Richard Benko v Law Enforcement Division of Veszprem County Court, Hungary
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TUGENDHAT,LORD JUSTICE DYSON |
| Judgment Date | 17 December 2009 |
| Neutral Citation | [2009] EWHC 3530 (Admin) |
| Docket Number | CO/7534/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2009 |
[2009] EWHC 3530 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Dyson
Mr Justice Tugendhat
CO/7534/2009
Joseph Middleton (instructed by Janes Solicitors) appeared on behalf of the Appellant.
Ben Lloyd (instructed by Crown Prosecution Service) appeared on behalf of the Respondent.
: The only issue remaining in this appeal arises under section 20 of the Extradition Act 2003. Appeals against other decisions by District Judge Purdy on 18th September 2009 were advanced but have been abandoned.
In his judgment of that date, the District Judge held that the appellant is entitled, under Hungarian law, to a re-trial in respect of one offence, for which he was tried in his absence, and at that re-trial he will be entitled to representation at public expense.
The Europe Arrest Warrant in this case requests the surrender of the appellant in respect of his conviction of some 16 different offences committed between 1996 and 2002. These convictions, in due course, resulted in the appellant being sentenced twice: first, a consolidated sentence of 4 years and 7 months, given on 30th June 2005; and, second, a sentence given on 13th June 2001 of 1 year and 10 months.
The offences included theft, assault, possession of firearms and explosives, and forgery. The appellant has been convicted of all but one of them in his presence. The issue in this case arises only in respect of that one conviction, which, it is agreed, was in his absence, namely an offence alleged to have been committed in January 2003. It is alleged in the European Arrest Warrant that the appellant tried to persuade the alleged victim, and witness, to an offence committed in 2002 to lie to the police.
On 8th February 2005 the appellant was sentenced to 1 year in custody for this offence and that was confirmed on appeal on 18th May 2009, but on 30th June that sentence was consolidated with a sentence of imprisonment of 4 years and 4 months to make the reduced consolidated total of 4 years and 7 months referred to above.
Section 20 of the 2003 Act reads as follows:
“ 20. Case where person has been convicted
(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a re-trial or (on appeal) to a review amounting to a re-trial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a re-trial or a review amounting to a re-trial, the person would have these rights—
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
It is common ground that the appellant was absent from the proceedings on 8th February 2005 and 18th February 2009 but that he did not deliberately absent himself. So the issues that arise are under section 20(5), namely whether the appellant would be entitled to a re-trial and, if so, under section 20(8), namely whether at the re-trial he would have the rights there set out.
The evidence before the court on these two questions was in the form of two letters from Dr Németh, a judge of the Hungarian judicial authority. The first letter, dated 12th June 2009, included the following:
“The concerned party was not summoned personally, neither was he informed in any other way of the date and place of the trial, as a result whereof decisions were taken in his absence, but after providing the convict with the said sentences, he shall be entitled to the following legal guarantees:
By virtue of Section 408(1)e.) of the Act XIX of 1998 on the Code on Criminal Procedure, in case of an act adjudicated by the definitive sentence of a court, a re-trial may be requested, if the sentence in the first instance case was passed at a trial held in absentia of the convict pursuant to Chapter XXV of the Act.”
The second letter from Dr Németh is dated 2nd July 2009 and it includes the following:
“2. In accordance with previous information, the convict may exercise all guaranteed rights in the re-trial, included defence, viewing of court files, submission of an appeal against procedural orders, et cetera.
3. For re-trial purposes, a re-trial petition must be filed for the defendant's benefit, there is no deadline for the submission of the petition. Such petition may be filed by the defendant's relatives, brothers and sisters, spouse or civil partner after his death.
The re-trial shall be governed by the same procedural rules as the first-instance proceedings. The court will conduct the full evidentiary procedure according to the re-trial petition.
4-5. The convict...
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