Laszlo Nikolics v The City Court of Szekszard (A Judicial Authority in Hungary)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Burnett: |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2377 (Admin) |
| Docket Number | Case No: CO/6227/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2013 |
[2013] EWHC 2377 (Admin)
The Hon Mr Justice Burnett
Case No: CO/6227/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Myles Grandison (instructed by Hodge Jones and Allen) for the Appellant
Hannah Hinton (instructed by the CPS) for the Judicial Authority
On 20 May 2013 District Judge Zani sitting at Westminster Magistrates Court ordered the extradition of the appellant to Hungary when he gave a reserved judgment. Hungary is a category 1 territory for the purposes of the Extradition Act 2003 ["the 2003 Act"]. There had been a contested extradition hearing on 29 April 2013. The appellant is wanted in Hungary to stand trial for one offence of theft alleged to have taken place on 13 November 2008. A European arrest warrant was issued by the City Court of Szekszard, Hungary on 5 April 2012 which was certified by the Serious Organised Crime Agency on 6 August 2012.
This is the appellant's appeal pursuant to Section 26 of the 2003 Act.
Before the District Judge the appellant had raised three issues. First, that the particulars provided in the European Arrest Warrant were inadequate for the purposes of Section 2(4)(c) of the 2003 Act. Section 2(4) requires the warrant to contain certain information including:
"(c) 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 and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence."
The argument advanced by the appellant was that further information provided by the Hungarian authorities demonstrated that the account contained within the warrant was inaccurate. The second issue concerned whether the description of the offence in the warrant amounted to an extradition offence for the purposes of Section 10 of the 2003 Act. The third issue arose under Section 13 of the 2003 Act. That provides
"A person's extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that –
(a) the Part 1 warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinion, or
b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."
The appellant is a member of the Roma community. His argument was that Roma people are subject to racial prejudice at the hand of Judges in Hungary. It was not suggested that the warrant was issued by reason of an extraneous consideration. It was the risks on return, relevant for section 13(b), that were advanced in support of this ground.
The District Judge rejected all those arguments. In this appeal Mr Grandison, who appears on behalf of the appellant, does not pursue the issue raised under section 10 of the 2003 Act. The issue relating to the particulars provided in the warrant has been reformulated in this appeal. It is argued that the disparity between the descriptions of the alleged offence found in the warrant and subsequent information provided by the Hungarian authorities has resulted in an abuse of process of the sort identified by the Supreme Court in Zakrzewski v. Regional Courts in Lodz Poland [2013]1 WLR 324.
The appellant contends that the District Judge reached the wrong conclusion on the issue raised under section 13(b) of the 2003 Act. In support of that ground the appellant has introduced additional material relating to the prevailing political situation in Hungary which has become available since the hearing before the district judge. Miss Hinton, who appears on behalf of the judicial authority in Hungary, recognises that it is appropriate that such material should be considered in the appeal.
The Abuse Argument
In Zakrzewski the Supreme Court decided that the validity of a warrant depended on whether the prescribed particulars were found in it and not on whether they were in fact correct. It was therefore not possible for a requested person to challenge the validity of a warrant which contained the prescribed particulars by producing, or relying upon, extraneous evidence which tended to show that the statements or information were wrong. The only juridical basis for an enquiry into the accuracy of the particulars in the warrant arose from the inherent right of the court to ensure that its process was not abused. In paragraph 13 of his judgment (with which the other justices agreed) Lord Sumption said this about the circumstances in which an abuse argument could be advanced:
"The statements in the warrant must comprise statutory particulars which are wrong or incomplete in some respect which is misleading (though not necessarily intentionally). Secondly, the true facts required to correct the error or omission must be clear and beyond legitimate dispute. The power of the court to prevent abuse of its process must be exercised in the light of the purpose of that process. In extradition cases it must have regard … to the scheme and purpose of the legislation. It is not therefore to be used as an indirect way of mounting a contentious challenge to the factual or evidential basis for the conduct alleged in the warrant, this being a matter for the requesting court. Third, the error or omission must be material to the operation of the statutory scheme. No doubt errors in some particulars (such as the identity or the offence charged) would by their nature be material. In other cases, the materiality of the error will depend on its impact on the decision whether or not to order extradition. The fourth observation follows from the third. In my view … the sole juridical basis for the inquiry into the accuracy of the particulars is the warrant is abuse of process. I do not think it goes to the validity of the warrant."
The particulars of the offence set out in the warrant are these,
"On 13 November 2008, at the Shell petrol station in Bonyhad, Nikolics Laszlo took possession of a motor vehicle (registration number: IRH-O88) belonging to Palsecz Csaba, resident of Bieserd, on the condition that he will pay for it via periodical payments. However, Nikolics Laszlo has not made any payments, neither has he returned the car to its owner. The vehicle location is currently unknown. The damage caused is 800,000 HUF."
The value of the car in sterling terms was about £2400.
In February 2013 the Ministry of Public Administration and Law wrote a letter, directed in substance to an assurance that Hungary would abide by its international obligations in connection with the prosecution of the appellant. It also provided further details of the circumstances of the alleged offence. In that document, reference was made to the evidence of three witnesses to support the contention that the appellant unlawfully misappropriated the vehicle. The essence of the information provided was that the appellant had obtained the car using an intermediary, Zoltan Orsos, and then disappeared with it. The paragraph within that document upon which Mr Grandison particularly relies is this:
"There is no credible data or testimony indicating that Laszlo Nikolics did in person promise the owner of the car to pay the instalments on the car. It is because the car was taken over by Zoltan Orsos, who had been commissioned to do so by Laszlo Nikolics, and who alleged to have been in the belief that the issue of consideration had been settled or was going to be settled by Laszlo Nikolics."
The document went on to explain that it appears that the appellant had no intention to pay for the car. A further document was provided on 29 March 2013 which set out in more detail the way in which the evidence in the case evolved. It confirmed that the owner was Csaba Palsecz. It described the involvement of two other witnesses in the process by which the appellant obtained the car and left without paying for it. The understanding was that he would pay, although there is no direct evidence relating to a promise to pay by instalments. The instalments complication appears to have arisen because the chain of people involved included another man, who was related to the owner. The car was given to him to sell in the expectation that he would secure payment, perhaps in instalments.
I confess to some difficulty in understanding the precise sequence of events set out in the two documents to which I have referred. They have been translated into English from the Hungarian but clearly by someone whose first language is not English. Mr Grandison objects that the warrant suggests a clear representation to pay for the car by instalments whereas the additional material does not rely upon that. I accept that he is right in that analysis but it does not seem to me that it makes any difference at all to the substance of the allegation against the appellant. It is that he took possession of a motor vehicle not belonging to him, to which he had no entitlement, in circumstances where he was expected to pay for it yet he had not done so because he had no intention of doing so.
Even if it is accepted that the suggestion in the warrant that he would pay...
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