Asztalos v Szeksard City Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 12 February 2010 |
| Neutral Citation | [2010] EWHC 237 (Admin) |
| Docket Number | CO/10007/2009,Case No: CO/10007/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 February 2010 |
[2010] EWHC 237 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT
Before : Lord Justice Aikens
Mr Justice Openshaw
Case No: CO/10007/2009
Mr James Lewis QC and Mr Daniel Jones (instructed by Central Law Practice, Wembley Park, Middlesex) for the Appellant
Miss Gemma Lindfield (instructed by the CPS Extradition Section) for the Respondent
Hearing dates: 28 th January 2010
Lord Justice Aikens :
This is the judgment of the court to which each of us has contributed.
This is a statutory appeal pursuant to section 26 of the Extradition Act 2003 (“the Act”), against the decision of District Judge Evans, given on 2 September 2009, by which he ordered the extradition of the appellant Balazs Asztaslos (“the appellant”) to Hungary to face trial for one alleged offence of sexual assault on a child under the age of 12 and two alleged offences of abuse of a minor. The alleged offences concern the appellant's daughters.
Shortly after the notice of appeal was lodged, seemingly as the result of a most regrettable administrative error on the part of the British authorities, the appellant was sent back to Hungary. He remains in Hungary where he is held on remand in relation to the criminal proceedings for which his extradition was requested. On the appellant's behalf it is argued that the erroneous removal of the appellant did not extinguish his statutory right of appeal and that the Court should hear the appeal in the normal way. Certainly it would be most unjust if he were to be deprived of his right of appeal by an error on the part of the British authorities when an appeal was pending. Miss Lindfield, on behalf of the Respondent, without conceding the point of principle, has agreed that we should first hear the case on its merits, because she agrees that if the appeal is dismissed on its merits, there is no need to rule upon the point of jurisdiction. That is what we shall do.
On behalf of the appellant, Mr James Lewis QC takes two points. First, he submits that the European Arrest Warrant (“EAW”) that was issued on 26 May 2008 by the Szekszard City Court in Hungary, was not issued for the purposes of Mr Asztaslos being prosecuted within the meaning of section 2(3)(b) of the Act. Secondly, Mr Lewis submits that some of the offences under Hungarian law for which the appellant is sought are not “extradition offences” within section 64(3) of the Act. Mr Lewis had originally proposed to argue further points but we understood during argument that those are not now to be pursued.
Issue One: The validity of the EAW —was it issued for the purpose of the appellant being prosecuted?
Mr Lewis QC argues that the EAW was not issued for the purpose of conducting a prosecution but for the purpose of conducting an investigation. He submits that EAW therefore failed to comply with the requirements section 2(3)(b) of the Act and consequently it is not a valid EAW within Part 1 of the Act. For the Respondent Miss Lindfield argues that it is clear that the EAW was issued of the purpose of the appellant being prosecuted and not simply to enable him to be questioned further with a view to his possible prosecution.
Section 2(2) and (3) of the Act provide:
“(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
It is also necessary to refer to section 202 of the Act, which is headed “Receivable documents”. That section provides:
“……
202 Receivable documents “
(1) A Part 1 warrant may be received in evidence in proceedings under this Act.
(2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
(3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
(4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies—
(a) it purports to be signed by a judge, magistrate or other judicial authority of the territory;
(b) it purports to be authenticated by the oath or affirmation of a witness.
(5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act.
…..”
As is now well known, Part 1 of the Act was passed to discharge the United Kingdom's duty to transpose into national law the obligations imposed on it by the Council Framework Decision on the European Arrest Warrant and surrender Procedures between member states of the European Union dated 13 June 2002 (“the Framework Decision”). The history of its genesis is set out in paragraphs 2 – 4 of the speech of Lord Bingham of Cornhill in Office of the King's Prosecutor, Brussels v Armas and others [2005] UKHL 67, [2006] 2 AC 1 (“the Armascase”). Recital (5) of the Framework Decision states:
“The objective set for the [European] Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purpose of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures”.
Recital (10) states:
“The mechanism of the European arrest warrant is based on a high level of confidence between member States…”
By Article 34(2)(b) of the Framework Decision, member states were left the choice of form and methods to achieve the results at which the Framework Decision aims between member states. The United Kingdom has taken full advantage of this liberty. Part 1 of the Act did not use the drafting technique of simply transposing the relevant provisions of the Framework Decision into an Act of Parliament; nor did it put them in a schedule to a short Act. Instead, Part 1 uses its own words and this has given rise to case law as a result. However, it is well established that the wording of the provisions of Part 1 of the Act in general and section 2 in particular must be construed on the assumptions that, first, Parliament did not intend the provisions of Part 1 of the Act to be inconsistent with the Framework Decision and, secondly, that whilst Parliament might properly provide for a greater measure of cooperation by the UK than the Framework Decision required, it did not intend to provide for less. See: the Armascase at para 8, per Lord Bingham of Cornhill.
Article 1 of the Framework Decision states:
“1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member states shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”
Article 2 of the Framework Decision sets out the scope of the EAW. Article 8 of the Framework Decision sets out the content and form of the EAW. It provides:
“1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
……
evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;
the nature and legal classification of the offence, particularly in respect of Article 2;
a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person”.
The Annex to the Framework Decision sets out the form of the EAW referred to in Article 8. In the English language version of the Annex, the front page of the EAW is as follows:
“EUROPEAN ARREST WARRANT
This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”
We note two points here. First, there is no provision in the 2003 Act that dictates that the form of EAW to be used in connection with an application for extradition (or in the Framework Decision terms, surrender) to a category 1 territory must be that set out in the Annex to the Framework Decision. However, it is plainly the intention of the Framework Decision that this form should be used as a standard and uniform template for requests for surrender under the...
To continue reading
Request your trial
-
Silviu Utoiu v Ploiesti Court of Law Romania
...in his skeleton argument refers to a large number of authorities. However, in the case of Asztaslos v Szekszard City Court, Hungary [2010] EWHC 237 (Admin) the court carried out an extensive review of the authorities in this area and gave clear guidance as to the approach to be taken by exe......
-
Boruk v Regional Court in Szczecin, Poland
...20 For what it is worth, it is my judgment that the principle set out in paragraph 38 of Asztaslos v Szekszard City Court, Hungary [2010] EWHC 237 (Admin) by Aikens LJ is applicable and, in particular, the requirement to look at an accusation warrant as a whole to see whether it is unequivo......
-
Julian Assange v Swedish Prosecution Authority
...the guidance given in Ismail; we agree with the similar observations of Aikens LJ in Asztaslos v The Szekszard City Court in Hungary [2010] EWHC 237 (Admin) at paragraphs 16–19. We were referred to statements made in Parliament by Ministers, but we do not consider it necessary to refer to ......
-
Shiraz Ahmed v Swedish Economic Crime Authority
...possible doubt as to the purpose for which the EAW was issued in the way that this court in Asztaslos v Szekszard City Court Hungary [2010] EWHC 237 (Admin), [2011] 1 WLR 252 at [38(6)] said should not happen. Indeed, the written and oral submissions on behalf of the appellant sought to do......
-
Recent Developments In Extradition Appeals
...on the evidence before the district judge was underlined again in the recent case of Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin). In this case the defendant had been extradited to Hungary as the result of an administrative error while extradition proceedings were s......