Gabor Kiss v Hungarian Judicial Authority

On 29 May 2025 the appellant’s extradition to Hungary was ordered by District Judge Clarke sitting at Westminster Magistrates Court pursuant to two arrest warrants. One (relating to five offences of witness intimidation) was issued on 29 July 2024 and certified by the National Crime Agency on 20 November 2024. The other (relating to four offences of theft) was issued on 29 July 2024 and certified by the National Crime Agency on 17 October 2024. The appellant has been given permission to appeal on two grounds:

By the time of the appeal the appellant had served a longer sentence than the 12 months imprisonment imposed upon him for the theft offences. For that reason the respondent concedes that, should ground 1 succeed, it would be either an abuse of process or disproportionate to extradite him for the theft offences. Ground 2 has therefore fallen away.

The appeal concerns the circumstances in which the appellant was convicted of the witness intimidation offences and sentenced to a term of 1 year and 8 months imprisonment. The appellant accepted that he was not present for the trial. He contends that he was unaware of it and had not given a mandate to the lawyer who represented him; the judge was wrong to find otherwise. He relies on fresh evidence in support of that contention. Further, it is submitted, there was no evidence that the appellant was deliberately absent from his trial. There is no right to a retrial and the appellant should therefore be discharged. The respondent submits that the district judge was entitled to find that the appellant instructed a lawyer and that the fresh evidence does not change the position. In any event, the appellant can be said to have deliberately absented himself from the trial.

The theft offences occurred in October 2016. The appellant fully admitted them. He was present at the hearing that resulted in the decision which became final and binding on 9 January 2019. Indeed he was personally present at the hearing on 21 June 2018 when the ruling was issued. He was sentenced to 12 months imprisonment and ruled not eligible for conditional release.

On 26 July 2019 the appellant was instructed to report to Szeged Prison on 4 September 2019 to begin his sentence. He failed to do so resulting in the issuing of an arrest warrant and then in due course the international arrest warrant.

The witness intimidation offences occurred in 2015 and related to five individuals who were to testify against the appellant in a separate fraud trial which took place that year.

In evidence at the court below, the appellant said that he was interviewed about these offences. It was his evidence that he heard nothing further after that until his arrest on the AW in relation to his extradition.

The appellant was convicted of the offences following a trial (at which he was not personally present) in a judgment dated 18 November 2019 which became final and binding on 6 July 2021. He was sentenced to 1 year and 8 months imprisonment.

On 25 August 2021 the appellant was instructed to report to Kiskunhalas National Prison on 19 October 2021. He failed to do so. Consequently the Hungarian Prison Service Headquarters issued a decision on 28 October 2021, ordering the appellant be brought to Szeged Prison by 11 November 2021 for the execution of the prison sentence. The attempt to bring him in was unsuccessful.

At box 2 of paragraph (d) the AW states that the appellant did not appear in person at the trial resulting in the decision.

At box 3.2 the AW underlines the words “being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned, or by the State, to defend him at the trial and was indeed defended by that counsellor at the trial.”

Box 3.4, setting out the right to a retrial, is unticked and remains blank.

Box 4 requires information about how the relevant condition has been met. This records:
“ The convicted individual was summoned by public notice throughout the process in addition to the arrest warrants, and the delivery of the judgment was also carried out in this manner.
The legal representative effectively provided defense (sic) for the concerned person during the trial.”

Insofar as is relevant further information stated that:

The appellant gave evidence at the extradition hearing. In addition to that set out at [7] above, he said that he was in the middle of serving a sentence on the fraud matter when he was taken in custody to the Prosecutor’s Office to be interviewed in relation to the witness intimidation matter. He was denied a solicitor and legal advice. He refused to be interviewed in their absence and was taken back to prison. He assumed that the interview would be rearranged with a solicitor present. He had no idea that he was tried for the offences until he was handed the AW on his arrest in the UK. He had received no summons or notification of any court dates.

Just before his release from prison on the fraud matter the appellant said that he attended court and was sentenced for the shoplifting offences and received I year’s imprisonment. He was then released on the fraud sentence. He knew he had the outstanding theft sentence at the time of release. He received notice of that sentence. He appealed but did not wait in Hungary for the outcome of the appeal, coming instead to the UK in June 2017. He did not inform the authorities.

The appellant said that he consulted a lawyer who said that if he did not want to serve the sentence he should leave the country and in five years the sentence would expire. He agreed that he was aware that by leaving Hungary he would be avoiding the prison sentence.

