The Minister for Justice and Equality v Zsolt Siklósi

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 21 July 2021
• Neutral Citation: [2021] IECA 210
• Court: Court of Appeal (Ireland)
• Docket Number: Record No 2021/8

In the Matter of the European Arrest Warrant Act 2003 (As Amended)

Between

The Minister for Justice and Equality

Applicant/Respondent

and

Zsolt Siklósi

Respondent/Appellant

[2021] IECA 210

Birmingham P

Edwards J

Collins J

Record No 2021/8

THE COURT OF APPEAL

European arrest warrant – Surrender – Reference – Respondent seeking the surrender of the appellant – Whether the appellant’s surrender would amount to a breach of his fundamental rights

Facts: The High Court (Binchy J) on 18 December 2020 directed the surrender of the appellant, Mr Siklósi, to Hungary on foot of a European arrest warrant issued by the Tarabánya Court of Appeal on 27 July 2017 (the EAW). Binchy J was persuaded to give a certificate pursuant to s. 16(11) of the European Arrest Warrant Act 2003 permitting Mr Siklósi to pursue an appeal to the Court of Appeal. Three points of law of exceptional public interest were identified in the High Court’s order of 18 December 2020. The fundamental point made by the appellant was that there was a “qualitative difference” between the position considered by the Court of Justice of the European Union (CJEU) in Case C-571 PPU Samet Ardic (Ardic) and the position where a suspended sentence was activated as a result of a further criminal conviction; where that further conviction followed from a trial conducted in absentia, Article 6 of the European Convention on Human Rights (ECHR) was clearly engaged and, at least in the absence of any evidence of waiver it would be a breach of Article 6 to surrender the person concerned in such circumstances. The appellant cited Othman v UK (2012) EHRR 4389 as authority for the proposition that a “flagrant denial of justice” would occur if he was surrendered and thus, exceptionally, surrender could be refused on that basis. It was submitted that the order made by the Miskolc Court of Appeal in June 2012, which (inter alia) ordered the enforcement of the sentence imposed on the appellant for 2005 offences was properly to be regarded as a penalty imposed on him and it followed that the proceedings before that court were properly to be regarded as an essential element of the “trial resulting in the decision” for the purposes of Article 4a of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States. It was submitted that, in the circumstances, a reference to the CJEU was appropriate. The respondent, the Minister for Justice and Equality, maintained that none of those arguments availed the appellant having regard to the CJEU’s decision in Ardic. The Minister’s position was that the threshold for a refusal of surrender under s. 37 of the 2003 Act was a very high one and the appellant had failed to discharge the burden on him in that respect.

Held by Collins J that, for the reasons that he had set out in the judgment which he had given in Minister for Justice and Equality v Szamota [2021] IECA 209, he considered that the questions raised by the certified points were such that a decision on those questions from the CJEU was necessary to enable the Court to give judgment on those points and that it was therefore appropriate to exercise the Court’s power to make a reference to the CJEU under Article 267 of the Treaty on the Functioning of the European Union. The Court had had the benefit of submissions from the parties as to the form of questions to be referred in the event that the Court concluded that such a reference was appropriate. The Court had regard to those submissions in formulating draft questions. Collins J dismissed the appeal based on the non-certified grounds.

Collins J held that the appeal would be stayed pending the ruling of the CJEU on those questions.

Referred to CJEU.

No redactions required

JUDGMENT of the Court delivered by Mr Justice Maurice Collins on 21 July 2021

PRELIMINARY

1 The issues in this appeal overlap to a significant degree with the issues arising in another appeal in which this Court gives judgment today, Minister for Justice and Equality v Szamota [2021] IECA 209. This judgment should be read with the Court's judgment in Szamota.

2 In Szamota, the Court has concluded that, having regard to the importance and complexity of the questions raised by the points of law certified by the High Court pursuant to section 16(11) of the European Arrest Warrant Act 2003 (as amended) ( “the 2003 Act”), it is appropriate to exercise this Court's power to make a reference to the Court of Justice of the European Union (CJEU) pursuant to Article 267 of the Treaty on the Functioning of the European Union.

3 Materially identical points of law were certified by the High Court in these proceedings and in the circumstances the Court also considers it appropriate to make a reference to the CJEU. The questions which the Court proposes to refer are set out at the conclusion of this judgment.

