Csaba Nemeth v Hungarian Judicial Authorities
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 10 February 2022 |
| Neutral Citation | [2022] EWHC 273 (Admin) |
| Docket Number | Case No: CO/1337/2021 CO/1358/2021 CO/1518/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 273 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/1337/2021
CO/1350/2021
CO/1358/2021
CO/1518/2021
Mary Westcott (instructed by Lawrence & Co) for Csaba Nemeth
Amelia Nice (instructed by Lawrence & Co) for Maria Lakatos
Louisa Collins (instructed by Hodge Jones & Allen) for Maria Horvath
Amanda Bostock and Hannah Burton (instructed by CPS) for the Requesting State
Hearing date: 3/2/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
A Third Judgment
This is the third judgment in a sequence. The first was [2021] EWHC 3366 (Admin) (“First Judgment”). The second was [2022] EWHC 224 (Admin) (“Second Judgment”) and I am continuing where I left off there (Second Judgment §§20–21).
Section 2 (particularisation: Csaba Nemeth)
I turn to deal with the Requesting State's application for permission to appeal in relation to the order of DJ Fanning (for this purpose, “the Judge”), discharging Mr Nemeth in relation to one of the alleged crimes which is the subject of one of his EAWs. This application was referred to in my First Judgment at §15.
Jurisdiction: no ‘cross-appeal’ issue
I will explain first why I see no “cross-appeal” issue calling into question the Court's jurisdiction. This application for permission to appeal has been referred to in the Court papers as a “cross-appeal”. That is because there is an extant application for permission to appeal, on various grounds, advanced by Mr Nemeth. A “cross-appeal” may raise a question as to jurisdiction. As I explained (see Second Judgment at §3), a “cross-appeal” by Marina Horvath was “withdrawn”, in circumstances where the Requesting State had been granted permission to appeal (see First Judgment §§9–14). As I explained, that withdrawal was considered to be appropriate, by the legal representatives for both parties in that case, in the light of dicta in USA v Assange [2021] EWHC 2528 (Admin) at §31.
No party has suggested that there is any similar ‘jurisdictional’ doubt or difficulty in relation to the application for permission to appeal by the Requesting State in Mr Nemeth's case. I agree with the parties that there is no ‘jurisdictional’ doubt or difficulty. I did not consider it necessary to hear submissions on the point. The situation is as follows. Mr Nemeth's case is one in which the Judge: (i) ordered Mr Nemeth's extradition on all but one matter; and (ii) ordered his discharge in relation to that one matter. That means there were two distinct orders, one of which was adverse to each party, which one could in principle be appealed. That means that either party is entitled – acting independently of what the other party does, and with no contingency involved – to be an appellant and pursue an appeal in relation to the Judge's order which was adverse to that party. This is very different from the situation identified in the dicta in Assange (whatever the rights and wrongs as to that). This is not a “cross-appeal” in the sense that it arose in Marina Horvath's case. She had been the subject of a single order, in her favour, discharging her (albeit that some of her arguments resisting extradition were rejected. Her “cross-appeal” depended on there first being an appeal by the Requesting State. There was no order from which she could be an appellant. Her cross-appeal involved a contingency. She would be raising arguments as to why – if it had been wrong in her case to order her discharge by reference to Article 8 ECHR arguments – it was also wrong to decline to discharge her by reference to other arguments. That would have been a contingency-based cross-appeal by a successful party, arising in the context of a favourable order, and only when the other (unsuccessful) party had chosen first to appeal and such an appeal was underway. That is clearly distinct from the situation in the present case. In the present case, in which the Judge made two orders, one of which is adverse to each party, it would be bizarre if a ‘race’ to file a notice of appeal determined the question of who was a proper appellant able to pursue an appeal, with some jurisdictional consequence serving to bar or defer the arguments which could be raised by the other party, in relation to a freestanding part of the order which was adverse to it.