The appellant denied giving instructions to a lawyer for his trial. He had no idea there was a sentence for the witness intimidation matters and, contrary to the further information, the only sentence he appealed was for the theft offences.

The judgment from the court below records at [29] that the judge asked the appellant who the lawyer was who gave him the advice about leaving the country. She recorded:
“ The RP was keen to point out that this was not appointed lawyer, he was speaking to someone who he was asking for advice. He said that he was having coffee and randomly bumped into a lawyer and asked their advice but he did not appoint this lawyer to act for him. I asked whether it was the same lawyer that he had acting for him at trial in relation to the theft matter and he said that it was not because that was a duty solicitor. The RP said that it was a practising lawyer that he had met on the street. I asked the RP whether he asked that lawyer about the witness intimidation matter and he said that he did not.”

In the course of her judgment the judge confused the references to the two separate warrants. In setting out the evidence she referred to them in the same way as described by the appellant in his proof of evidence. AW1 was thereused to describe the warrant for the witness intimidation offences and AW2 for the warrant concerning the theft offences. Thereafter the judge swapped the numbering, referring in her judgment to AW1 as the theft offences and to AW2 for the witness intimidation. Notwithstanding that error it is clear from the body of the text to which warrant her findings of fact refer.

The judge found that the appellant was a fugitive. He was aware of the proceedings for the theft offences, was in pre-trial detention in 2018, the judgment became final in June 2018 and he was released from custody. Following an appeal the judgment became final in January 2019. Letters were sent by the Judicial Authority to his address requiring him to attend prison in September 2019 but he did not attend. The Judicial Authority confirmed that the appellant was during these proceedings obliged to report any changes of address, notification of address and place of residence. The appellant accepted he did not do so.

In relation to the witness intimidation offences the judge said that the appellant accepted that he was interviewed for them. The Judicial Authority said that during the proceedings the appellant became unreachable, summonses were issued by public notice and his defence attorney was present at the trial. They appealed the sentence. The appellant had the same measures in terms of notification requirements in relation to these offences. The appellant’s evidence about leaving the country to put himself beyond the reach of the jurisdiction made clear that he was a fugitive.

The judge said that she did not find the appellant to be a credible witness. The date he gave for entry to the UK could not be right as he was in pre-trial detention in Hungary in 2018. The judge did not find the appellant’s account that he had left the country following a random meeting with a lawyer he had “bumped into” in a coffee shop credible. The appellant had a lawyer on the theft offences who was appealing on his behalf of whom he could ask advice about his sentence. There was no good reason for the appellant not to have also asked about the witness intimidation offences if he was speaking to a random lawyer about the sentence for the theft offences. The judge said at [34]:
“The RP may have been advised that if he left the country he could avoid serving the sentence. However I do not accept the RP’s account that this was a random lawyer that he happened to speak to in the street. Instead I believe that this is the lawyer that the RP instructed for him in the witness intimidation matter which explains why he was so keen to express to me that it was a random lawyer, not one that he instructed, as it affects his section 20 challenge for AW2. That lawyer he appointed may or may not have been the same lawyer who acted for him in relation to the theft matter.”

Citing paragraphs 33 and 34 from Cretu v Romania [2016] EWHC 353 (Admin) the judge looked first at the AW itself. Box 3.2 in the instant case stated that the appellant was aware of the scheduled trial, had given a mandate to a legal counsellor who was either appointed by the person concerned or by the state to defend him at the trial and was indeed defended by that counsellor at trial. It was therefore clear as per Cretu at paragraph 34(iii) that the appellant was deemed to be present. The further information also made it clear that the appellant had an appointed defence attorney present at the hearing who had also appealed on the appellant’s behalf. The judge found that this accorded with the appellant’s account about having spoken to a lawyer about how to avoid the sentence. She was satisfied that the appellant was being evasive in his answers to her about this because he did not want to accept that he had a lawyer representing him for the witness intimidation matter. Even without that she would have been satisfied to the criminal standard that the appellant was present at his trial.

As the judge was sure that the appellant was present at his trial, she did not go on to consider whether he was voluntarily absent from it.

Leave to call fresh evidence was granted at the permission hearing. The appellant relied on a witness statement by Dr Takacs Gergely Tihamer dated 24.3.26. Dr Tihamer is a criminal lawyer based in Budapest, Hungary. He has not acted at any time for the appellant.

