AC-2024-LON-002386 - [2025] EWHC 2999 (Admin)

Section 12A of the Act provides:

“(1)

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.”

The Respondent accepted that the first limb of the section 12A test, that a decision to charge or try the Appellant had not been made, was satisfied. The FI of 14 August 2024 confirmed this, explaining that the reason was “the fact that the proceedings cannot be conducted in absentia”.

The Appellant submitted that, despite the statement in the FI, the Respondent must have known that a procedural route allowing them to charge the Appellant in his absence in the circumstances of this case would become applicable (and was, it is said, in fact available as of May 2024). As a consequence, it was argued that the Judge erred in finding that the Respondent could meet the second stage of the test, where the Respondent must prove, to the criminal standard, that absence was the sole reason. The argument relies in part on the interpretation of Hungarian procedure, specifically the “special procedure” outlined in Dr Filo’s report, which the Appellant submits was accepted by the Respondent (as the FI stated they had “no observations to make” regarding the report and Dr Filo was not required to attend for cross examination).

Dr Filo’s report at paragraph 3.2 states:

“The CCP regulates in absentia proceedings as a special procedure that may be used if its preconditions are met. The general rule is that proceedings should be conducted in the presence of the charged person where he can exercise his rights personally. However, the unavailability of ‘the person who may be considered to be under a well-substantiated suspicion’ or the charged person may not be a bar to carrying out the proceedings (special procedure).

According to the CCP in absentia proceedings may be carried out when a) the ‘person who may be considered to be under a well-substantiated suspicion’ or the charged person escaped, went into hiding or it may be presumed on a solid basis to have made himself unavailable during the criminal procedure in order to avoid it any other way; b) the measures taken to find the charged person did not produce a result within a reasonable time c) it is justified by the weight of the offence or the requirements of evaluating the case.

[...]

If the suspect is abroad at a known place, the CCP established further special conditions of conducting the proceedings in his absence. It is possible to conduct in absentia proceedings when an EAW had been issued and the extradition did not take place within 12 months from the capture of the suspect, or the extradition was denied, or postponed extradition of the suspect was ordered. In even these situations the conditions that carrying out in absentia proceedings should be justified by the weight of the offence or by the requirements of evaluating the case, and the presence and participation in the proceedings of the suspect cannot be ensured by requesting international criminal judicial assistance or using means of telecommunication.”

In considering this evidence the Judge reached the following conclusions in her judgment:

“30.

The contents of Dr Filo’s report have not been challenged by the JA. At paragraph 3.2 of the report, Dr Filo stated that the general rule was for proceedings to be conducted in the presence of the charged person. I acknowledge there may be provision in Hungary for the JA to proceed in absence by adopting the special procedure described by Dr Filo at paragraph 3.2. Alternatively, Dr Filo explained in the circumstance where AW2 had been executed, if the RP was not surrendered within 12 months, the JA could proceed in absence. The RP was arrested on AW2 in May 2023, and the FI was provided in August 2023. At that date, 12 months since the execution of AW2 had not passed so clearly the JA could not adopt the procedure explained by Dr Filo of proceeding in absence.

31.

The special procedure set out by Dr Filo had three requirements, a well-substantiated suspicion of the RP who had made himself unavailable, a requirement that the measures taken to the find the RP did not produce a result within a reasonable time and that the action was justified by the weight of the offence. AW2 was issued in February 2023 and executed in May 2023, in my view, it cannot be said that the measures taken by the JA to find the RP did not produce a result in a reasonable timeframe – they clearly did as the RP was located and arrested within months. It appeared to me that the JA would be unable to use the special procedure described by Dr Filo for this reason.

32.

Despite the contents of Dr Filo’s report, for the reasons explained above, I find the challenge to extradition pursuant to s12A of the Act was not successful in respect of AW2. I am satisfied to the criminal standard that at the time of issuing AW2, the decision to try or charge the RP had not been made, for the sole reason that the RP was not present in Hungary.”

In Dr Filo’s addendum report he give his opinion that the Judge has misunderstood his evidence:

“It is my expert opinion that the District Judge’s conclusion regarding the inapplicability of the in absentia (CCP) procedure was based on a misunderstanding of the timing requirements under Hungarian law. The provision of FI in August 2023 is not legally relevant to the calculation of the 12-month threshold. Consequently, the conclusion that the JA “could not adopt the procedure explained by Dr Filo” is not supported by Hungarian procedural law as described in my report.

It is worth emphasizing that under Hungarian procedural law the 12-month period triggering the possibility of proceeding in absentia starts from the date of the European Arrest Warrant’s issuance or the suspect’s apprehension. The provision of Further Information in August 2023 is procedural and does not affect this timeframe. The misinterpretation by the District Judge risks undermining the principle of timely and fair proceedings, potentially prejudicing the rights of the Requested Person. Given the over 16-month lapse since the EAW was issued, the procedural conditions for in absentia proceedings have clearly been met, in accordance with Hungarian law and consistent with EU legal frameworks governing extradition and criminal justice cooperation.”

In support of her submissions on this point Ms Grudzinska pointed out that the alleged offence took place in 2019, and a domestic warrant had been issued in May 2021. Thus, some years had passed, with no result within a reasonable time and the Appellant had not been found to be a fugitive in relation to AW2. However, the focus for present purposes is on absence and the Appellant was found by the Judge to be a fugitive, and so absent from the Hungarian jurisdiction, in respect of AW1. In addition, the material provisions set out by Dr Filo related to the passage of time after a European Arrest Warrant had been issued. The Judge was correct therefore to concentrate on the issue of the warrant as the earliest relevant date; indeed, that accorded with the evidence of Dr Filo.

As to this, the Appellant contended that the Judge was wrong to take into account at all the date the FI was provided (August 2023). The correct approach, according to Dr Filo, is that the 12-month period must be assessed from the EAW’s issue, in February 2023, to the decision to extradite in July 2024. Approached in this way more than 16 months had elapsed which it was argued “squarely triggers the relevant provision in Hungarian law that allows the issuing JA to proceed in absentia”. Since the Respondent should be taken to have been aware that the special procedure would become applicable before July 2024, enabling the Appellant to be charged in his absence, the Appellant submitted that on his uncontradicted evidence he had established reasonable grounds for believing his absence from Hungary was not the reason for the failure to charge him and that the Respondent could not prove, to the criminal standard, that his absence was the sole reason.

Ms Brieskova, on behalf of the Respondent, submitted that the FI contained a clear statement indicating that a decision to charge or try had not been made because the Appellant was absent from Hungary and that in the face of a such a statement, either in the warrant or in the FI, the Court should not look at additional material (such as expert reports). In any event the expert evidence provided by the Appellant confirmed that the general rule is that proceedings should be conducted in the presence of the requested person. There was no doubt, as the Judge found, that at the time AW2 was issued in February 2023, the Respondent could not proceed in his absence and nothing to suggest that any other factor was relevant. Although extradition had not been ordered within 12 months of the issue of the warrant, or indeed the Appellant’s arrest in May 2023, that was the result of delay in the proceedings, essentially at the request of the Appellant.