Attila Imre v District Court in Szolnok (Hungary)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Mr Justice Males |
| Judgment Date | 14 February 2018 |
| Neutral Citation | [2018] EWHC 218 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2697/2017 |
| Date | 14 February 2018 |
[2018] EWHC 218 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
and
Mr Justice Males
Case No: CO/2697/2017
Mark Summers QC and Jake Taylor (instructed by Birds, solicitors) for the Appellant
Benjamin Seifert (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 6 February 2018
Judgment Approved by the court
Introduction
This is an appeal by the appellant, Attila Imre, against the decision by DJ Coleman dated 2 June 2017 by which she decided that the European Arrest Warrant seeking the extradition of the appellant to Hungary was valid and ordered his extradition.
I shall have to trace the way in which the arguments have developed as further information has been provided by the requesting court. The appeal arises, however, as a result of the fact that the appellant was convicted in his absence by the District Court in Szolnok in Hungary after issue of the EAW, although his conviction is subject to appeal. In the light of this development it is submitted on his behalf that although the EAW was when issued an accusation warrant, (1) the appellant must now be treated as a person convicted in his absence for the purpose of deciding whether he should be extradited, (2) the EAW is invalid because it does not contain the information required in a conviction case, and (3) his extradition is barred by section 20 of the Extradition Act 2003.
Factual background
By an EAW issued on 27 November 2015 and certified on 9 March 2016 the extradition of the appellant to Hungary is sought in relation to an allegation that he blackmailed Erzsebet Erdos on 29 and 30 August 2013 in Szolnok, Hungary. The appellant's evidence is that he came to this country in or about November 2014 and has worked here in the catering trade.
As at the date of the EAW the appellant was accused of this offence but had not been convicted.
However, following a request for further information, the District Court in Hungary set out further information in a letter dated 10 April 2017 as follows:
(1) The offence was committed on 30 August 2013.
(2) The appellant was informed about the commencement of the criminal procedure on the same date during what was described as a “hearing as a suspect”. It appears from other evidence that this refers to the appellant being questioned by the police.
(3) The District Court issued an indictment on 29 November 2013 and posted it to the appellant, but the postal consignment was returned by the Post Office on 17 December 2013 with the remark “The addressee did not seek the consignment”.
(4) The appellant's representative received a summons for his trial on 21 July 2014. It was later clarified that this “representative” was a lawyer appointed to act for the appellant, who was appointed (but not by the appellant himself) on the day of the appellant's questioning by the police.
(5) The appellant's trial was due to take place on 15 September 2014. He was not present, despite having been properly summoned in accordance with Hungarian law by notification to his legal representative. The court ordered that he attend a further hearing on 10 November 2014.
(6) However, on 10 November 2014 the Szolnok police stated that the appellant was not present at his known place of domicile.
(7) On 6 January 2015 the appellant requested the withdrawal of a warrant for his arrest and announced that the summons should be sent to his place of domicile in Szolnok. He said that he was not living at that address but authorised his sibling to receive on his behalf postal consignments addressed to him. He did not give the address where he was living (which was in fact in the United Kingdom).
(8) On 9 January 2015 the court called on the appellant to announce his place of residence. However, on 29 January 2015 he wrote to say that he was not able to provide a new place of residence and requested that the summons be served to his registered place of residence.
(9) There was a further hearing of the appellant's trial on 23 March 2015. Once again he did not appear, although his legal representative had received the summons.
(10) On 6 April 2015 the police stated that they could not establish any other place of residence for the appellant.
(11) At a hearing over a year later, on 14 October 2016, the District Court heard evidence from three prosecution witnesses. The appellant was not present.
(12) In a judgment pronounced on the same day the appellant was found guilty and sentenced to imprisonment for two years and four months.
(13) The District Court also ordered the activation of a suspended sentence of imprisonment previously ordered for a different offence. This was for a period of one year and six months.
(14) The judgment of the District Court has been appealed by the appellant's appointed counsel and the procedure is currently at the appeal court.
The appellant's extradition hearing was due to take place on 13 April 2017 but was adjourned in the light of this further information in order to give the Hungarian authorities an opportunity to clarify the status of the EAW. However, no further information was provided before the adjourned hearing before the District Judge.
The District Judge expressly accepted the further information set out above as “completely reliable”. She found also, rejecting the appellant's evidence, that he had decided to leave Hungary without complying with his obligation to notify the authorities there of his change of address and that, by failing to provide a new address, he made it impossible for the authorities to find him. She was satisfied that the appellant was a fugitive from justice who had been aware of the proceedings in Hungary at all times and that the court in Hungary had eventually no choice but to proceed to a trial in his absence.
The judgment of the District Judge
The appellant's principal argument before the District Judge was that because the EAW was an accusation warrant and the appellant was now a convicted person, the requirements of section 2 of the 2003 Act were not satisfied. The EAW was therefore invalid.
The District Judge was satisfied that the warrant was an accusation warrant which was valid at the date of its issue and continued to be valid as an accusation warrant notwithstanding the appellant's subsequent conviction in Hungary. She reached this conclusion applying the decision of the House of Lords in Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724, stating:
“The RP was convicted but has appealed that conviction. As the ‘trial’ is a continuing process which has not been finally concluded the RP remains an accused person.”
Alternatively, she held, applying the decision of the Supreme Court in Zakrzewski v District Court in Torun, Poland [2013] UKSC 2, [2013] 1 WLR 324, that the EAW was valid at the date when it was issued and that its validity could not be challenged by reference to subsequent events.
She rejected the appellant's secondary argument that the proceedings constituted an abuse of process, saying that the appellant was a fugitive who was aware of the prosecution in Hungary throughout.
The grounds of appeal
In grounds of appeal and in a skeleton argument submitted for the present hearing, Mr Mark Summers QC and Mr Jake Taylor submitted that (1) Caldarelli does not establish any principle of law that a person remains “accused” and not “convicted” for the purpose of extradition law until any process of appeal is finally concluded; (2) if the appellant is (as he contends) now a convicted person, the EAW is invalid because it does not contain the matters required by section 2(5) and (6) of the 2003 Act; (3) even if the invalidity of the EAW could be remedied, extradition ought to have been made conditional upon a guarantee of a retrial pursuant to section 20 of the Act; and (4) even if the appellant remains an “accused” person, the EAW is nonetheless factually and legally misleading and the proceedings are an abuse of process. However, these submissions have to some extent been overtaken by events.
The further information dated 30 January 2018
In a letter dated 25 January 2018 the Crown Prosecution Service posed further questions to the District Court in Szolnok which provided its answers in a letter dated 30 January 2018. The District Court explained that there is as yet no judgment in the appeal proceedings which are continuing and that the criminal proceedings therefore have not yet been finally completed. It explained in paragraph 2 of the letter that the course which the appeal will take depends upon whether the appellant is extradited:
“If the extradition proceeding is successful, the appellate court will set a trial, and the accused will be heard during the trial, and if necessary, further evidence, as moved by the accused, will be taken.”
In response to a direct question whether the appellant is “accused or convicted”, the District Court replied that he “is currently accused.”
The District Court explained also that the counsel referred to in its letter dated 10 January 2017 had been appointed by the court to act for the appellant.
The information contained in the letters dated 10 April 2017 and 30 January 2018 comprises additional information provided in accordance with Article 15 of the Framework Decision of 2002 (Council Framework Decision 2002/584/JHA) as amended by the further Framework Decision of 2009 (2009/299/JHA). Such further information from the requesting court is admissible on an appeal to this court under section 26 of the Extradition Act 2003 and will be admitted where the interests of justice so require: Straszewski v...
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