He produces paperwork in relation to “the matter of Gabor Kiss”. This is comprised of a number of documents entitled “Minutes” which relate to hearings on various dates “in the criminal case against” the appellant.

This witness states that the documents show that the lawyer acting for the appellant throughout was appointed by the state. This is a random system where the lawyer is appointed from the next name of a list of lawyers which is in alphabetical order. He says

The witness further states that “appointed” defenders/lawyers in Hungary are state appointed defenders/lawyers; by contrast those who received their mandate from the client are called “mandated defenders/lawyers” In this case the appellant’s lawyer was appointed by the state. He says:

Section 20 of the 2003 Act provides:

“Case where person has been convicted

In Cretu v Romania (supra) at [32] the Divisional Court held that the requesting judicial authority is expected to convey the relevant information in the warrant itself. If the information met the requirements of Article 4a of the 2009 Framework Decision that would provide the evidence upon which the executing judicial authority would act. The Framework Decisions do not contemplate an investigation by the courts of one Member State into the circumstances in which a court of another Member State decided to proceed in the absence of an accused. At [34](iii) the Court said that an accused who has instructed (“mandated”) a lawyer to represent him in the trial is not, for the purposes of section 20, absent from his trial, no matter how he may have become aware of it.

At [35] the Divisional Court said that it would not be appropriate for requesting judicial authorities to be pressed for further information relating to the statements made in the warrant save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process. The issue at the extradition hearing will be whether the warrant contains the necessary statement. The AW system is based on mutual trust and confidence. To explore all the underlying facts would generate extensive satellite litigation and be inconsistent with the scheme of the Framework Decision:

“It does not call for one Member State in any given case to explore the minutiae of what has occurred in the requesting Member State or to receive evidence about whether the statement in the EAW is accurate. That is a process which might well entail a detailed examination of the conduct of the proceedings in that other state with a view to passing judgment on whether the foreign court had abided by its own domestic law, EU law and the ECHR. It might require the court in one state to rule on the meaning of the law in the other state. It would entail an examination of factual matters in this jurisdiction on which the foreign court had already come to conclusions but on partial or different evidence. None of that is compatible with article 4a of the Framework Decision.”

These passages in Cretu were cited with approval by the Supreme Court in Bertino v Italy [2024] UKSC 9 at [44]. The Court said that the facts before it were unusual in that the EAW identified that the appellant was absent from his trial but failed to rely upon any of the criteria which, if established, would nonetheless have required his extradition pursuant to the Amended Framework Decision:
“When the EAW is used properly to convey information which demonstrates that one of the criteria is satisfied that is ordinarily determinative and forecloses an endless factual exploration: Cretu at paras 33 and 35 for the limited circumstances where further enquiry may be appropriate.”

Section 20 of the Act was also the focus of the Supreme Court in Merticariu v Judecatoria Arad, Romania [2024] UKSC 10. The judgment concerned the proper construction of s.20(5) and the right to a retrial. The Court again cited the above paragraphs of Cretu with approval, saying at [24] that the Amended Framework decision does not call for one Member State in any given case to explore the minutiae of what has occurred in the requesting Member State or to receive evidence about whether the statement in the EAW is accurate. The requesting judicial authority is expected to convey the relevant information in the warrant itself, including information relating to absence from trial, which is necessary to determine whether the executing judicial authority has the power to refuse to execute the warrant under article 4a. If the information set out in the warrant meets the requirements of article 4a that will provide the evidence upon which the executing judicial authority will act.

In Merticariu the judicial authority had ticked box 3.2 and stated that “being aware of the scheduled trial, he had instructed a lawyer who was either appointed by the person concerned or ex officio to defend him at the trial and was indeed defended by that lawyer at the trial”. At box 4 the warrant recorded “The defendant…was not present in court during the trial, he was represented at the hearings by public defender appointed by the court.”

It was accepted before the district judge that for the purposes of section 20(1) of the 2003 Act the appellant had not been convicted in his presence. Box 4 was left entirely blank. At [33] the Court described the warrant as “ambiguous as to the context surrounding the appellant’s representation at trial” in that the answers showed that he was represented by a lawyer at his trial but stated that the lawyer could have been appointed by the appellant rather thanhaving been appointed by the court. Furthermore the box at 3.2 stated that irrespective of who had appointed the lawyer, the appellant had instructed him.

