{"id":673421,"date":"2026-04-24T15:55:59","date_gmt":"2026-04-24T13:55:59","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/mate-konczos-v-law-court-in-gyor-hungary\/"},"modified":"2026-04-24T15:55:59","modified_gmt":"2026-04-24T13:55:59","slug":"mate-konczos-v-law-court-in-gyor-hungary","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/mate-konczos-v-law-court-in-gyor-hungary\/","title":{"rendered":"MATE KONCZOS v LAW COURT IN GYOR (HUNGARY)"},"content":{"rendered":"
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THE HON. MR JUSTICE FORDHAM MR JUSTICE FORDHAM: 1. On 3 December 2021 I gave my judgment in this case (\u201cthe Judgment\u201d): [2021] EWHC 3287 (Admin). On 15 December 2021 the Appellant made an application for a certification \u201cthat there is a point of law of general public importance involved in the decision\u201d (s.32(4)(a) of the Extradition Act 2003) and for leave to appeal on the basis that \u201cthe point is one which ought to be considered by the Supreme Court\u201d (s.32(4)(b)). The Respondent responded on 11 January 2022, following which the Appellant\u2019s Counsel emailed the Court asking whether the Court would be assisted by a brief reply. I have reached the view that it is unnecessary to invite a reply or to convene an oral hearing, for the purposes of determining the application. 2. The two points which Mr Grandison invites me to certify, and on which I am further invited to grant leave to appeal, are as follows: (1) For the purposes of section 20 of the 2003 Act and Article 4a of the 2009 Framework Decision, does a hearing constitute the \u201ctrial resulting in the decision\u201d where it involved no assessment of the evidence or merits of the case, solely because the requested person was \u201cdeliberately absent\u201d from that hearing within the meaning of s.20(3)? (2) Is a requested person to be regarded as \u201cdeliberately absent\u201d from their trial\/retrial within the meaning of s.20(3), where they failed to place themselves within the reach of a legal process instituted in another country by not attending their trial\/re-trial, because doing so would have entailed a breach of a fundamental right conferred under the ECHR? Or, must the requested person demonstrate that the putative breach of that fundamental right was \u201coverbearing\u201d so as to negative their free will? As to certification, Mr Grandison\u2019s submission is that the Judgment \u201craises\u201d these two points, which are points of law and of general public importance. He identifies the first point as arising by reference to the Judgment at \u00a719; and the second point as arising by reference to the Judgment at \u00a725. 3. In support of certification, Mr Grandison cites Bicioc v Baia Mare Local Court, Romania [2014] EWHC 628 (Admin) (at \u00a71), as an illustration of a case where the Court said that \u201cdeliberate absence\u201d raised \u201ca vexed question \u2026 to which a clear answer ha[d] not yet been given by our own costs\u201d. 4. In support of his submissions as to leave to appeal (if it arises), Mr Grandison has cited passages from six new authorities, which (with Bicioc) were provided as a bundle of supplementary authorities. None of these sources was cited at the substantive hearing of the appeal before me. None are therefore analysed (or mentioned) in the Judgment. I will list here the six further authorities (and specific content) which have now been cited: (i) Council of Europe Resolution (75) 11 at Rule 5; (ii) Pelladoah v Netherlands App. No. 16737\/90 at \u00a740; (iii) Krombach v France App. No. 29731\/96 at \u00a787; (iv) Sejdovic v Italy App. No. 56581\/00 at \u00a788; (v) Van Geyseghem v Belgium (2001) 32 EHRR 24 at \u00a734; and (vi) Bader v Sweden (2008) 46 EHRR 13 at \u00a747. Also mentioned in Mr Grandison\u2019s submissions is Sanader v Croatia App. No. 66408\/12 at \u00a787. Mr Grandison has not applied to reopen the appeal (Crim PR 50.27). He is right not to have done so: that jurisdiction is not designed to allow a disappointed party to reconsider their arguments and the materials deployed in support, and \u201chave another go\u201d: United States v Bowen [2015] EWHC 1873 (Admin) at \u00a79. 5. In framing section 32(4) (certification), Parliament has made a number of points clear. One is that there must be \u201ca point of law\u201d. A second is that this must be a point of law \u201cinvolved in the decision\u201d. A third is that this point of law, involved in the decision, must be one \u201cof general public importance\u201d. A fourth is that it is for this Court to address whether these characterisations are apt. A fifth is that none of this should be elided with the distinct question of whether the point \u201cis one which ought to be considered by the Supreme Court\u201d. If this Court is satisfied that there is a point of law, involved in the decision, which is of general public importance \u2013 but is not satisfied that it ought to be considered by the Supreme Court \u2013 then the appropriate course would be to certify, but to refuse leave to appeal, leaving to the Supreme Court (if leave to appeal is pursued) the question of whether the case should be entertained by that Court. On the other hand, if this Court is not satisfied that there is a point of law, involved in the decision, which is of general public importance, the appropriate course is to refuse to certify, and the question of leave to appeal does not arise. 