Mate Konczos v Law Court in Gyor (Hungary)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 03 December 2021 |
| Neutral Citation | [2021] EWHC 3287 (Admin) |
| Docket Number | Case No: CO/615/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3287 (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/615/2021
Myles Grandison (instructed by Dalton Holmes Gray Solicitors) for the Appellant
Amanda Bostock (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 16/11/21
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
Introduction
This extradition appeal raises questions concerning the application of the phrase “the person deliberately absented himself from his trial” in section 20(3) of the Extradition Act 2003 (“the 2003 Act”). As Swift J observed, when granting permission to appeal on the section 20 ground of appeal, those questions arise “in unusual circumstances”. As DJ McGarva (“the Judge”) said when ordering extradition: “This is an unusual case because in fact [the Appellant] has exercised his right to a retrial since the original European Arrest Warrant was discharged in 2016”. The Appellant also maintains Article 8 ECHR and abuse of process grounds of appeal. Swift J refused permission to appeal on those additional grounds, which Dove J subsequently directed be listed on a rolled-up basis together with the section 20 ground. The mode of hearing was in-person.
The Appellant is aged 36 and is wanted for extradition to Hungary. That is in conjunction with a conviction European Arrest Warrant (EAW2) issued on 27 May 2016 and certified by the NCA on 24 July 2019. The index offending is said to have taken place between March 2007 and May 2009. It is described as swindling and forgery, in the fraudulent operation of a business for car sales and leases. The Appellant came to the United Kingdom in 2009. He was tried in his absence in Hungary in 2014, for the index offending, and was convicted (“the 2014 Conviction”), being sentenced to 3 years 6 months custody. It is that 3 years 6 months custody to which EAW2 relates. Extradition on EAW2 was ordered by the Judge on 18 February 2021 after an oral hearing on 14 January 2021. The Judge was satisfied as to Article 3 ECHR compatibility, by reason of a prison assurance which the Respondent had provided in September 2020. Article 3 ECHR is not relied on as a ground of appeal, though it and the position regarding the timing of the prison assurance feature in the argument. It was common ground that the Appellant had “probably been unaware” of the proceedings which led to the 2014 Conviction, and the Judge accepted that the Appellant had not “deliberately absented himself from his trial” so far as the 2014 Conviction was concerned. The Judge also accepted that the Appellant no longer had an automatic future entitlement to a retrial in Hungary, as he had done when EAW2 was issued. The Judge held that extradition was not incompatible with section 20, nor with Article 8, nor an abuse of process.
The Appellant had been discharged in previous extradition proceedings. A previous conviction EAW (EAW1) had been issued on 15 January 2015, relating to the same index offending and the same conviction and sentence as were later to become the subject of EAW2. There were also at that earlier time two accusation EAWs in relation to other matters. The Appellant had been arrested on EAW1 and had come before the Westminster magistrates' court. It had been established by the decision of the Divisional Court in in GS v Hungary [2016] EWHC 64 (Admin) [2016] 4 WLR 33 (21 January 2016) that a specific prison assurance (in relation to both pre-conviction remand and post-conviction custody) was needed in Hungarian extradition cases. The Appellant was discharged on EAW1 by DJ Grant (16.5.16) after an oral hearing (5.5.16), because the Respondent had failed to comply with directions to provide the required prison assurance, a direction made most recently at the oral hearing (5.5.16).
Eleven days after the discharge of the Appellant on EAW1 (and on the two accusation EAWs) by DJ Grant (16.5.16), the Respondent issued EAW2 (27.5.16). The Metropolitan Police Service (“MPS”) promptly made the Appellant aware of EAW2. EAW2 was not certified until more than three years later (24.7.19) and the Appellant was not arrested on EAW2 until a further year had passed (17.6.20) when he was released on bail. The GS prison assurance followed (29.9.20) and the oral hearing was scheduled (14.1.21). The reason why EAW2 was not being executed during the period after May 2016 is given in an email dated a year later (2.5.17) written to the Appellant's Hungarian lawyer (Dr Csire) by the MPS officer dealing with case (“the MPS Email”). It said this:
I was … informed that [the Appellant] had been in contact with solicitors and the courts in Hungary and that it was agreed to re-open his conviction case … and that a court date had been set for April 2017. [The Appellant] was continually making contact with me, expressing his wish to return to Hungary to have the case heard and in order not to delay this, [EAW2] was not executed as this could have delayed the process by months if he did not consent to his extradition .
