KALMAN NEMETH v JUDGE OF THE DISTRICT COURT OF BUDAPEST, HUNGARY

The conduct is described as an offence of knifepoint robbery committed on 17 November 2016 at 01.10 hours in Budapest. The RP acted with an accomplice to rob the complainant, Gary Russel Thomson, of cash in the street at night. They asked the complainant for money to pay for [a] bus ticket. The victim took out 1,000 HUF (then equivalent to approximately £2.76) from a money clip. When he tried to put the money clip back into his pocket, the RP pulled out a 7cm long knife and pointed it towards the victim’s abdomen from half a metre away. The RP and his accomplice took a total of 40,000 HUF (then approximately £100). When the victim tried to recover the money, the RP “stabbed towards” the complainant and ran away. The accomplice then punched the complainant in the face causing him to fall over. The monies were not recovered.

At the oral hearing before the Judge the Appellant gave evidence and was cross-examined. He claimed to have come to the UK from Hungary a few days before 17 November 2016, the date of the alleged offence. The Judge rejected that evidence.

A person’s extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if): (a) it appears to the appropriate judge that there are reasonable grounds for believing that: (i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and (ii) the person’s absence from the category 1 territory is not the sole reason for that failure, and (b) those representing the category 1 territory do not prove that: (i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or (ii) in a case where one of those decisions has not been made (or neither of them has been made), the person’s absence from the category 1 territory is the sole reason for that failure.

In this case, Hungary – the requesting state in the extradition proceedings – is the “category 1 territory”. The Judge was “the appropriate judge”.

In essence, the s.12A bar to extradition only operates if (1) there are reasonable grounds for believing that one or more of the required decisions have not been made, and not made for a reason other than the requested person’s absence from the requesting state, and then (2) the requesting judicial authority fails to establish, to the criminal standard of proof, that in fact both required decisions have been made or that the only reason for both of them not having been made is the requested person’s absence from the requesting state.

The “purpose” of s.12A is “to ensure that individuals are tried expeditiously following their surrender” (Puceviciene §4ii); to “ensure”, “before extradition can occur”, “that a case is sufficiently advanced in the issuing state”, meaning there is “a clear intention to bring the person to trial”; so that people “do not spend potentially long periods in pre-trial detention following extradition”, while the issuing state “continues to investigate the case” (§§11-12). The “mischief at which the section is directed is the possibility of a person being surrendered and then languishing in custody while the alleged crime continues to be the subject of lengthy investigation without [a] decision to charge and try having been made” (§73).

The “relevant time”, for examining whether the Relevant Decisions have been made or whether the Permitted Excuse is applicable, is the present: the time of the Judge’s decision or the decision of the High Court on appeal (§65).

A “cosmopolitan interpretation” (§11) and “cosmopolitan approach” (§19) are called for (also §§38, 81): “which accommodates and reflects the criminal procedures of other countries, rather than those in the UK”, to “avoid emplacing significant but unintended barriers to extradition on a speedy basis, while still respecting the purpose of s.12A” (§11). It is necessary to take into account the “diversity of procedures” where “the procedure for bringing alleged criminals to justice varies very considerably between states” (§39), with “substantial differences” (§42). Although “systems for criminal procedure will have usually (i) a stage where investigation is the focus; (ii) a stage where the prosecutor with conduct of the prosecution in court considers whether to bring a charge, whether to proceed to trial and prepares for trial and (iii) a trial stage”, nevertheless “the boundaries between the stages are not necessarily precise and activities generally attributable to one stage can be carried out in the course of another” (§39). Even in England and Wales, for example, “investigation” may often continue after the stage of a decision to charge and to try the defendant (§40i).

A “decision to charge” means deciding to make the criminal allegation. It is “the decision which is made when there is sufficient evidence under the relevant procedural system to make an allegation that the defendant has committed the crime alleged” (§55). It is “the decision to make the allegation that the person has committed a criminal offence” (§56).