4 Other grounds of appeal, falling outside the scope of the certified points of law, were also advanced on Mr Siklósi's behalf. These grounds are addressed in this judgment and, for the reasons which will be set out, I would reject Mr Siklósi's appeal on those grounds.

5 In the circumstances, this appeal will be stayed pending the CJEU's ruling on the questions to be referred.

FACTS

6 The Appellant, Mr Siklósi, appeals from an Order made by the High Court (Binchy J) on 18 December 2020 directing his surrender to Hungary on foot of a European Arrest Warrant issued by the Tarabánya Court of Appeal on 27 July 2017 (“ the EAW”). That Order was made consequent on the Judgment of the High Court given on 15 December 2020.

7 The relevant facts are set out in that Judgment. Briefly, Hungary seeks the surrender of Mr Siklósi for the purpose of his serving the remaining 11 months of a one year term of imprisonment imposed on him following his conviction for four offences arising from incidents of domestic violence directed at his former spouse, his child and mother-in-law, including assaulting his former spouse and false imprisonment of her and their child. These offences were committed in August 2005 and I shall refer to them as the “ 2005 Offences”.

8 Section (b) of the EAW identifies the relevant enforceable judgments as a judgment of Encsi Municipal Court (as the court of first instance) of 10 October 2006 and a judgment of the Borsod-Abaúj Zemplén Court (as the court of second instance) of 19 April 2007. Section (d) of the EAW indicates that Mr Siklósi “had appeared in person at the trial resulting in the decision”. As will become apparent, while Mr Siklósi was present at the proceedings before the Encsi Municipal Court, he was not present at the Borsod-Abaúj Zemplén Court but he was represented by his chosen defence counsel.

9 Section (f) of the EAW refers to a later decision of the Encsi Municipal Court (of 13 December 2011) and a judgment of the Miskolc Court of Appeal as a court of second instance which, it is said, became final on 12 June 2012 and it is stated that an earlier EAW had been withdrawn as a retrial had been ordered. The EAW then states that retrial had subsequently been denied and the EAW then refers to further judgments of the Encsi Municipal Court (of 24 October 2016) and of the Miskolc Court of Appeal (which became final on 29 March 2017). At that point (so the EAW recites) “the sentence became enforceable again”. The EAW does not give any information about the subject-matter of those later judgments.

10 Unsurprisingly, the terms of the EAW prompted a request for further information and that further information in turn prompted a further request for information and so on. Ultimately, seven requests for further information were made and replied to. The picture that emerges from the further information may be summarised as follows:

• • On 10 October 2006, the Appellant was convicted of the 2005 Offences by the Encsi Municipal Court, following a trial held on 23 May 2006 and 10 October 2006. The Appellant was present at this trial.

• • On 19 April 2007, the Appellant was convicted at second instance of the 2005 Offences by the County Court of Borsod-Abaúj Zemplén. The Appellant was duly summoned to appear at this hearing. While he did not appear personally, he was represented by his chosen defence counsel.

• • As a result of these convictions, the Appellant was sentenced to one year's imprisonment. However, execution of that sentence was suspended for a two year probation period which was due to expire in April 2009.

• • The Appellant had spent a month in custody in April/May 2006, leaving a maximum of 11 months to be served (that balance being suspended as per above).

• • In December 2010, the Appellant was convicted at first instance by the Encsi Municipal Court of an offence of failing to pay child support. I shall refer to that offence (which is said to have been committed in 2008) as the “ Child Support Offence”. The Appellant was present at the hearings held on 15 November and 13 December 2010 but was not present when the Court gave its decision on 16 December 2010. The Encsi Municipal Court imposed a fine on the Appellant. It did not make any order in respect of the sentence imposed on the Appellant for the 2005 Offences.

• • The decision of the Encsi Municipal Court was appealed, though it is unclear whether that appeal was brought by Mr Siklósi or by the prosecuting authorities. In any event, in June 2012, the Miskolc Court of Appeal varied the sentence and in lieu of a fine sentenced the Appellant to 5 months imprisonment, banned him from public affairs for 1 year and ordered the enforcement of the sentence imposed on him for the 2005 Offences. The Appellant was summoned to attend the hearing before the Miskolc Court of Appeal but the summons was not collected. That was considered due service under Hungarian law. The Appellant was not present at the hearing but the Court appointed a defence...