Ms Herbert, who appears on behalf of the appellant but who did not represent him at the court below, brings this appeal under section 27(4) of the 2003 Act. She relies on the fresh evidence which was not available at the extradition hearing. This she submits would have resulted in the district judge deciding the question on section 20 of the Act differently and she would have been required to order the appellant’s discharge.

She submits that the fresh evidence now makes it clear that the appellant had a court appointed lawyer at the trial who would have been picked out from a list. The appellant was not present at the trial and could not have given instructions. In support of this submission Ms Herbert took me to the documents entitled “Minutes” produced by Dr Tihamer. These, she submits, show that the court appointed lawyer did not ask a single question of any witness from which it can be inferred that he was without instructions.

Furthermore, it is plain that the appellant could not have given instructions as no one knew where he was. He was unavailable for the entirety of the proceedings. He had entered no plea and there is no evidence that he was charged. The information given is the equivalent of saying in this jurisdiction that a suspect said at the police station that he was not guilty. There is no evidence that the appellant had a lawyer at the investigation stage.

Ms Herbert submits that the warrant itself was similar in every respect to that in Merticariu and can therefore be said to be ambiguous as to the context surrounding the appellant’s representation at trial.

She further submits that the errors made in the judgment as to the numbering of the warrants means that the factual findings made by the judge are unclear.

The district judge did not, in light of her finding that the appellant was deemed to be present at his trial, go on to consider whether he was deliberately absent from it. Ms Herbert submits that there is insufficient evidence to support such a finding. The AW says only that the appellant was notified by “public notice”. There is no evidence of personal service and no detail about any obligation he would have had after interview to notify any change of address. It cannot therefore be said that the appellant knowingly waived his right to attend. The fact that he knowingly failed to attend his sentence for the theft is irrelevant in this regard. It cannot show that the appellant was aware of and deliberately avoided his trial on the witness intimidation matters. There is no conduct on his part to indicate an unequivocal waiver.

The requesting judicial authority have not ticked the box indicating a right of retrial. The appellant should therefore be discharged.

Mr Du Sautoy submits that the AW must be the starting point. Cretu makes clear that in most cases the court should take this as read. It indicates that the appellant was not present at the trial but that he had given a mandate to a lawyer. It is now known that the lawyer was appointed by the state. The question for the court is whether to go behind the AW and, if so, on what basis. Ambiguity could be a reason.

The further information does not assist on the question of whether the appellant had instructed a lawyer, simply giving the same information as the AW. Mr Du Sautoy submits that at this point there was no reason to go behind that which is said on the warrant.

It was for the district judge to determine on the facts whether the appellant gave instructions. Mr Du Sautoy places emphasis on the fact that she saw the appellant give evidence and was well placed to determine his credibility.

The judgment was not contaminated by confusion. It is clear that the judge found that the appellant had been convicted of theft in his presence and had a sentence pending; that he left in order to avoid it and was therefore a fugitive; that before he left he was questioned on the witness intimidation and decided to leave thereafter and that there was evidence that he had been speaking to a lawyer. The judge was entitled to infer that the reason the appellant had lied about meeting a lawyer in a coffee shop was to avoid admitting that he had spoken to a lawyer about the witness intimidation. If it was the lawyer representing him on the theft there would have been no reason to conceal it.

Mr Du Sautoy submits that the fresh evidence takes the matter no further. It was already known that the appellant was absent but represented by a lawyer appointed by the state. Dr Tihamer says no more than that “appointed” lawyers in Hungary are state appointed lawyers paid by the state and that “mandated” lawyers are those who receive their mandate from the client and are paid by him. Box (d) of the AW makes clear that the lawyer was either appointed by the person concerned or by the state and that the person had given a mandate to that lawyer to represent him at trial. It follows that the fact that a lawyer is state appointed does not mean they could not have been given a mandate by the appellant.

It is not for Dr Tihamer to determine whether or not the appellant gave instructions to his counsel. The fact that he was absent from the court phase does not mean that he did not give instructions outside of that phase. The fresh evidence only repeats matters already before the court and does not negate the information in the AW.

Furthermore, Mr Du Sautoy submits that the court should be cautious in allowing in evidence from another jurisdiction, such as the record of interrogation in this case. It is not known whether the fact that the lawyer asked no questions is indicative of a lack of instructions. It is not known whether the lawyer decided to ask no questions and if so why or whether this is the standard approach or convention in Hungary. It is not known whether the court would record everything on what is obviously not a transcript. The court knows that the lawyer appealed the decision. It is not known whether this was with or without instructions. The minutes can carry little weight in those circumstances.

