Szilard Bellencs v Hungary
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 11 September 2023 |
| Neutral Citation | [2023] EWHC 2235 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3554/2021 |
[2023] EWHC 2235 (Admin)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: CO/3554/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Smith (instructed by Taylor Rose MW) for the Appellant
Hannah Burton (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 19 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Monday 11 September by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal pursuant to section 26 of the Extradition Act 2003 (“the 2003 Act”) from the decision of District Judge Ezzat (“the DJ”) handed down on 13 October 2021 to order the extradition of the Appellant to Hungary.
The Appellant's extradition is sought in relation to two European Arrest Warrants (“AW”) as follows:
i) A conviction AW issued on 19 November 2018 and certified on 7 December 2018 in relation to 48 offences committed between March 2010 and February 2013 (“AW1”); and
ii) A conviction AW issued on 28 October 2019 and certified on 12 October 2021 in relation to eight offences committed between August 2012 and August 2013 (“AW2”).
This appeal is only concerned with five of the offences listed in AW1, namely offences 14, 15b, 16b, 17b and 26, in relation to which the Appellant was convicted by the District Court of Siófok. On 15 December 2022 Swift J granted permission to appeal at a renewed permission hearing on the sole ground that these offences are not extradition offences within the meaning of sections 10 and 65 of the 2003 Act. The Appellant argues that the conduct in question would not constitute an offence under domestic law, so that the dual criminality requirement is not satisfied. Permission to appeal on all other proposed grounds was refused by Swift J.
As I set out in further detail below, the issue in respect of offences 14, 15b, 16b and 17b (“the forgery offences”) is whether the conduct described in AW1 and in the Respondent's Further Information would constitute offences under sections 1 and/or 3 of the Forgery and Counterfeiting Act 1981 (“the 1981 Act”); and the issue in respect of offence 26 (“the copyright offence”) is whether the conduct described in those documents would constitute an offence under section 1 of the Computer Misuse Act 1990 (“the 1990 Act”).
The dual criminality issue was not raised at the extradition hearing, where the Appellant was unrepresented. The Respondent has not objected to the issue being raised for the first time in this appeal.
The structure of this judgment is as follows:
i) The material circumstances: paras 7 – 19;
ii) The legal framework: paras 20 – 51;
iii) Dual criminality and the forgery offences: discussion and conclusions: paras 52 – 63;
iv) Dual criminality and the copyright offence: discussion and conclusions: paras 64 – 82;
v) Overall conclusions and outcome: paras 83 – 84.
The material circumstances
The arrest warrant
AW1 was issued by the Law Court of Veszprem in Hungary on 19 November 2018. It is a conviction warrant, based upon decisions of the District Court in Veszprem (no.6.B.924/2013/16), the Regional Court of Veszprem (no. 2.Bf.476/2015/6), the District Court of Siófok (no. 5.B.235/2012/61) and the Regional Court of Tatabanya (no. 3Bk.531/2012/2) in relation to 48 offences. In total, the Appellant is wanted to serve 4 years and 4 months imprisonment. The term of imprisonment imposed in respect of the 26 Siófok offences was 1 year and 6 months.
As I indicated in the Introduction, this appeal is concerned with offences 14, 15b, 16b, 17b and 26 of the Siófok offences. The convictions referred to as 15b, 16b and 17b are part of a pair of offences. I will set out the corresponding limb “a” offences as well, as this assists in understanding the nature of the Appellant's conduct. The relevant offences as specified in Box E of AW1 are as follows:
“I/14.
At 13:52 on 15 July 2010, 1st defendant Szilárd Bellénes was posting a parcel to be paid by cash on delivery at the Dombovar Office no 1 of Magyar Posta Zrt. The parcel was addressed to Mrs Pál Tolnai. 1st defendant Szilárd Bellénes fraudulently indicated himself as Ákos Éves Falusi as sender of the parcel and Dombóvár, Zrinyi u. 5. as his address on the receipt of the recorded mail. The 1st defendant Szilard Bellenes used the receipt of the recorded mail at the Dombóvár Office no 1 of Magyar Pasta Zrt.
I/15. a)
On 23 July 2010, Richárd Németh, the aggrieved party, a resident of Bonyhád and 1st defendant Szilárd Bellénes agreed that the latter would sell a LP GT 500 mobile phone worth HUF 16,000 (plus postage) to the aggrieved party. The parcel to be paid by cash on delivery sent by the defendant was received by the aggrieved party on 28 July 2010. However, there were only two old useless long-play cassettes in the parcel.