6. In her submissions opposing certification (and leave to appeal), Ms Bostock described this case as involving a \u201cvery specific and unusual set of facts\u201d. I agree. The Judgment records at \u00a79 the position that the \u201cfactual context\u201d of the present case, where section 20 fell to be \u201capplied\u201d, involved \u201ca special set of circumstances\u201d (as indeed both Counsel had accepted). In this case the circumstances were that the Appellant faced extradition; that he could have \u201csat tight\u201d and resisted extradition on EAW2, in which case he would have \u201cretained his future entitlement to the twin rights following extradition\u201d, and there could have been \u201cno question of any arrest or detention in Hungary other than following a \u2026 prison assurance\u201d; but that he \u201cchose instead to invoke the right to seek a retrial in Hungary\u201d, making his \u201crequest for the Hungarian custodial sentence, and EAW2, to be suspended pending that retrial\u201d (Judgment \u00a715). It is also a case where it has been found \u2013as a fact \u2013 that his choice not to attend was \u201cfreely made\u201d; a finding of fact which was found to be \u201cunimpeachable\u201d (Judgment \u00a725). It is a case where the requested \u2018suspension\u2019 failed because, under Hungarian law, \u201cthe domestic Hungarian sentence remained extant, unless and until set aside on a successful appeal\u201d (Judgment \u00a75). It is a case where the logic of the Appellant\u2019s own position was that he \u201cwas prepared, voluntarily, to return to Hungary to attempt to clear his name at his retrial, without any prison assurance which would apply if he were convicted at that retrial\u201d (Judgment \u00a725). It was a case in which his retrial would be \u201cterminated\u201d and \u201cextinguished\u201d under section 409(3) of the Hungarian domestic statute\u201d, if the Appellant was treated as having \u201cleft for an unknown place\u201d, as the Hungarian court concluded was the position (Judgment \u00a75). 7. I will start with the substance of Question (2), which involves basic human rights. The formulated question speaks of a situation where \u201cattending\u201d a \u201ctrial\u201d or \u201cretrial\u201d is an act which \u201cwould have entailed a breach of a fundamental right under the ECHR\u201d. But the point is a specific one about extraditability and prison assurances, where the UK court would not order extradition to face incarceration absent a prison assurance (Judgment \u00a73). The Judgment identified (at \u00a711) a \u2018future retrial\u2019 scenario where Article 3 and the absence of an assurance would affect extraditability. The Judgment identified (at \u00a712), a \u2018past trial\/retrial\u2019 scenario where it would not (\u00a712), as was common ground. The issue in the present case concerned the situation where, facing extradition, the Appellant had chosen to invoke the right to a retrial but then not to attend for it (Judgment \u00a725). And it was the Appellant\u2019s own argument which argued that the prison conditions point \u2013 and the absence of the prison assurance \u2013 meant there was an \u201cabsence of free will\u201d which \u201cso affected\u201d the \u201cdecision\u201d so that it was not truly \u201cdeliberate\u201d (Judgment \u00a724). The basic problems were (i) that there was an \u201cimpeachable\u201d finding of fact that the choice was \u201cfreely made\u201d, and (ii) that the Appellant\u2019s own logic is that he \u201cwas prepared, voluntarily, to return to Hungary to attempt to clear his name at his retrial, without any prison assurance which would apply if he were convicted at that retrial\u201d (Judgment \u00a725). 8. The formulation of Question (2) involves a far broader and more general proposition, not determined in the Judgment. The \u201cprison conditions\u201d point which was actually \u201cinvolved in the decision\u201d was a very specific one. It came to this. In a case where Article 3 would prevent extradition being ordered without a prison assurance, which prison assurance has not yet been provided \u2013 but where the requested person while facing extradition (i) chose to initiate the right to a retrial in a requesting state court (ii) \u201cfreely made\u201d a decision not to attend the retrial hearing and (iii) was prepared to attend that retrial if a previous sentence and warrant were discharged (even though he would then, if convicted, face being imprisoned without any prison assurance) \u2013 does the absence of the prison assurance prevent his non-attendance at the retrial hearing from being classed as \u2018deliberate\u2019? This was the \u201cprison conditions\u201d question addressed in the judgment. The Judgment gives the answer \u201cno\u201d to this question. I accept that this question engages a question of law. But I cannot accept that it engages a point of law \u201cof general public importance\u201d for the purposes of section 32(4). 9. Having dealt with the human rights aspect, I turn to the substance of Question (1). The formulated question speaks of whether \u201ca hearing\u201d can constitute the \u201ctrial resulting in the decision\u201d, where there is no EMH (hearing on the evidence and merits: see Judgment \u00a75), \u201csolely because the requested person was \u2018deliberately absent\u2019\u201d. Again, it is important to identify what the judgment decides. This case is about the \u201ccontingent\u201d nature of the twin rights and the role played by deliberate absence \u201cespecially in the context of retrial\u201d (Judgment \u00a719). It is about the requested person\u2019s \u201cown action in default\u201d which means that the retrial right has been \u201crelevantly foregone\u201d (\u00a719). The formulation of Question (1) involves a far broader and more general proposition, not determined in the Judgment. The Judgment makes clear, for example, that the requesting state could not \u201cimpose\u201d the \u201cinvidious\u201d choice of attending a time-limited retrial during the extradition process, where non-attendance extinguishes the retrial right (see \u00a714). The nuance is simply not reflected in the formulation of Question (1). The present case is, again, about making a \u2018freely made\u2019 choice, during the extradition proceedings, and by reason of deliberate absence not taking advantage of the retrial right then duly afforded. 