Minister for Justice and Equality v István Szántó

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 23 July 2021
• Neutral Citation: [2021] IEHC 537
• Docket Number: [2020 No. 269 EXT.]
• Year: 2021
• Court: High Court

Between

Minister for Justice and Equality

Applicant

and

István Szántó

Respondent

[2021] IEHC 537

[2020 No. 269 EXT.]

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 23rd day of July, 2021

1 By this application the applicant seeks an order for the surrender of the respondent to Hungary pursuant to a European arrest warrant dated 5th March, 2020 (“the EAW”) issued by Dr. Katalin Benczéné Viczián, Judge of the Debrecan Regional Court, as the issuing judicial authority. The surrender of the respondent is sought to enforce a sentence of four years and three months' imprisonment in relation to a theft-type offence.

2 The EAW was endorsed by the High Court on 19th October, 2020. The respondent was arrested on foot of same on 20th December, 2020 and brought before this Court on 21st December, 2020.

3 I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. This was not put in issue by the respondent.

4 I am further satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise and that surrender of the respondent is not prohibited for the reasons set forth therein. This was not contested at hearing.

5 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment. Minimum gravity was not contested at hearing.

6 At part E of the EAW, the circumstances of the offence to which the sentence relates, including details of the extent of the respondent's involvement in same, are set out. I am satisfied that correspondence has been established between the offence referred to in the EAW and the offence under the law of this State of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. Correspondence was not contested at hearing.

7 The respondent objects to surrender on the following grounds:-

• (a) the EAW does not contain sufficient detail to satisfy the requirements of s. 11 of the Act of 2003; and

• (b) surrender is precluded under s. 37 of the Act of 2003 as it would be in breach of the State's obligations under the European Convention on Human Rights (“the ECHR”) and/or the Constitution.

8 The respondent swore an affidavit dated 6th January, 2021 in which he avers that he came to Ireland in 2018 and is a member of the Roma community, which is discriminated against in Hungary. He avers that he suffers from heart disease, high blood pressure and depression and that he cannot be treated in prison or by ordinary treatment. He exhibits a report dated 13th January, 2017 from Dr. Zoltán Fülöp, which reviewed his medical records and concluded that his medical conditions were considered a direct threat to his life and were an obstacle to serving a custodial sentence. This report appears to have been prepared at the request of the respondent's lawyer in Hungary for use in the criminal proceedings in that jurisdiction, the subject matter of this application for surrender. It is not stated whether it was used before the courts in Hungary or if any evidence to the contrary was called by the prosecution but it is clear that, if it was relied upon, the courts in Hungary rejected the report as a basis for not imposing a custodial sentence as such a sentence was in fact imposed on 17th October, 2017 and upheld on appeal on 12th March, 2018. The respondent also exhibits various reports relating to discrimination against Roma people in Hungary and prison conditions there.

9 In a supplemental affidavit dated 2nd February, 2021, the respondent avers that he was admitted to hospital on 21st January, 2021 with angina. A letter from his consultant confirmed that his condition had been stabilised and that angiography had demonstrated unobstructed coronary arteries. The consultant recommended the respondent should avoid air travel until vaccinated in respect of COVID-19 as he would be considered a high risk in the event of contracting same. The respondent also exhibits a letter from a Hungarian solicitor, Dr. Csenge Katona, dated 7th January, 2021, which states that healthcare in Hungarian prisons is inadequate, that the respondent's care can only be provided in civilian conditions and that prisons are overcrowded and unhygienic. The affidavit also exhibits various reports concerning conditions in Hungarian prisons and the treatment of persons of Roma ethnicity. A report of the Hungarian National Ethnic Minorities Interest Protection Association EKE & IMA dated 15th January, 2021 suggested that the respondent had been wrongly convicted and sentenced harshly due to his Roma ethnicity. The report indicates that the respondent has been a member of the Hungarian Minorities Party since 2005 and has suffered physical attacks from racists, the last being in 2018. A further report from the Hungarian solicitor, Dr. Katona, dated 28th January, 2021, refers to a medical opinion that the respondent requires continuous treatment in a special cardiology ward in hospital. However, these opinions appear to date back to a period between 2011 and 2017.

Section 11 of the Act of 2003

10 Counsel for the respondent submits that the EAW lacked sufficient clarity as regards the decision upon which it is based and the period of detention which the respondent is required to serve.

11 At part B of the EAW, under the heading “ Enforceable judgement” two judgments are set out as follows:-

“Judgement No. 1.B.1784/2015/92 of the District Court of Debrecan, dated 17 October 2017

Judgement No. 2.Bf.621/2017/11 of the Debrecan Regional Court, dated 12 March 2018.”

At part C of the EAW, it is stated that the sentence imposed was four years and three months' imprisonment, all of which remains to be served. At part D, it is indicated that the respondent appeared in person at the trial resulting in the decision.

12 By way of additional information dated 29th October, 2020, the issuing judicial authority clarified that the judgment dated 17th October, 2017 was a judgment at first instance where the respondent had appeared in person and the judgment dated 12th March, 2018 was a judgment at second instance where the respondent was not present, although he had been summoned personally and was represented by a legal counsellor appointed by the state.

13 Among the exhibits to the respondent's affidavit dated 6th January, 2021 is a memorandum of Dr. Iván Molnár, solicitor, dated 29th December, 2020 confirming that, as the respondent's representative, he had filed a review petition on 19th July, 2018 that the respondent was fully aware of same and had participated in the preparation of same. Dr. Molnár does not suggest that the respondent's right to notification of, or to participate in, any earlier hearings was not respected. Nor does the respondent himself make any similar complaints. It is clear that he had a lawyer, Mr. Szabo, representing him prior to the trial at first instance, as that lawyer commissioned the medical report of Dr. Fülöp prior to the trial. There is no suggestion that such representation ceased or that the mandate given to that lawyer was withdrawn prior to the appeal. In his affidavits, the respondent did not contest the information received from the issuing state as regards his having been personally summoned in relation to the appeal.

14 I am satisfied on foot of the papers before me that there is no lack of clarity concerning the judgment to be enforced or the sentence to be served and I dismiss the respondent's objection in that regard.

Section 37 of the Act of 2003

15 The respondent swore an affidavit dated 6th January, 2021 in which he avers that he suffers from a serious heart condition, depression and high blood pressure and that imprisonment would constitute a direct threat to his life. He exhibits various medical reports. He avers that he is a member of the Roma community and would face discrimination and persecution if surrendered. He exhibits a number of reports concerning discrimination of Roma persons in Hungary. As regards prisons in Hungary, the respondent sets out that same are overcrowded with generally poor conditions, including discrimination against Roma persons, and various reports are exhibited.

16 The Court sought additional information and by reply dated 8th February, 2021, the Hungarian Ministry of Justice confirms that, if surrendered, the respondent would be detained in a prison environment compatible with the ECHR, United Nations Standard Minimum Rules for the Treatment of Prisoners and the Council of Europe Recommendation No. R (87) 3 on the European Prison Rules. It is also confirmed that the respondent, if surrendered, will be...