A “decision to try” means deciding to go ahead to a criminal trial. It is “where the relevant decision-maker has decided to go ahead with the process of taking to trial the defendant against whom the allegation [is] made” (§56). A “decision to charge” may “also be” a “decision to try” (§56). The relevant decision-maker may be “a police authority, prosecutor or judge” (§56). The “real focus” is “always on whether there has been a decision to try”: if so, a decision to charge will inevitably have been taken earlier or at the same time; if not, whether there has been a decision to charge is irrelevant (§50vi).

There must be a “decision”; not a mere “intention”: “an intention to try is not of itself a decision to try” (§204iii). But neither “decision” requires to have been actioned, effected or implemented. The “decision to charge” may need a future act “proceeding to make the charge” (§55). The decision to try does not mean that any trial proceeding has started. The decision-making prosecutor may be “going to charge and try” the defendant when able to “find” them and “conclude the procedures” (§128iv).

Neither decision need be “formal”; either or both may be “informal”. There is “no reason why any formality is required in relation to the making of a decision” (§§54, 128vii, 204); “a decision is a decision even if informal” (§56).

Either “decision” may be conditional, or subject to review. For example, it may be conditional on hearing what the defendant has to say. So, a decision to charge can be “conditional upon hearing what the defendant has to say”; it may remain “necessary to put the allegation to the defendant and hear what [they have] to say”; and there may need to be an act “confirming the decision and proceeding to make the charge” (§55). Likewise, a decision to try is “none the less a decision to try even if it is conditional or subject to review” (§54); a decision to try may be “taken subject to the completion, after extradition, of formal stages, such as an interview and subject to those stages not causing a reversal of the decision already made even informally, to charge and try” (§54): it may be “a decision that the matter will proceed to trial, subject to hearing what the defendant has to say” or subject to a “subsequent review” (§56); it may be “conditional or contingent upon other matters” (§56).

First, there is the usual “pro forma” (see Puceviciene §4ii) preamble, which states:

Secondly, the text in box (e) “offences” (under the heading “description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person”) includes this:

Thirdly, the text in box (f) (under the heading “other circumstances relevant to the case (optional information)”), includes this:

Where questions are asked of the requesting judicial authority by the CPS (acting in its capacity as a representative of the judicial authority under s.190 of the Act), it is highly desirable that the questions be provided to the court and to the requested person, as well as the answers. The questions, and their precise terms, are often essential to understanding the significance of the answers.

It is clear in our view that when answers to questions are put before the court, the questions and the information supplied to the requesting judicial authority to enable it to understand the questions … must also be put before the court.

Have you made a decision to charge Kalman Nemeth (i.e. a decision that there is sufficient evidence to allege that he has committed the offence in the EAW), even though you may not be able to take the formal procedural steps under Hungarian law? (2) If not, is his absence from Hungary the sole reason that you have not made the decision in question (1)? (3) Have you made a decision to try Kalman Nemeth (i.e. a decision to take him to trial for the offence in the EAW), even though you may not be able to take the formal procedural steps under Hungarian law? (4) If not, is his absence from Hungary the sole reason that you have not made a decision in question (3)?

Based on the viewpoint of the district prosecutor’s office carrying out the supervision of the investigation, there is enough evidence to establish that the criminal offence included in the European arrest warrant had been committed by Kalman Nemeth, with special regard to the available surveillance camera recordings of the commission of the criminal offence and the perpetrators’ escape route as well as the result of the presentation for identification. (2) In the Hungarian law and order, there is no legal institution to deliver a special formal decision on the above fact; therefore, no decisions have been passed in this regard. (3) It has not been moved that Kalman Nemeth, being absent, be declared as the defendant and a court procedure be conducted in his absence. (4) Although the conditions of holding a procedure with absence are met, but the investigating authority wished to provide an opportunity, on the one hand, to file a defence on the merits during a suspect interrogation in case of the defendant being caught within a reasonable period, and on the other hand, to name his accomplice as the criminal offence included in the European arrest warrant was committed by Kalman Nemeth and his accomplice whose identity is still unknown.