10. The \u201cdeliberate absence\u201d point which was actually \u201cinvolved in the decision\u201d was a very specific one. It came to this. In a case where the requested person had initially been convicted in absence at trial, having not at that stage \u201cdeliberately absented himself\u201d \u2013 but where, while facing extradition, he (i) chose to initiate the right to a retrial in a requesting state court and then (ii) \u201cfreely made\u201d a decision not to attend that retrial hearing (which non-attendance extinguished the right of retrial under the domestic law of the requesting state) \u2013 is he extraditable, compatibly with section 20 of the 2003 Act (read with Article 4a of the Framework Decision), notwithstanding that the retrial hearing involved no hearing on the evidence and merits? This, then, was the \u201cdeliberate absence\u201d point addressed in the Judgment. The Judgment gives the answer \u201cyes\u201d to this question. I accept that this question engages a question of law. But I cannot accept that it engages a point of law \u201cof general public importance\u201d, for the purposes of section 32(4). 11. It is important \u2013 when identifying a putative point of law of general public importance \u2013 to tailor the analysis closely to the specific questions of law which the judgment actually decides. That may be because the identified question was a question of law which was the ultimate question being determined by the Court. Or it may be because the identified question was a question of law constituting an identifiable and necessary step in the Court\u2019s reasoning, by which it arrived at its ultimate decision. A disciplined focus is necessitated by these twin aspects of section 32(4): \u201cgeneral public importance\u201d and \u201cinvolved in the decision\u201d. For certification, the two must overlap. In Fuzesi v National Crime Agency [2018] EWHC 3548 (Admin), for example, a suggested \u2018point of law of general public importance\u2019 was formulated (see \u00a712), but the Divisional Court explained that, as formulated, it did not describe \u201ca point of law which arises on the facts of the present case\u201d (see \u00a713). In Celczynski v Poland [2020] EWHC 3450 (Admin), for example, suggested \u2018points of law of general public importance\u2019 were formulated (see \u00a72), but Dove J explained that they did \u201cnot, in truth, arise in the circumstances of the present case\u201d (see \u00a76). In my judgment, the same problem arises from the suggested \u2018points of law of general public importance\u2019 here. I agree with the submissions of Ms Bostock for the Respondent. The fact-specific nature of the Court\u2019s determination, on the very special facts of the present case, mean that those questions of law which were involved in the decision are not questions of law of general public importance. Conversely, Mr Grandison\u2019s broader questions of \u201cgeneral public importance\u201d were not \u201cinvolved in the decision\u201d, whether as ultimate decisions or as necessary steps. I refuse the application to certify points of law of general public importance. It follows that I also refuse the application for leave to appeal.<\/p>\n<\/div>\n

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Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

THE HON. MR JUSTICE FORDHAM MR JUSTICE FORDHAM: 1. On 3 December 2021 I gave my judgment in this case (\u201cthe Judgment\u201d): [2021] EWHC 3287 (Admin). On 15 December 2021 the Appellant made an application for a certification \u201cthat there is a point of law of general public importance involved in the decision\u201d (s.32(4)(a) of the Extradition Act 2003) and…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[7649],"kji_chamber":[],"kji_year":[32183],"kji_subject":[7650],"kji_keyword":[13918,8358,7617,14944,10977],"kji_language":[7611],"class_list":["post-673421","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-high-court-administrative-court","kji_year-32183","kji_subject-administratif","kji_keyword-general","kji_keyword-judgment","kji_keyword-public","kji_keyword-question","kji_keyword-retrial","kji_language-anglais"],"yoast_head":"\nMATE KONCZOS v LAW COURT IN GYOR (HUNGARY) - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/mate-konczos-v-law-court-in-gyor-hungary\/\" \/>\n<meta property=\"og:locale\" content=\"ru_RU\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"MATE KONCZOS v LAW COURT IN GYOR (HUNGARY)\" \/>\n<meta property=\"og:description\" content=\"THE HON. MR JUSTICE FORDHAM MR JUSTICE FORDHAM: 1. On 3 December 2021 I gave my judgment in this case (\u201cthe Judgment\u201d): [2021] EWHC 3287 (Admin). 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MR JUSTICE FORDHAM MR JUSTICE FORDHAM: 1. On 3 December 2021 I gave my judgment in this case (\u201cthe Judgment\u201d): [2021] EWHC 3287 (Admin). 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