” for the purposes of this application.

7 At paragraph C of the EAW, it is stated that the respondent received a custodial sentence of one year of imprisonment in respect of the offences to which the EAW relates, and that eleven months of that sentence remain to be served. Moreover, it is apparent from the EAW that each of the offences for which his surrender is sought is punishable by imprisonment or detention in Hungary for a maximum period of not less than twelve months. Accordingly, minimum gravity is established for the purposes of this application.

8 At paragraph D of the EAW, it is stated that the respondent appeared in person at the trial resulting in the decision. Following a request for further information, it was clarified that this statement related only to the first instance decision. As regards the decision of the appellate court of 19th April, 2007, the IJA confirmed by way of additional information provided under cover of a letter dated 5th June, 2019 that the respondent was duly summoned to the appeal hearing and was also warned that a decision could be handed down in his absence if he did not appear at the proceedings. In another letter providing further information, dated 11th March, 2020, the IJA again confirmed that the respondent was duly summoned, and also added that the respondent was represented at the appeal hearing by a defence counsel whom he himself appointed.

9 At paragraph E of the EAW, it is stated that it relates to four offences. A detailed description of the offences is provided. It is clear that the offences concerned arise out of a domestic incident involving the alleged assault by the respondent on his spouse and his mother in law, false imprisonment and causing damage to property. It was not disputed at the hearing of this application that the actions of the respondent, as described in the EAW, would if committed in this jurisdiction constitute offences. Those actions include:

(1) Striking his former spouse on the face on several occasions, pushing her onto a bed and kicking her legs and nose. As a result, she suffered injuries to her nose as well as haematomas on the inner sides of both knees, the outer side of her right thigh, the front side of the left leg and bruising around her left ear.

(2) Striking his mother in law by throwing a bag at her. She sustained a haematoma on the outer side of her right thigh.

(3) Locking his wife and daughter in a room to prevent them from leaving their flat.

(4) Smashing his wife's mobile phone against a wall.

10 In her decision of 19th May, 2015, Donnelly J. also affirmed that the offences described in the EAW correspond to offences in this jurisdiction. It is quite clear that each of these actions correspond to offences in this jurisdiction and that no objection to surrender could arise under this heading.

11 Points of objection were delivered just prior to the initial hearing of the application. These points of objection were added to and developed as more information became available in response to requests for information from the IJA. Accordingly, it is more appropriate to address objections to surrender after all requests for information and replies have been addressed.

12 At the hearing of this application, counsel on behalf of the respondent said that it remains unclear what happened with the application for a retrial which gave rise to the earlier refusal, by Donnelly J., of an application for the surrender of the respondent. He submitted that it appears that the surrender of the respondent is again being sought in respect of a matter for which his surrender has previously been refused.

13 It was further submitted on behalf of the respondent that if his application for a retrial was refused, then his surrender is prohibited pursuant to s. 45 of the Act of 2003, because it is clear from the EAW that he was tried in absentia.

14 Since there was a lack of clarity as to the outcome of the application for a retrial, and the impact of that decision upon this application, I deferred giving a decision in this matter and directed that an enquiry should be made pursuant to s. 20 of the Act of 2003. In particular, I directed that the IJA should identify the “trial resulting in the decision” within the meaning of Article 4a (1) of the Framework Decision, as interpreted by the Court of Justice of the European Union (“CJEU”) in its decision of the case of Tupikas (C-270/17 PPU).

15 In its reply to these enquiries dated 2nd March, 2020, the IJA stated that the trial resulting in the decision is that of the Appellate Court of Borsod-Abaúj Zemplén of 19th April, 2007, and it was also confirmed that the application for a retrial was unsuccessful.

16 In light of the closure of the courts for a period during the COVID-19 pandemic, I invited written...