The financial loss in an amount of HUF 17,000 had not been recovered. The aggrieved party has filed a civil action.
b)
While posting the parcel to be paid in cash on delivery to the aggrieved party, 1st defendant Szilárd Bellénes used the name Ákos Falusi as the name of the sender and 7200 Dombóvár, Dombó Pál u. 17. fsz.2. as the sender's address on the return receipt of the recorded mail. The 1st defendant Szilárd Bellénes used the receipt of the recorded mail at the Dombóvár Office no l of Magyar Posta Zrt on 27 July 2010.
1/16. a)
István Plecskó, the aggrieved party, a resident of Zalaegerszeg and 1st defendant Szilárd Bellénes agreed that the aggrieved party would purchase a computer processor for HUF 17,500 from the 1st defendant. However, the aggrieved party received an empty audio cassette sent by 1st defendant in a parcel to be paid in cash on delivery on 29 July 2010.
The financial loss caused by the 1st defendant in an amount of HUF 17,500 had not been recovered. The aggrieved party has filed a civil action for collection.
b)
While posting the parcel to be paid in cash on delivery to the aggrieved party, 1st defendant Szilárd Bellénes used the name Ákos Falusi as the name of the sender and 7200 Dombóvár, Dombó Pálu. 17. fsz.2. as the sender's address on the return receipt of the recorded mail. The 1st defendant Szilárd Bellénes used the receipt of the recorded mail at the Dombóvár Office no 1 of Magyar Posta Zrt on 27 July 2010.
1/17. a)
In June 2010, Csaba Tóth, the aggrieved party, a resident of Alattyán and 1st defendant Szilárd Bellénes agreed that the aggrieved party would purchase a computer and a monitor worth HUF 17,000 from the 1st defendant. On 27 June 2010, Csaba Tóth received a parcel to be paid in cash on delivery from the defendant. His wife paid the purchase price, i.e. HUF 17,000 plus HUF 1,650 in postage. Contrary to the agreement, the parcel contained an old useless typewriter.
The financial loss in an amount of HUF 18,650 had not been recovered. Csaba Tóth has filed a civil action.
b)
While posting the parcel to be paid in cash on delivery to the aggrieved party, 1st defendant Szilárd Bellénes used the name Ákos Falusi as the name of the sender and 7200 Dombóvár, Dombó Pál u. 17. fsz.2. as the sender's address on the return receipt of the recorded mail. The 1st defendant Szilárd Bellénes used the receipt of the recorded mail at the Dombóvár Office no 1 of Magyar Posta Zrt on 27 July 2010.
I/26.
1st defendant Szilárd Bellénes has an Acer notebook. Between 19 July 2010 and 1 August 2010 he used various copyrighted programmes that he had copied illegally on a WD 1200BEVS 120 Gbyte hard disc. As a result he incurred damage in the amount of HUF 437 600 to the distributors ../ITT JON EGY TÁBLÁZATOS FELSOROLÁST. AMELYET A KONVERTER MÉG ANNYIRA SEM TUDOTT KEZELNI. MINT A SZÖVEGET listed below, which could not recover their losses.
Alexander Roshal – 1 — HUF 8,400
Axhampoo Development GmbHCo.KG – 1 — HUF 10,500
Atomix Productions – 2 — HUF 89,900
Digital 1 Media, Inc – 1 — HUF 41,800
ESET — 2 — HUF 31,000 (?)
Microsoft Corporation – 3 — HUF 118,000
Native Instruments GmbH – 2 — HUF 111,000
Nero AG – 1 – HUF 7,800
Nullsoft Inc – 1 – HUF 4,200
Scawen Roberts, Eric Bailex, Victor van Vlardingen – 1 — HUF 8,000
Uniblue Systems Limited – 1 – HUF 7,000.”
Further Information
Further Information dated 18 February 2023 was provided in relation to these offences as follows:
i) In relation to offence 14, the Appellant “tried to disguise his identity” and he “imagined a new identity as to be hidden from the victim”. He acted dishonestly as he “filled and signed a postal delivery note as a non-existing person” and “[b]y that conduct he committed the misdemeanour of using a forged private document”. No loss was caused. The conduct “cannot be linked with fraud, but a use of [a] forged private document”;
ii) In relation to offence 15(b), the Appellant “tried to disguise his identity” and he “imagined a new identity as to be hidden from the victim”. He acted dishonestly as he “filled and signed a postal delivery note as a non-existing person” and “[b]y that conduct he committed the misdemeanour of using a forged private document”. No loss was caused. The conduct “cannot be linked with fraud, but a use of [a] forged private document”;
iii) In relation to offence 16(b) the Appellant “tried to disguise his identity” and he “imagined a new identity as to be hidden from the victim”. He acted dishonestly as he “filled and signed a postal delivery note as a non-existing person” and “[b]y that conduct he committed the misdemeanour of using a forged private document”. No loss was caused. The conduct “cannot be linked with fraud, but a use of [a] forged private document”;
iv) In relation to offence 17(b) the Appellant “tried to disguise his...
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