EAW1 had recorded that the Appellant had a guaranteed entitlement to a future retrial in Hungary, should he request this following any surrender. After discharge of EAW1, but having been told about EAW2, the Appellant decided to pursue the possibility of retrial in Hungary. He instructed Dr Csire to act for him in that endeavour. On the Appellant's behalf, Dr Csire made two requests in July 2016. The first July 2016 request was the Appellant's request for a retrial. This was approved by the Hungarian courts on 12 September 2016. Trial dates were set and there were summonses for the Appellant's attendance: a summons on 7 February 2017 to attend trial on 25 April 2017; a summons on 9 October 2017 to attend trial on 21 November 2017; and ultimately a summons on 23 November 2017 to attend trial on 23 January 2018 (“the 2018 Retrial Hearing”). The second July 2016 request was a request for the suspension of the domestic Hungarian sentence of 3 years 6 months from the 2014 Conviction, and with it the suspension of EAW2. This second request was refused by a ruling of the Hungarian courts on 26 January 2017. This was on the basis that the domestic Hungarian sentence remained extant, unless and until set aside on a successful retrial. That ruling was upheld on appeal on 17 March 2017. What followed was described by the Appellant – in the proof of evidence (3.8.20) which he adopted in evidence at the hearing before the Judge – as “a deadlock” where “I would not be able to travel for fear of being arrested”. The relevant domestic Hungarian law (known as section 409(3)) provided for the retrial to be “terminated” without consideration of the evidence – and the guaranteed right of retrial extinguished for the future – if the defendant in the retrial had ‘left for an unknown place’. The position taken by Dr Csire on the Appellant's behalf, set out in a communication to the Hungarian court (13.6.17), was that the Appellant was “unable to leave England voluntarily”. That contention relied on the MPS Email (itself forwarded to the Hungarian court) which described the Appellant as “unable to travel as he would have been arrested at any border that he crossed and placed into custody, delaying the case further”. Dr Csire was able to give the Hungarian court a known UK address for the Appellant. At the 2018 Retrial Hearing (23.1.18) the Hungarian court was unimpressed by Dr Csire's contention that, because “the arrest warrant issued in connection with the final sentence was still in effect”, the Appellant's “freedom of movement extended up to the border of the United Kingdom, and he could not leave voluntarily”. The Hungarian court reminded itself of its earlier rulings (26.1.17 and 17.3.17), refusing the Appellant's second July 2016 request to suspend the Hungarian sentence. It reminded itself of the various summonses. It terminated the retrial proceedings (“the 2018 Termination”), pursuant to section 409(3), on the following basis:
In the view of the court the [Appellant] does not acknowledge the court's decision taken with regard to suspending the sentence. It was the [Appellant] himself who caused and persisted in maintaining the situation which had developed. The [Appellant] clearly does not want to return to th[is] country in a manner whereby the arrest warrant is valid concerning the relevant sentence. It is the [Appellant] himself who is obstructing the proceedings … The situation related – and attributable – to [the Appellant] is as if he had gone to somewhere unknown. For retrial proceedings requested by the [Appellant] it is not sufficient for the place of residence to be known, as the [Appellant] has not attended the trial as a result of the reasons referred to and he does not accept the court's decisions, therefore the court, pursuant to the mandatory provision of … Section 409 paragraph (3), has terminated the retrial proceedings .
The 2018 Termination was challenged by Dr Csire but it was upheld and maintained by subsequent rulings: 6 June 2018; 27 April 2019 and 13 June 2019. The Hungarian courts did not accept Dr Csire's submission that the termination had been unlawful in Hungarian law, because a known UK address could not be treated as equivalent to having ‘gone to somewhere unknown’. The guaranteed right of retrial was extinguished for the future. The retrial court did not conduct a hearing on the evidence and merits (which I will call “an EMH”) and Dr Csire did not get to make the Appellant's defence before it.
In all these circumstances, when the...
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