The Minister for Justice and Equality v Henn

JurisdictionIreland
JudgeMs. Justice Donnelly
Judgment Date21 March 2019
Neutral Citation[2019] IEHC 378
CourtHigh Court
Docket Number[2018/328 EXT]
Date21 March 2019

[2019] IEHC 378

THE HIGH COURT

Donnelly J.

[2018/328 EXT]

BETWEEN
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
ZOLTAN HUBA HENN
RESPONDENT

European arrest warrant – Surrender – Request for further information – Applicant seeking the surrender of the respondent on foot of a European arrest warrant – Whether the respondent’s surrender was prohibited

Facts: The High Court, on the 30th October, 2018, gave an ex tempore judgment in respect of a European Arrest Warrant (EAW) dated the 20th October, 2016. In that EAW, the respondent, Mr Henn, was sought for prosecution in respect of one offence of swindling in Hungary. The Court rejected all the respondent’s points of objection to his surrender save for a final determination in respect of his objection to surrender on the grounds of the real risk of being subjected to inhuman and degrading treatment in the Hungarian prison system on surrender. The Court sought further information in respect of those conditions from the Hungarian authorities. On the date Donnelly J gave the ex tempore judgment, the respondent was arrested on a further EAW dated the 19th June, 2018. That EAW stated that the respondent’s surrender was sought in respect of an enforceable judgment of “imprisonment of two (2) years + imprisonment of one (1) year”. The respondent contended his surrender was prohibited under wide ranging points of objection.

Held by Donnelly J that further information was required before the Court could be satisfied that his surrender should be permitted on the EAW. Donnelly J decided to so seek that information, despite the delays in the case, because these were offences of a repetitive nature and where some of the lack of information may be down to either translation issues or the lack of a precise request on the part of the State; the respondent had also been on bail in respect of the original matter and his surrender on this EAW had not or would not be delayed to any significant extent pending the receipt of further information.

Donnelly J held that the following questions were sent by the central authority on behalf of the Court’s request for further information: “(i) At paragraph (b)(2) of the EAW it states that the enforceable judgment is “imprisonment of two (2) years + imprisonment of one (1) year”, and there is a reference to a judgment of Rackeve (sic) District Court and a judgment of Paks Town Court. However, at paragraph (c)(2) of the EAW, under the heading “Length of custodial sentence imposed” it states “Imprisonment of two (2) years” and under the heading “Remaining sentence to be served” it states “Imprisonment of one (1) year”. The information at paragraph (f) of the EAW also states that the Hungarian arrest warrant was issued regarding the two years and the one year imprisonment. In the circumstances, the High Court believes there is a lack of clarity as to what sentence or sentences his surrender is sought by this European arrest warrant. Please confirm the exact period of imprisonment Mr Henn will be required to serve in relation to each of the sentences imposed on him and whether he is required to serve these sentences concurrently or consecutively. Please explain why the EAW says he only has one year remaining to serve when his surrender appears to be also sought in respect of a sentence of two years duration. (ii) The Issuing Judicial Authority has indicated that all of the offences are offences to which Article 2(2) of the Framework Decision applies. In order for Article 2(2) to be applicable, each of the offences must be punishable by a custodial sentence for a maximum period of at least three years. The EAW states refers to all of the offences as being “felonies”. However, the additional information provided on 1st October 2018 refers to some of the offences as “misdemeanours”. The High Court notes the information given in the EAW regarding the “Nature and legal classification of the offence(s) and the applicable statutory provision/code” regarding cumulation of sentence. It is not clear to the High Court that the provisions regarding cumulation of sentence apply to all of the offences contained in the EAW. Please confirm which of these offences are felonies and which are misdemeanours. Please confirm, by pointed to the relevant section of the criminal code, that regardless of whether they are felonies or misdemeanours that each offence carries a period of imprisonment of at least three years. If relevant, please explain how this may be affected, if at all, by the cumulative penalty provisions. (iii) The High Court notes that the Issuing Judicial Authority has indicated at paragraph (d) of the EAW that Mr Henn would be entitled to a retrial or appeal. Please confirm that this guarantee of a retrial or appeal applies to both the trial which occurred at Paks Town Court and the trial which occurred in Rackeve (sic) District Court.”

Request for further information.