Was Kalman NEMETH ever arrested / questioned in respect of these offences? (6) Was Kalman NEMETH made aware of the prosecution? If so, how was Kalman NEMETH made aware? (7) Please account for any delay in the period between the date of the offence and the EAW being issued. (8) What efforts were made to trace Kalman NEMETH between the date of the offence and the EAW being issued? (9) Was there any contact between the authorities and Kalman NEMETH during this period? If so, please give us details of the frequency and nature of the contact. (10) Was Kalman NEMETH permitted to leave the jurisdiction of the requesting Judicial Authority? (11) Was Kalman NEMETH under any obligation to inform the Prosecuting Authorities of his whereabouts? If so, has Kalman NEMETH complied with this requirement? (12) Is there any evidence that Kalman NEMETH has attempted to evade the investigation or prosecution of the offence? If so, how has he attempted to evade investigation and then prosecution?

The measures taken to find suspect Kalman Nemeth were unsuccessful, so the suspect interrogation could not be held. (6) In the scope of the measures taken to find the suspect, the investigating authority visited the defendant’s known residences and contacted his family; therefore, the defendant may have learnt of the criminal procedure pending against him. No summons for the purpose of holding the suspect interrogation have been served on him. (7) The investigating authority suspended the investigation by its decision dated 31 May 2017 with regard to the fact that Kalman Nemeth was residing at an unknown place. However, after that, further measures have been taken to find him. As a result of these measures being unsuccessful, the investigating authority moved the issuance of a European arrest warrant on 16 August 2019, based on which the district prosecutor’s office proposed, out of turn, the issuance of the European arrest warrant on 03 September 2019. Without delay, the European arrest warrant was issued on 24 September 2019. (8) The investigating authority checked Kalman Nemeth’s known places of residence. For the purpose of establishing his place of residence, the investigating authority issued requests to the electronic communications service providers, organisations and social institutions handling the health and personal data, but all of them were unsuccessful. (9) There was no contact between Kalman Nemeth and the authorities after the commission of the criminal offence. (10) Kalman Nemeth has not been restricted in travelling, he may have left the country legally before the issuance of the domestic arrest warrant. (11) In the Hungarian law and order, the obligation to report the change of address shall take place simultaneously with the suspect interrogation, which the investigating authority did not carry out due to the above objective reasons. (12) Finding Kalman Nemeth was unsuccessful even directly after committing the criminal offence, he may have learnt of the initiation of the criminal procedure from his relatives contacted during the search. Considering his arrest abroad, he actually left for abroad at an unknown time. Based on these circumstances, the above-named person rescued himself from the criminal procedure.

On behalf of the JA, Mr Allen … submits that the EAW contains a clear statement: “the initial investigation is still pending, the investigating authority wishes to interview Kalman Nemeth as a suspect; therefore, a domestic arrest warrant was issued against him on 18 November 2016, besides continuing the investigation. It is probable that Kalman Nemeth is currently residing outside Hungary, in the United Kingdom”. Mr Allen conceded Miss Collins’s point that the EAW was issued as part of an investigation. He accepts that paragraphs (3) and (4) of the JA’s Further Information demonstrate that there are “reasonable grounds for believing” that at least one of the relevant decisions (required under the statutory framework) had not been made by the requesting authorities. However, he submitted that that is not the end of the matter, because it is for the RP to show reasonable grounds for believing his absence from the territory of the JA is not the sole reason for that failure … He submitted that it was equally clear that the reason for the lack of such decision-making was because the RP could not be found, albeit there had been searches for him.

The RP’s evidence was that he left Hungary one or two days before the offence date, which I have rejected as inconsistent with an earlier position that he had left exactly 5 days later. He clearly settled in the UK in very close proximity to the time the offence was committed, and he has not returned to Hungary. Mr Allen submitted that, taken in that context, it was clear from the JA’s information that the RP was to be progressed as a defendant. But for his absence, the RP would clearly have been interrogated, and there was no other reason he was not. Mr Allen submitted that the RP’s argument does not pass the first stage …

I accept Mr Allen’s submissions, and I find that the RP has not shown reasonable grounds for believing his absence from the territory of the JA is not the sole reason for that failure. Indeed, I do not consider that any evidence demonstrates that. Instead, I consider that his absence is the sole reason for that failure. It appears to me that the EAW, taken together with the JA’s further information, reflects reasonable grounds for believing that the JA has made a decision to charge and/or to try the RP, although it would have been helpful if the JA’s answers to the CPS IJ unit’s questions had been clearer. Miss Collins accepted in her closing submissions that there appeared to be an informal decision to charge.

