QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OPENSHAW
| BALZAS ASZTASLOS
|- and -
|THE SZEKSZARD CITY COURT, HUNGARY
Miss Gemma Lindfield (instructed by the CPS Extradition Section) for the Respondent
Hearing dates: 28th January 2010
Crown Copyright ©
Lord Justice Aikens :
Issue One: The validity of the EAW - was it issued for the purpose of the appellant being prosecuted?
"(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
202 Receivable documents "
(1) A Part 1 warrant may be received in evidence in proceedings under this Act.
(2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
(3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
(4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies—
(a) it purports to be signed by a judge, magistrate or other judicial authority of the territory;
(b) it purports to be authenticated by the oath or affirmation of a witness.
(5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act.
"The objective set for the [European] Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purpose of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures".
Recital (10) states:
"The mechanism of the European arrest warrant is based on a high level of confidence between member States…"
"1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member states shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union."
"1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;
the nature and legal classification of the offence, particularly in respect of Article 2;
a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person".
"EUROPEAN ARREST WARRANT
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 executing a custodial sentence or detention order"
"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their enquiries." Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning of the Act of 1989. It is however, possible to state in outline the approach to be adopted. The stating point is that the term "accused" … is not a term of art. It is a question of fact in each case whether the person passes the threshold of being an "accused" person. Next there is the reality that one is concerned with the contextual meaning of "accused" in a statute intended to serve the purpose of bringing to justice those accused of serious crimes … it follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure and in particular from the point of view of formal acts of the laying of an information or the preferring of an indictment. Moreover, it is important to note that in England the prosecution may also be commenced if a Custody Officer decides that there is sufficient evidence to charge and arrest a person and then proceeds to charge him: section 37(7) of the Police and Criminal Evidence 1984 … Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an 'accused' person. And that is so even if the police continue to investigate afterwards.
In other words it is necessary for our courts to adopt a cosmopolitan approach to the question of whether as a matter of substance rather than form of requirement of there being an "accused" person is satisfied….
But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question of whether a person is "accused" within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case."
"I wish to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory, if they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it".
"The European arrest warrant procedure is designed to provide a summary and speedy process for securing the extradition of accused and convicted persons between Member States. Where the warrant contains the required information, it is unnecessary and indeed inappropriate to go behind the warrant. The last thing the court wants, save in most exceptional circumstances, is for the proceedings to become bogged down by contested expert evidence. If the warrant provides that the person is required for the purpose of being prosecuted for the offence, or in this case offences, that is sufficient to comply with section 2(3)(b). Whilst I appreciate that warrants are often directed to more than one Member State, and it may not be easy to provide a form of words that meets the requirements of each recipient state's national legislation, it should surely be possible, on receipt of a warrant in the United Kingdom, for it to be carefully checked to ensure that it complies with the requirements of the Extradition Act 2003. Then any defect can be remedied before time is wasted on what are likely to be costly and abortive proceedings."
"This court and, a fortiori, District Judges who have to deal with applications for European arrest warrants on an almost daily basis, must not be put in the position where the court may have to consider detailed evidence about criminal procedures in other European countries for the purpose of the deciding whether or not the statutory requirements in section 2(3)(b) of the Act are fulfilled. If the objectives of speed and simplicity in the procedure of cross-border arrest and surrender within the EU are to be achieved, the solution, in my view, is clear. When a requesting authority issues a European arrest warrant with a request to the United Kingdom, the precise English-language wording in the head of the pro forma warrant annexed to the Framework Decision should be used. Furthermore, care should be taken to ensure that there is nothing in the body of warrant that detracts from that unequivocal statement. The liaison magistrate in the requesting state and the liaison authority in the United Kingdom can ensure that this is done. In that way, the objective of paragraph 5 of the recitals to the Framework Decision and Part 1 of the Act, viz the introduction of a new simplified system of arrest and surrender between judicial authorities, can be fulfilled."
"Where a warrant clearly states that the person is sought for the purpose of being prosecuted, there is no problem. Problems only arise where consideration of the whole warrant leaves it unclear whether the person sought is wanted for the purpose of prosecution or merely questioning".
"Balazs Asztalos in December 2005 with his daughters [A] born on 20 April 2001 and [B] born on 2 June 2003 moved to his mother [whose name and address were then given]. The accused because of his debauchery entrusted systematically the guidance [of] the children to his mother, he did not discharge his obligations arising from the education, care and guidance of the children, neglected them, make them drink alcoholic beverages, physically and sexually assaulted them several times. Prior [to the] summer of 2007, in a date indefinable more punctually, he forced his daughter [B] to fornication [in] such a way that he licked her sexual organ, reached into that, placed his own sex organ into the mouth of the child and ejaculated into it. Her sister [A] was forced to see these acts. Both children witnessed [their] fathers live sexual life with his then existing girlfriend".
Issue Two: Are the offences of "abuse of a minor" extradition offences within section 64 of the Act?
"(2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;
a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;
the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment.
(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied
the conduct occurs in the category 1 territory;
the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;
the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law)."
Conclusion and Disposal