JUDGMENT of Ms. Justice Donnelly delivered on the 21st day of March, 2019
1

On the 30th October, 2018, this Court gave an ex tempore judgment in respect of a European Arrest Warrant (‘EAW’) dated the 20th October, 2016. In that EAW, the respondent is sought for prosecution in respect of one offence of swindling in Hungary. The Court rejected all the respondent's points of objection to his surrender save for a final determination in respect of his objection to surrender on the grounds of the real risk of being subjected to inhuman and degrading treatment in the Hungarian prison system on surrender. The Court sought further information in respect of those conditions from the Hungarian authorities.

2

On the date I gave the ex tempore judgment, the respondent was arrested on a further EAW dated the 19th June, 2018. This EAW is the subject matter of this judgment. This is only a partial judgment as this does not deal fully with the issue of prison conditions.

3

This EAW states that the respondent's surrender is sought in respect of an enforceable judgment of ‘ imprisonment of two (2) years + imprisonment of one (1) year’. These refer to 165 counts of fraud and 3 counts of fraud: the precise total is a matter of controversy in the proceedings.

4

Under wide ranging points of objection, the respondent contended his surrender was prohibited. The Court will proceed to deal with the uncontested and contested matters at issue in this application under s.16 of the European Arrest Warrant Act 2003 as amended (‘the Act of 2003’).

Identity
5

The Court is satisfied on the basis of the affidavit of Sergeant James Kirwan, member of An Garda Síochána, the affidavit of the respondent and the details set out in this EAW that the respondent, Zoltan Huba Henn, who appears before me, is the person in respect of whom the EAW has issued.

Endorsement
6

I am satisfied that the EAW has been endorsed in accordance with s.13 of the Act of 2003 for execution in this jurisdiction.

Sections 21(a), 22, 23 & 24 of the Act of 2003
7

Having scrutinised the documentation before me I am satisfied that I am not required to refuse the respondent's surrender under the above provisions of the Act of 2003.

Part 3 of the Act of 2003
8

Subject to further consideration of ss. 37, 38 & 45 of the Act of 2003 and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in part three of said Act.

The Background and Contents of the EAW
9

This EAW was issued on the 19th June, 2018, by a judicial authority named the Penal Enforcement Unit of the Budapest Environs Regional Court. At point (b) in the EAW, under the heading ‘Enforceable Judgment’, it stated ‘Imprisonment of Two (2) Years + Imprisonment of One (1) Year’. Underneath the sub-heading ‘reference’, the second EAW stated:

‘Judgment Number 9(b) 686/2013/10 of the Rackeve District Court dated 22nd January, 2014, final and absolute as of 16th April, 2014 + judgment number 1(b) 5/2011/29 of the Paks Town Court dated 13th May, 2011, final and absolute of 21st June, 2011’.

10

At point (c) in the EAW, under the heading ‘Length of the Custodial Sentence or Detention Order Imposed’ it stated, ‘Imprisonment of 2(2) Years’. Under ‘Remaining Sentence to be Served’ the EAW stated, ‘Imprisonment of 1(1) Year’. At point (d), the EAW stated he did not appear in person at the trial resulting in the decision but it grants him a right of retrial at point 3.4 and it said this right to a retrial is not tied to a deadline.

11

At point (e), the EAW stated:

‘This warrant relates to in total: 165 count felonies of fraud (s.373 (1) of Act C of 2012 on the Criminal Code [hereinafter: CCJ, CC s.373 (3) (b) + 164 count felonies (CC s.373 (1) CC s.373 (2) BC) plus 3 count felonies of fraud ( s.318 (1) of Act (iv) of 1978 on the Criminal Code [hereinafter: CCJ, CC s.318 (4) (a) + 2 count felonies (CC s.318 (1), phrase 1 of CC s.318 (2)]’.

12

In the description of the circumstances in which the offences were committed, the offences are broken down into further parts. Under the heading A in point (e) of the EAW, it is stated:

‘in the time period between 20th December 2010 and 28th November 2011, defendant Zoltan Huba Henn using false names (…false names given…) offered job opportunities in Ireland, on online advertising pages. In the advertisements, he requested the persons responding to the advertisements to pay amounts varying from €25 to €125 as managing, administration, or travel costs or as deposit or security payments. The defendant communicated with the people applying for the advertisement by telephone or by emails using false names or his own.

The clients had to transfer the amounts of money requested by the defendant to bank account (number given) held in the defendant's own name, Zoltan Huba Henn at Raiffeisen Bank. Later, they had to wire the given amounts of money to Zoltan Henn or Huba Henn through Western...

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2 cases
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