The Minister for Justice and Equality v Kutas No.2

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date18 April 2019
Neutral Citation[2019] IEHC 366
Date18 April 2019
CourtHigh Court
Docket Number[2016 No. 196 EXT] [2017 No. 341 EXT] [2017 No. 356 EXT]

[2019] IEHC 366

THE HIGH COURT

Humphreys J.

[2016 No. 196 EXT]

[2017 No. 341 EXT]

[2017 No. 356 EXT]

BETWEEN
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
LASZLO KRISZTIAN KUTAS
RESPONDENT

(No. 2)

European arrest warrants – Surrender – Extension of time – Applicant seeking an order extending the time for surrender – Whether the respondent would not be surrendered within the time fixed because of circumstances beyond the control of the State or the issuing state

Facts: The respondent, Mr Kutas, was the subject of three European Arrest Warrants. It was alleged by the Hungarian authorities that on and after 24th July, 2012, he engaged in a form of procurement fraud whereby registration fees were obtained from a wide variety of applicants for a bogus procurement competition. He appeared to have been in custody in Hungary between 7th May, 2013 and 18th December, 2013, and two of the warrants in question [2016 No. 196 EXT] and [2017 No. 357 EXT] were accusation warrants. The other warrant [2017 No. 341 EXT] sought to enforce a conviction and sentence to two years’ imprisonment imposed on 5th January, 2017. The warrants duly came before Donnelly J in the High Court, who on 2nd November, 2018, decided to request additional information from the issuing state under s. 20(1) of the European Arrest Warrant Act 2003. That was replied to on 14th and 15th November, 2018. A further letter seeking additional information was sent on 23rd November, 2018, which was replied to on 26th November, 2018. A third letter seeking further information was sent on 14th February, 2019, which was replied to on 28th February, 2019. Matters then culminated in a written judgment of Donnelly J, Minister for Justice and Equality v Kutas [(No. 1)] [2019] IEHC 249 (Unreported, High Court, 29th March, 2019), in which she made an order for the respondent’s surrender to the issuing State under s. 16(1) of the 2003 Act. The applicant, the Minister for Justice and Equality, applied to the High Court pursuant to s. 16(5) for an order extending the time for surrender.

Held by Humphreys J that, while he had been greatly assisted by Garda Lawlor’s evidence, which very skilfully walked the tightrope between diplomacy given the international context on one hand and a candid exposition of all relevant matters on the other, while Mr Masterson on behalf of the Minister put forward every argument that possibly could have been put forward, and indeed while the Minister very properly has made the application on foot of the request from the Hungarian judicial authorities, it appeared that the only possible order was pursuant to s. 16(5)(b) of the 2003 Act for discharge of the respondent.

Humphreys J held that the only question arising in relation to that order was the question of timing. Essentially, Humphreys J was not satisfied that because of circumstances beyond the control of the State or the issuing state concerned in the sense in which that expression is used in s. 16(5)(a) that the respondent will not be surrendered within the time already fixed. The statute then required Humphreys J to make an order under s. 16(5)(b) that the respondent be discharged. Humphreys J held that, on the face of it, one would assume that that discharge would occur at the end of the ten-day period, but subject to hearing the parties’ legal representatives on that point, he would refuse the application.

Application refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 18 th day of April, 2019
1

The respondent was the subject of four European Arrest Warrants, the three warrants referred to in the title of the proceedings, and a fourth in separate proceedings [2016 No. 195 EXT] which were withdrawn. An amended warrant in relation to the same subject matter became subject of one of the present proceedings [2017 No. 341 EXT].

2

The respondent was born in 1980, and it is alleged by the Hungarian authorities that on and after 24th July, 2012, he engaged in a form of procurement fraud whereby registration fees were obtained from a wide variety of applicants for a bogus procurement competition. He appears to have been in custody in Hungary between 7th May, 2013 and 18th December, 2013, and two of the European Arrest Warrants in question [2016 No. 196 EXT] and [2017 No. 357 EXT] are accusation warrants. The other warrant [2017 No. 341 EXT] seeks to enforce a conviction and sentence to two years” imprisonment imposed on 5th January, 2017.

3

The warrants in this case duly came before Donnelly J. in the High Court, who on 2nd November, 2018, decided to request additional information from the issuing state under s. 20(1) of the European Arrest Warrant Act 2003. That was replied to on 14th and 15th November, 2018. A further letter seeking additional information was sent on 23rd November, 2018, which was replied to on 26th November, 2018. A third letter seeking further information was sent on 14th February, 2019, which was replied to on 28th February, 2019.

4

Matters then culminated in a written judgment of Donnelly J., Minister for Justice and Equality v. Kutas [(No. 1)] [2019] IEHC 249 (Unreported, High Court, 29th March, 2019), in which she made an order for the respondent's surrender to the issuing State under s. 16(1) of the 2003 Act. Section 16(3) provides that such an order comes into effect fifteen days after it is made and sub-s. (3)(a) provides that surrender should take place within ten days after the order comes into effect, so therefore within 25 days after the order is made. By virtue of sub-s. (4)(c)(ii), the court when making the order for surrender must direct a number of things, but in particular: ‘ that the person be again brought before the High Court … if it appears to the Central Authority in the State that, because of circumstances beyond the control of the State or the issuing state concerned, that person will not be surrendered on the expiration referred to in sub-paragraph (i), before that expiration’. The expiration referred to there is in effect the 25-day period for surrender just referred to.

5

Sub-section (5) provides that where a person is brought back to the court pursuant to s. 16(4)(c), the court can extend the time for surrender ‘ if satisfied that, because of circumstances beyond the control of the State or the issuing state concerned, the person was not surrendered within the time for surrender under subsection (3A) or, as the case may be, will not be so surrendered’, or in any other case order that the person be discharged. The Minister now applies pursuant to s. 16(5) for an order extending the time for surrender in circumstances that will become apparent when I come to deal with the oral evidence. In that regard, I have been assisted by Mr. Laurence Masterson B.L. for the applicant Minister, and by Ms. Colleen Gildernew, solicitor for the respondent.

Evidence of Garda Terry Lawlor
6

Garda Lawlor, a member of the Garda Síochána extradition unit, gave evidence. As soon as the High Court order for surrender was made on 29th March, 2019, the Garda authorities notified Interpol straight away, who notified their counterparts in Hungary. Generally, the travel arrangements are proposed by the requesting country, and on 3rd April, 2019, the Hungarian authorities proposed such arrangements whereby officers would travel from Budapest to Dublin on 15th April, 2019 and return on 16th April, 2019, escorting the respondent. That was immediately accepted by the Irish side within about an hour of the proposal being received.

7

The Garda authorities then proceeded...

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