Nazariy Hnus v Nyiregyhaza District Court (Hungary)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jeremy Baker |
| Judgment Date | 19 December 2019 |
| Neutral Citation | [2019] EWHC 3550 (Admin) |
| Date | 19 December 2019 |
| Docket Number | Case No: CO/1954/2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3550 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jeremy Baker
Case No: CO/1954/2018
Mr Benjamin Seifert (instructed by Sonn Macmillan Walker) for the Applicant
Miss Amanda Bostock (instructed by CPS Extradition) for the Respondent
Hearing date: 5 December 2019
Approved Judgment
On 19 April 2017 a European Arrest Warrant (“EAW”) was issued by the Nyiregyhaza District Court in Hungary (“the respondent”) for the arrest and extradition of Nazariy Hnus (“the applicant”).
The EAW was certified by the National Crime Agency (“NCA”) on 19 May 2017 and the applicant was arrested on 3 January 2018. The extradition hearing took place on 4 May 2018 before District Judge Coleman in the course of which four issues were raised under the Extradition Act 2003, namely,
i. Section 12 – Double Jeopardy
ii. Section 12A – Absence of a prosecution decision
iii. Section 21A(1)(a) – Article 3 ECHR
iv. Section 21A(1)(a) – Article 8 ECHR
In her judgment dated 11 May 2018 the District Judge determined each of those issues against the applicant and ordered his extradition to Hungary.
The applicant applied for permission to appeal in relation to two of these issues namely,
1. Section 12 – Double Jeopardy
2. Section 21A(1)(a) – Article 3 ECHR
The application was considered by Sir Wyn Williams on 15 August 2019 who adjourned the application and ordered a “rolled-up” hearing of the application and, if granted, the appeal.
The matter came before Holman J on 23 October 2019 who adjourned the hearing to enable further material to be provided which has now been done.
Section 12 – Double Jeopardy
The background to the matter, according to a Department for Work and Pensions summary report dated 22 November 2017, is that the Hungarian National Bureau of Investigation had been investigating a large-scale operation involving identity theft, forgery of official documents, misuse of Hungarian identities and related financial crimes. The investigation involved non-European Union citizens, mostly from Russia or Ukraine, fraudulently obtaining the private data of genuine Hungarian citizens and then using that data to apply for either Hungarian passports or identity cards. It was found that whilst the details of the name, date of birth and place of birth on the passports matched a genuine Hungarian citizen, the photograph and fingerprint details, where they were provided, matched the non-European Union citizen.
It became apparent that a number of Government officials had been involved in the processing of the false applications; the suspicion being that the Government officials had been bribed and were deliberately colluding in the issuing of the fake passports. The imposters then used the stolen identities to live, work and claim benefits in other European Union member states.
The applicant is a Ukrainian national who was born on 2 August 1985. According to the account he provided to the Metropolitan Police following his arrest on 7 November 2017, the applicant entered the UK in 2008 using his Ukrainian passport and a visa to gain admission. However, upon expiry of his visa he left the UK and travelled to Hungary as he had heard that he could get a Hungarian passport. Once in Hungary he paid 5000 Euros to a Russian speaking individual who supplied him with a passport in the name of “Sandor Balint” but with the applicant's photograph inserted into it. He then returned to the UK and continued to work using the name of Sandor Balint and, in order to do so, he used the passport as evidence of his identity in order to obtain a national insurance number SS430228A, which was issued to him.
Subsequent to his arrest by the Metropolitan Police, a decision was made to prosecute the applicant who appeared in the Crown Court at Isleworth on 6 December 2017 when he pleaded guilty to an indictment containing a single count which alleged his Possession of an Identity Document with Improper Intention, contrary to section 4(1) and (2) of the Identity Documents Act 2010. The particulars of the count being that
“… between 9 February 2015 – 7 November 2017 with improper intention, he had in his possession or under his control an identity document, namely a Hungarian Passport in the name of Sandor Balint, that was improperly obtained and that he knew or believed to have been improperly obtained.”
In opening the case for the purposes of sentencing, the prosecution informed the judge, The Honorary Recorder of The Royal Borough of Kensington and Chelsea, that the false passport had been issued on 23 January 2015 and then used by the applicant to re-enter the UK before applying for a national insurance number on 9 February 2015 which was issued to him on 17 December 2015, thereby enabling the applicant to work in the construction industry within the UK.
Following the opening, the judge sentenced the applicant to 12 months' custody. In his sentencing remarks the judge observed that the applicant was in possession of a passport which had been obtained from the Hungarian authorities and used it to enter the UK and obtain a national insurance number. The judge indicated that in assessing the nature and extent of the applicant's criminality, he had taken into account the case of R v Ovieriakhi [2009] EWCA Crim 452.
In the meantime, the respondent issued the accusation EAW on 19 April 2017 seeking the applicant's arrest and extradition in respect of,
“One count of felony of the forgery of administrative documents committed as an abettor under section 14(1) of Act C of 2012 on the Criminal Code (CC) by a public official as an accomplice, classified and punishable by virtue of CC Item (c) of Section 343(1).”
According to the EAW,
“i. The Criminal Department of the Szabolcs-Szatmar-Bereg County Police Headquarters is conducting an investigation under the number 24/2016. bu. against an unknown person who, on 22 January 2015, submitted an application for the issue of a private passport using the personal data of Sandor Balint who had been naturalised by the Head of the Hungarian State on 5 November 2014 at the Balkany Branch Office of the Nagykallo District Office of the Szabolcs-Szatmar-Bereg County Government Office. In line with the application, the private passport was produced (issued) under the number BH 0113213 with the personal data of Sandor Balint but bearing the photo of the unknown person. The identity of the person who had the passport issued with the personal data of Sandor Balint and with his own photo has not been hitherto established.””
ii. Pursuant to section 343(1)(c) of Act C of 2012 it is a felony punishable by imprisonment for a period between one to five years, for any public official who, by abusing their official competence, includes, falsely, any essential fact in an administrative document.
iii. Pursuant to section 14(1) of Act C of 2012 an abettor is a person who intentionally persuades another person to commit a crime.”
At the extradition hearing before the District Judge, it was submitted on behalf of the applicant that, because of the similarity between the offence in respect of which the respondent was seeking the applicant's extradition and the offence of which he had already been convicted and punished in the Crown Court, his extradition was barred under section 12 of the Extradition Act 2003.
The District Judge rejected the submission and determined that double jeopardy did not arise in this case. Her reasons for doing so were as follows:
“In this case there are two quite separate and distinct types of conduct although I accept that both are to do with the passport.
In Hungary, the mischief of the offending is abetting a public official to issue a false passport. It involves persuading a public official to commit a fraud. The date of the offending is 22 nd January 2015. This is a type of corruption.
The offending in the UK is the possession of the document with improper intention knowing it to have been improperly obtained. This relates to possession and to future conduct.”
At the date of the hearing before the District Judge there was an outstanding request for further information from the respondent concerning the issue of double jeopardy. The District Judge declined to allow an adjournment for this to be obtained. Since the hearing the further information has been received from the respondent which, although it is dated 8 May 2018, was not taken into account by the District Judge prior to her determination.
The further information is to the following effect,
“……the double jeopardy principle is not offended if [the applicant] gets surrendered to Hungary to conduct the criminal procedure.
The prosecution office stated that [the applicant] can be suspected with being an instigator to forgery of official documents committed by a public official.
…..according to the available data, [the applicant] was found guilty because he made use of the official document (passport), that was essentially real, only it was issued in another person's name, in order to be able to reside and work in the UK; it constitutes another...
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