Feledi v Regional Court of Miskolc (Hungary)

In a conviction-based European Arrest Warrant case, dual criminality may be established in two ways. First, the legal elements of the foreign offence may be matched against the corresponding domestic offence. If that is insufficient, the conduct described in the warrant must necessarily or irresistibly imply the matching domestic element. The warrant and the district judge’s decision need not repeat expressly that a person was acquitted of an identified count where the documents make that position clear. A pending challenge to the treatment of evidence concerning breaches of extradition assurances may justify staying a permission application. The court should not impose an artificial distinction between cases in which identical evidence has been served and cases which clearly identify publicly available evidence to be considered in the pending authoritative appeal.

The appellant faced extradition to Hungary under a European Arrest Warrant concerning convictions and a sentence of one year’s custody. The district judge discharged the warrant in relation to two offences by agreement but ordered extradition on the remaining four. Permission to appeal was refused on the papers. The renewed application challenged the warrant’s description of an acquitted offence, dual criminality under section 10 of the Extradition Act 2003, the proportionality assessment under Article 8, and reliance on a Hungarian prison assurance under Article 3. The central issue was whether any ground was reasonably arguable and, for the Article 3 ground, whether the application should await the Supreme Court’s decision in Szalai.

1. Section 2. Permission was refused. The European Arrest Warrant stated prominently that it concerned six offences and expressly recorded the acquittal on the additional indictment count. The district judge’s decision also made the position clear. No further express wording in the order was required.
2. Dual criminality. Permission was refused on the section 10 ground. In a conviction warrant case, the first question is whether the legal constituent elements of the foreign offence correspond to the relevant elements of a domestic offence. If that cannot be established from the legal provisions, the court examines the conduct described in the warrant. That description must necessarily impel the inference that the matching domestic element is present. The warrant here necessarily conveyed knowledge of the relevant leases, liens, ownership and restrictions on disposal. The district judge was entitled to characterise the conduct as dishonest appropriation.
3. The statement that unfair conduct was not a legal element of the Hungarian offences did not establish strict liability or eliminate mens rea. The further information stated that merely refusing to return property or failing to settle had civil-law consequences only. That distinction logically indicated that the relevant offence required a guilty mind.
4. Article 8. Permission was refused. The district judge had taken account of the discharge of two offences and had conducted the requisite proportionality assessment. The reduction from six offences to four did not inevitably reduce the sentence, since that consequence was for the Hungarian authorities to determine.
5. Article 3. The renewed application was stayed pending the Supreme Court’s judgment in Szalai. It would be unjust to distinguish between appellants who had served the same evidence of breaches of assurances and appellants who clearly identified that evidence from its public description and relied on its consequences. The latter could equally be affected by the Supreme Court’s decision. The appellant was not to be extradited while permission on that ground remained under consideration. There was no order as to costs.

• Westminster Magistrates’ Court: extradition was ordered on four offences after two offences were discharged by agreement.
• High Court (Administrative Court): permission to appeal was refused on the papers by William Davis J. On renewal, permission was again refused on the section 2, section 10 and Article 8 grounds. The Article 3 permission application was stayed pending the Supreme Court’s judgment in Szalai.