készíti: Gellért Ádám
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“The only necessary for "evil" to triumph is for a few good men to do nothing”

2009. október 11., vasárnap

Zentai Károly kiadható Magyarországnak

Az ausztrál szövetségi bíróság (Federal Court of Australia) október 8-ai jogerős döntése értelmében, az egy rendbeli háborús bűncselekménnyel gyanúsított Zentai Károly kiadható Magyarországnak. A Pocakos News blogon részletesen lehet olvasni az ügy hátteréről.

Érdekes fejlemény: a Zentait képviselő ügyvéd szerint Magyarországon nem is folyik büntetőeljárás Zentai ellen:

“Mr Zentai’s lawyers today argued that the nominated offence of a war crime was not an offence in Hungary in 1944, and they questioned whether it could qualify as an extraditionary offence. They later told the bench that Hungary wanted Mr Zentai for an interrogation and not for trial, adding he could still be interrogated in Australia.A letter from the Leader of the Military Panel in Hungary, Dr Bela Varga, confirmed “there is no criminal proceeding at present” against Mr Zentai, and said he was only wanted for questioning “in the interest of the investigation”.”

A döntés lényegi megállapításai a következők:

12. The appellant argues that by reason of the terms of Art 2, para 5(a) of the Treaty, the war crime alleged against him is not an ‘extraditable offence’ as described in the Treaty. The appellant says that the warrant issued by the Republic of Hungary against him alleges he committed a war crime in Budapest on 8 November 1944. The warrant relies on the war crime, as defined, having been made an offence by legislation of the Republic of Hungary enacted in 1945 which applies retrospectively in the Republic of Hungary to include 8 November 1944. The appellant contends that the offence alleged against him by the Republic of Hungary in the warrant was not an offence in the Requesting State ‘at the time of the acts or omissions constituting the offence’ as required by Art 2, para 5(a) of the Treaty, notwithstanding that the law of the Republic of Hungary gives the war crime offence retrospective effect in the Republic of Hungary.

13. In conducting the review under s 21 of the Act, the primary judge held, on the authority of the decision of the High Court of Australia in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (Kainhofer), that it was not a function of the s 19 magistrate, or the Court on review, to determine by reference to the Treaty whether the appellant was an ‘extraditable person’ or had committed an ‘extradition offence’ for the purposes of the Act.

14. The sole issue for determination in this appeal is whether the s 19 magistrate, in conducting the hearing under s 19 of the Act to determine the appellant's eligibility for surrender, and in turn the primary judge in conducting the review under s 21, was required, as put by counsel for the appellant in their written submissions to this Court on appeal, “to refrain from determining whether the war crime was an extradition offence, by reason of the Minister for Justice issuing a notice under s 16 of the Act specifying the appellant as an ‘extraditable person’”.

39. The appellant's key submission is that s 19(1) and s 19(2) of the Act cannot sensibly operate without the requesting State nominating an ‘extradition offence’ that relevantly has legal effect according to the Act. The hearing magistrate must therefore ascertain that such an offence exists. That is a jurisdictional pre condition separate from, and in addition to, the other stipulated matters the s 19 magistrate is required to determine, and is modified in this case by Art 2, para 5(a) of the Treaty. By force of those provisions a person cannot be eligible for surrender in relation to an offence that did not exist at the time the relevant conduct is alleged to have occurred.

40. The appellant contends therefore that the issue before the s 19 magistrate is not simply whether the facts alleged in the supporting documents were adequately described or were such as to satisfy the minimum requirements of the foreign offence. Rather, the issue properly for determination extends to whether there was a relevant foreign extradition offence in the first place. The existence of that jurisdictional pre condition is not a matter falling outside the ambit of those sections; rather, it is intrinsic to s 19.

76. We accept that the answer sought by the appellant to the substantive question concerning Art 2, para 5(a) of the Treaty is demonstrably an important one. We appreciate that, while in theory it may be possible for a person in the position of the appellant to make representations on such a question before a s 12 magistrate when an application for a provisional arrest warrant is considered, or with the Attorney General before a notice is issued under s 16 of the Act, it will not always be the case that such questions are fully considered at that stage. We recognise, however, that it is open to a person in the position of the appellant to seek judicial review, at least of the decision of the Attorney General to issue a notice under s 16, before a determination is made by a s 19 magistrate. We also consider that it may well be the case that, following a declaration under s 19(9), the question can again be raised before the Attorney General before he or she makes a surrender decision under s 22 of the Act. Any decision of the Attorney General under s 22 would also, on the face of it, be amenable to judicial review in the manner described above.

77. It might be said, as was observed by Toohey J in Kainhofer at 541 and repeated by the Full Federal Court in Papazoglou at 140 – 141, that the system established by the Act represents a substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion. Nevertheless, the reviewable exercise by the Attorney General of the power under s 22 of the Act to consider whether, in the final analysis, a person should be surrendered to another country, plainly is of critical importance to the rights or interests of a person affected by an extradition proceeding.

78. None of that means, however, that the primary judge made any appellable error in determining that it was no part of the function of the second respondent in conducting the hearing under s 19 of the Act, and no part of the function of the primary judge in conducting a review of that decision under s 21, to determine whether the war crime alleged against the appellant was an extradition offence or whether the appellant was an extraditable person for the purposes of the Act. Accordingly, the appeal should be dismissed.

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