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

For the purposes of Extradition Act 2003, s.12A, a decision to charge or try need not be formal, documented or already implemented. It may be conditional or subject to review. The court must assess the requesting state’s criminal procedure in a cosmopolitan way, accommodating procedural differences between states.

Where the requesting authorities have decided to proceed to trial in the accused’s presence, their inability to progress the case because the accused is absent may constitute the sole reason for any failure to make a required decision. The s.12A bar does not apply where the requesting state proves beyond reasonable doubt that both required decisions have been made, or that absence is the sole reason for any remaining failure.

The appellant challenged an order for his extradition to Hungary to face prosecution for an alleged knifepoint robbery. The District Judge rejected the appellant’s evidence that he had left Hungary before the alleged offence and ordered extradition.

The appeal concerned the s.12A absence-of-prosecution-decision bar. The appellant argued that the Hungarian authorities had not decided to charge or try him and that his absence was not the sole reason for that failure. The issue was whether, on an assessment of the documentary evidence afresh, the statutory bar applied.

1. Appeal dismissed. The court independently evaluated the documentary evidence and applied s.12A afresh.
2. The two required decisions are a decision to charge and a decision to try. A decision need not be formal, expressly recorded, actioned or implemented. It may be conditional or subject to review. The real focus is ordinarily whether there has been a decision to try.
3. The Hungarian materials showed an investigation supervised by the district prosecutor’s office, an assessment that there was sufficient evidence to establish the appellant’s commission of the offence, and that all conditions for a procedure in his absence were met. The intended interrogation was to allow the appellant to put forward a defence and identify an accomplice, not to gather evidence necessary before deciding whether to prosecute.
4. The evidence therefore established beyond reasonable doubt that both decisions had been made. Alternatively, if a decision remained outstanding, the appellant’s absence was the sole reason for the failure. The authorities’ legitimate preference for a trial in the appellant’s presence did not prevent reliance on the permitted excuse.
5. The court adopted the cosmopolitan approach required by Puceviciene v Lithuania, recognising that criminal-procedure stages differ between states. The statutory purpose of preventing surrender followed by prolonged investigation was consistent with the result.

The s.12A arguments failed and the District Judge’s decision was upheld.

• High Court (Administrative Court): The appeal against the District Judge’s extradition order was dismissed. The court evaluated the s.12A issue afresh and held that the bar did not apply.
• District Judge Rimmer: On 15 April 2021, ordered the appellant’s extradition to Hungary.