On the question of deliberate absence Mr Du Sautoy submits that it is clear that the appellant had some idea of the proceedings for witness intimidation when he left Hungary. He was leaving to avoid his sentence for the theft. It is open to the court in those circumstances to conclude that he was also leaving Hungary to avoid the witness intimidation case. That would represent an unequivocal waiver of his right to attend his trial.

I accept that the district judge was confused in her labelling of the two separate warrants in this case. I do not accept that this confusion means that her factual findings were unclear. It is clear from the body of the text at all times to which warrant she was referring.

The judge had the considerable advantage of hearing the evidence of the appellant. She was, in my view, entitled to reject the account he gave of meeting a random lawyer in a coffee shop who gave him advice only on the theft matter. She was entitled to conclude both from these lies and the way in which the appellant gave evidence that he was being evasive in his answers because he did not want to accept that he had a lawyer representing him on the witness intimidation matters. I accept the submission made by the respondent that there would have been no reason to lie about the identity of the lawyer had he been the one representing the appellant for the theft. There would have been no reason to do so. The only advantage in the lie was to give the appellant the protection of section 20 of the 2003 Act that he would not otherwise have had.

In any event, the district judge found that even without the lie the AW made it clear that the appellant had instructed a lawyer who represented him at the trial and, applying Cretu, that this was sufficient evidence of that fact. The district judge’s reasoning in this regard cannot properly be criticised. She properly applied section 20 of The Act as interpreted in Cretu and Bertino. Her finding that she was sure that the appellant gave a mandate to his lawyer was open to her on that basis. I do not accept the contention by the appellant that the wording of the AW is ambiguous. It plainly states that he gave a mandate to his lawyer, whether appointed by the state or by him. It is now known that it was a state appointed lawyer. There is no ambiguity in the wording.

The question on this appeal is whether the fresh evidence would have resulted in the district judge deciding the issue under section 20 differently. Applying the criminal standard of proof I am not persuaded that it would for the reasons advanced by the respondent. I agree that the evidence takes the matter no further. Dr Tihamer was not the lawyer who represented the appellant at the trial. Ms Herbert was unable to explain why it was that a statement had been taken from him rather than from the actual lawyer representing the appellant whose identity was known and who would have been able to assist. Dr Tihamr could only say that the lawyer was court appointed and that as the appellant was not present during the proceedings he could not then give instructions. Dr Tihamer could not assist on whether this lawyer had been given instructions outside of that process. The AW said that he had been given instructions. The finding of the district judge that the appellant spoke to a lawyer about the witness intimidation prior to leaving Hungary rather than to some random lawyer in a coffee shop is also of importance in this regard.

I have considered that which is contained in the “Minutes” of the hearings produced by Dr Tihamer but place little weight on them. I agree with the respondent that the court should be cautious before inferring that the conduct of the lawyer at the court in Hungary as recorded in them shows that he was without instructions. The Supreme Court in both Bertino and Merticariu cited with approval the decision in Cretu that the AW should be taken at face value save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process. None of those exceptions apply here. Cretu at [35] states that the Amended Framework Decision does not call for one Member State in any given case to receive evidence about whether the statement in the AW is accurate.

In this case fresh evidence has been received but a detailed examination of and reliance on the “Minutes” let alone drawing inferences from a failure by the lawyer to ask questions would in my judgment be doing that which Cretu considered inappropriate. A detailed examination of the conduct of the proceedings in Hungary with a view to determining whether the AW is accurate is in my view inconsistent with article 4a of the Framework Decision. The AW system is based on mutual trust and confidence.

In my judgment the district judge’s conclusions that the appellant had given a mandate to a legal counsellor, was indeed defended by that counsellor at trial and that section 20 of the 2003 Act was therefore satisfied were properly open to her on the evidence. The fresh evidence is not such that it would have resulted in her deciding that question differently. It follows that there is no need to consider whether the appellant was deliberately absent from the trial and I do not propose to assess the submissions on that question in any detail. I do consider however that the submissions of the respondent have force in this regard. The district judge found that the appellant had spoken with a lawyer about the witness intimidation matters. He left the jurisdiction after that conversation and was rightly found by the district judge to be a fugitive. It could properly be said that in those circumstances the appellant must have known that he could be convicted and sentenced in his absence and had put himself beyond the jurisdiction of the prosecuting and judicial authorities in a knowing and intelligent way.

For these reasons this appeal is dismissed.