The Supreme Court has dismissed the Minister for Justice and Equality’s appeal against a High Court order refusing to surrender Ferenc Horvath to Hungary. The Court affirmed that, under the version of section 45 of the European Arrest Warrant Act 2003 applied by the High Court, surrender required a written undertaking that he would receive a retrial or the opportunity for one.
The warrant sought Mr Horvath for a second-instance prosecution, not to serve a sentence. The judgment says he had been tried and sentenced in his absence in Hungary, without actual notice of the first-instance trial. A lawyer who had not been appointed by him appealed. Hungarian authorities described him as a defendant who was presumed innocent, and said the first-instance decision was not final or executable. They also stated that they would not provide the undertaking required under the pre-2012 law.
The High Court refused surrender in November 2013. On appeal, the Minister argued, among other things, that section 45 should be read in light of the European Arrest Warrant Framework Decision, which addresses absentia decisions in the context of executing a sentence or detention order. The Supreme Court agreed with the High Court that the earlier Irish provision was clear and contained no such limitation. It found an evidential and legal basis for requiring an undertaking even though the warrant sought Mr Horvath for prosecution at a second-instance hearing.
The Minister also sought to rely on the 2012 amendment to section 45. The Supreme Court declined to consider that argument because it had not been argued or determined in the High Court, was outside the certified appeal question and was not included in the stated grounds of appeal. The Court expressly made no decision on whether the pre-2012 or amended provision ultimately applied to the case.
The Court dismissed the appeal and said the case was not suitable to remit to the High Court. It did not consider Mr Horvath’s cross-appeal, which raised rights under the European Convention on Human Rights and section 37 of the 2003 Act, because the outcome of the Minister’s appeal made that unnecessary. The ruling upheld the refusal of surrender; it did not decide the cross-appeal or resolve which version of section 45 applied.