I take account of the fact that the EAW commences with a declaration at the top of the first page: “This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution...[or sentence]”. Paragraph (1) of the further information includes: “Based on the viewpoint of the district prosecutor's office carrying out the supervision of the investigation, there is enough evidence to establish that the criminal offence included in the European arrest warrant had been committed by Kalman Nemeth, with special regard to the available surveillance camera recordings of the commission of the criminal offence and the perpetrators’ escape route as well as the result of the presentation for identification. ” If I am wrong in my assessment, the bar fails in any event due to my findings at the start of the preceding paragraph about the RP’s absence. I note the further information includes details about the fact that the RP was absent and about the JA’s repeated efforts to find him during the investigation, including visiting his known residences in Hungary, contacting his family and trawling national databases.

Regarding the Relevant Decisions, I should conclude: (a) that it appears to me that there are reasonable grounds for believing that the competent Hungarian authorities have not made a decision to charge or have not made a decision to try the Appellant; and (b) that the Respondent has not proved to the criminal standard that the authorities have made both Relevant Decisions. The ExAW refers to an ongoing “investigation”: an investigation “to now”; “still pending”; and “continuing”. It records the “investigating authority” as having taken the position that it “wishes” to “interview” the Appellant “as a suspect”. Turning to the Further Information, Questions (1) and (3) were straightforwardly asked. It would be easy to answer them straightforwardly, if the Relevant Decisions had indeed been taken. There is no such straightforward affirmative answer to Question (1) or (3). Moreover, throughout the Further Information there are references to “the investigation” and “the investigating authority” as well as the description of the next stage of a “suspect interrogation” – where the word is “suspect” – which the “investigating” authority “wished” to undertake. Furthermore, the description of an assessment of evidential sufficiency is as a “viewpoint”; but not as a “decision”. There is the reference to “a court procedure”, where the Appellant is “declared as the defendant”, as being a future step not yet taken: this is not “trial in absence”, but describes prior steps.

Regarding the Permitted Excuse, I should conclude: (a) that it appears to me that there are reasonable grounds for believing that there is a failure to take a Relevant Decision to which the Permitted Excuse does not apply; and (b) that the Respondent has not proved to the criminal standard that the Permitted Excuse does apply to any failure. The Respondent in the Further Information at paragraph (4) has acknowledged that “the conditions of holding a procedure with absence are met” but has decided not to proceed in that way, because of the “wish” first to undertake the “suspect interrogation”. The “court procedure” which could be “conducted in his absence” will be the procedure involving the Relevant Decision or Decisions which the authorities have so far “failed” to take. On that basis, there is a straightforward logic, as follows. Once it is acknowledged that the Respondent could – and has chosen not to – proceed “in his absence” (Further Information paragraph (3)) the “conditions” for doing so being met (Further Information paragraph (4)), it must follow that his “absence” cannot be the “sole reason” for not proceeding to make the Relevant Decision or Decisions. Those are available steps, which have not been taken, notwithstanding his absence. There must be something else – some other reason – beyond the fact of his absence, which has contributed to why they have not been taken.

It is perfectly clear that, if we were to conclude that no decision to try had been taken, it could only be because the prosecutor is unable to take it while FS is absent from the Czech Republic, because the prosecutor considers that he needs to be interrogated there…

FS submitted that, because the Czech Republic countenanced trial in absentia, his absence could not be the sole reason why no decision to try had been taken. Thus approached, s.12A would bar the extradition of fugitive and non-fugitive accused alike where the requesting state permitted trial in absentia… It would be an error of some magnitude to construe any part of the Act so that absence from the state seeking extradition, whether as a fugitive or not, barred extradition for trial where the requesting state permitted trials in the absence of the accused.