On that basis, I am quite satisfied that it is appropriate that I deal with the application on its legal merits, as Counsel on all sides have invited me to do. By way of footnote, there is also this. In the present case, Mr Nemeth does not currently have permission to appeal. On one ground of appeal there is a stay of permission to appeal (First Judgment §3). On another series of grounds of appeal there is to be a hearing of applications for permission to appeal (Second Judgment §§4–10). On the section 12A ground of appeal I have refused permission to appeal (Second Judgment §§11–19). There is no extant appeal by Mr Nemeth, in which the application to which I am now turning would be the “cross-appeal”.
Substance
The discharge in relation to one of the alleged offences in EAW7 in Mr Nemeth's case was based on section 2(4)(c) of the 2003 Act. That provision requires “particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence”.
The argument on behalf of Mr Nemeth, which the Judge accepted, arose in relation to the offence of money laundering within Mr Nemeth's EAW7. As I have explained in the context of section 12A (Second Judgment at §11), EAW7 is an accusation EAW (issued on 1.12.20), which relates to 19 offences. The contents of the EAW describe Mr Nemeth as having committed 4 counts of fraud, 14 counts of attempted fraud and one count of money laundering (translated as “money laundry”). The description of the offences states that Mr Nemeth telephoned 18 named individuals, living in specified towns in Hungary, whose ages are given, as are the dates of the telephone calls. These were alleged ‘grandchild frauds’. The substance of the 18 phone calls told the persons who were telephoned – whose ages ranged from 61 to 97 – that a grandchild (or other relative or close acquaintance), who was being impersonated by Mr Nemeth on the call, had caused a road traffic accident and needed to pay a sum of money in order to avoid being pursued. The person who was telephoned was told that a reliable acquaintance would be sent to receive from them a handover of the amounts of money which were required. In the case of 4 of the 18 named victims – aged between 78 and 97 – the frauds were successful. Identified amounts of money were handed over by the victim to the courier. The courier in these cases is named (as Robert Szekelyfoldi). That leaves the money laundering offence. It is described in this way in the EAW: “Csaba Nemeth … intentionally persuaded Robert Szekelyfoldi … as courier[] to forward the amounts acquired by [him] using financial services in order to conceal the origin of the amounts”.
By way of comparison and contrast, there is Mr Nemeth's EAW4 (issued on 29.7.19), which relates to 31 offences including laundering of the proceeds of crime. Having first listed the occasions when similar phone calls were made by Mr Nemeth, EAW4 states that Mr Nemeth “instructed – the exact time cannot be determined – accomplices in Hungary to pay the funds originating from the offences to different persons but, in fact, to Csaba Nemeth … through the Western Union network”. The names of some of these “accomplices” are given and there is then within EAW4 a list of “exact amounts and dates” of transfers of various funds.
In discharging Mr Nemeth on the money laundering charge in EAW7, the essential reasoning of the Judge was as follows. By contrast with EAW4, which gave dates and amounts for transfers of monies, the money laundering allegation in EAW7 did not do this. The EAW7 allegation was in the nature of an “omnibus” description. In Von der Pahlen v Austria [2006] EWHC 1672 (Admin) the judgment at §§21 and 22 (which the Judge set out in full) included observations: that the section 2(4)(c) particulars “must include four elements: (1) the conduct alleged to constitute the offence; (2) the time and (3) the place at which he is alleged to have committed the offence; and (4) any provision of law under which the conduct is alleged to constitute an offence”; and that “a broad omnibus description of the alleged criminal conduct… will not suffice”. EAW7, so far as the money laundering offence was concerned, did not specify the time, date and place of the alleged money laundering. Unlike in EAW4, which specified the transactions alleged to amount to money laundering with a degree of particularity enabling Mr Nemeth to identify the particular allegations he faces “and to identify whether specialty is being infringed”, the same was not true in respect of money laundering in EAW7. Mr Nemeth cannot identify from EAW7 “the particular instances of money laundering with which he is accused” and “nor could his specialty rights be protected when it is impossible to discern the specific acts said to constitute that offending”. On that basis, it was appropriate to discharge Mr Nemeth in relation to this matter.
In my judgment, the Requesting State has satisfied the test of reasonable arguability in impugning as “wrong” this conclusion of the Judge (and this reasoning on which it is...
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