The High Court has refused to surrender Ferenc Horváth to Hungary under a European arrest warrant, ruling that surrender could not proceed without a written undertaking that he would receive a retrial or the opportunity for one. The court ordered that he be discharged from bail.
Mr Justice Edwards delivered the judgment on 5 November 2013. The warrant sought Horváth’s return for a second-instance criminal hearing in Hungary after he had been tried in absentia, convicted and sentenced to three years and six months’ imprisonment in 2008. His court-appointed lawyer appealed without his instructions. Hungarian authorities described the first-instance judgment as non-final and said the appeal would involve a full review of the case. They confirmed that Horváth would not have to begin serving the sentence while the appeal was pending.
The court rejected Horváth’s objections that the proceedings were an abuse of process and that the Hungarian appeal arrangements would deny him a right of appeal. It said the delay in informing Irish authorities of the 2008 trial was regrettable, but found no solid basis to infer bad faith or conclude that the proceedings had oppressed him. It also held that a further review on points of law after the second-instance hearing was sufficient to meet the right to review by a higher tribunal.
The decisive issue was section 45 of the European Arrest Warrant Act 2003. The court held that the section applied even though Hungary sought Horváth for prosecution rather than to enforce the first-instance sentence. It found that he remained a convicted person under Hungarian law despite the pending appeal and the presumption of innocence he would enjoy at the second-instance hearing.
Because Horváth had not been present at the trial and the court found the relevant notification condition satisfied, section 45 required a written undertaking that he would be retried or given the opportunity for a retrial, notified of its time and place, and allowed to attend. Hungary had expressly said it would not give that undertaking. The High Court therefore refused to make a surrender order under section 16(1) and discharged Horváth from bail.