FIRST SECTION

DECISION

Application no . 61946/12 Bence ZOLTAI against Hungary and Ireland

The European Court of Human Rights (First Section), sitting on 29 September 2015 as a Chamber composed of:

Elisabeth Steiner, President, András Sajó, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Julia Laffranque, Paulo Pinto de Albuquerque, Síofra O ’ Leary, judges, and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 17 September 2012,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Bence Zoltai, is a Hungarian national, who was born in 1965 and lives in Leányfalu, Hungary. He was represented before the Court by Mr I. Tóth, a lawyer practising in Budapest.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant is the father of two children who were aged five and two when they were struck and killed by a car as they waited near a bus stop on the afternoon of 9 April 2000 in the town of Leánfalyu, Hungary. The driver of the car was an Irish national, T., who at that time was working and resident in Hungary. The court that later tried T. found that, for unknown reasons, he had steered suddenly to the right. This movement, combined with a speed estimated at 70-80 k.p.h., caused the car to mount the footpath where it collided with the children.

4. T. and the other occupants of the vehicle remained at the scene until the police arrived. It was arranged that they should attend a police station the following day to give statements about the incident. This they did, with the assistance of an interpreter. T. stated that he had moved the vehicle to the right-hand lane so as to avoid a car that had just entered the road ahead of him from a side-road. He then sought to straighten the car, but both brakes and steering were unresponsive. It was this mechanical malfunction that caused the fatal crash. This explanation was not taken into account by the trial court, which ruled the applicant ’ s statement inadmissible on the grounds that the interpreter used was the daughter of the lawyer engaged to defend T.

5. That same day, 10 April 2000, T. was required to surrender his passport to the police. On 28 August 2000, he requested the return of the passport so that he could make a visit to Ireland the following month for family reasons. This request was granted, and T. travelled to Ireland for about three weeks, returning to Hungary on 9 October 2000. At the end of the following month the applicant ’ s employment contract in Hungary came to an end and he decided to return to Ireland with his family.

6. In accordance with Hungarian law, he deposited the sum of 500,000 HUF as bail and appointed a lawyer to represent him in the forthcoming criminal proceedings, which would take place in his absence. It was T. ’ s understanding at that point that the statements made by himself and the other persons in the car would be used at the trial.

7. T. was furnished with the indictment on 7 June 2001. The trial was originally scheduled for 19 June 2001, but was postponed to 7 May 2002. On that date, he was convicted under Section 187 of the Hungarian Criminal Code of negligent driving causing death. He was sentenced to a term of imprisonment of three years, fined and banned from driving. T. lodged an appeal. In a judgment of 8 November 2002, the conviction was upheld, but sentence was varied in that T. would be permitted to apply for early release after eighteen months of imprisonment.

8. While there was an extradition agreement between Ireland and Hungary at that time, it appears that T. could not have been extradited owing to a lack of reciprocity, Hungary not accepting to extradite its own nationals to other jurisdictions. No extradition request was made in relation to T. Following Hungary ’ s acces sion to the European Union on 1 May 2004, both States were bound by the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States ( OJ L 190 of 18 July 2002, p. 1).

9. An arrest warrant for T. was received by the Irish authorities on 16 June 2005. Some further clarifications were sought and obtained over the subsequent months, following which the High Court endorsed the warrant on 20 December 2005. T. was arrested on 12 January 2006 and brought before the High Court, which ordered his release on bail until the hearing, which took place on 19 and 20 December of that year.

10. T. challenged his surrender to the Hungarian authorities on a series of grounds. The first ground relied on was lack of jurisdiction, T. arguing that his situation did not come within the relevant provision of domestic law, namely Section 10 of the European Arrest Warrant Act 2003. The High Court agreed. The judge considered that it could not be said that T. had “fled” Hungary, as stipulated in Section 10(d) of the 2003 Act. On the contrary, it was clear that T. ’ s departure from the country before his trial had been in accordance with domestic legal procedure. He refused to give a broader meaning to the statutory language, observing that “ it is not for this Court to make good that lacuna by some activist and imaginative interpretation of the common word "fled". It is for the legislature to again revisit the manner in which it has chosen to express its intention.”

11. The court rejected all other grounds relied on by T., and directed his release.

12. The State appealed against this decision. The appeal was rejected by the Supreme Court on 3 July 2007 (reasons given on 25 February 2008). That court concurred with the High Court on the meaning to be given to the word “fled”. As was clear from the documents received from the Hungarian authorities, T. ’ s departure from that country had been with the full authority and approval of the prosecutor and the court. He had not fled and so there was no basis in Irish law to surrender him.

13. In 2010 Section 10 of the 2003 Act was amended so as to remove the reference to a person having “fled” the requesting State. The revised provision entered into force on 29 August of that year. The Hungarian authorities issued a new warrant for T. ’ s arrest on 17 September 2010, which was endorsed for ex ecution by the High Court on 14 October 2010. T. was arrested on 10 November 2010 and remanded on bail pending determination of the request for his surrender. His challenge to the surrender was rejected by the High Court on 11 February 2011. In particular, that court rejected the argument that the renewed request for surrender was an abuse of process. By order of 10 March 2011, the High Court certified that its decision to surrender the appellant involved a number of points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. That court gave its ruling on the case on 19 June 2012. By that date, T. had been in custody for over seven months, having been advised that in the event of an unsuccessful appeal he could be given credit in Hungary for time served in Ireland.

14. All five judges of the Supreme Court delivered judgments. Three of them (Hardiman, Fennelly and O ’ Donnell JJ) allowed the appeal, setting aside the High Court order surrendering the applicant to the Hungarian authorities.

15. Hardiman J gave three grounds for this decision. He found that the warrant was insufficiently clear as regards the exact sentence given to T., contrary to Section 11(1)(f)(iii) of the 2003 Act. He further considered that under the Interpretation Act 2005, T. should benefit from the presumption that the amendment of the 2003 Act did not disturb his right, derived from the earlier proceedings, not to be surrendered. Third, he considered that the second attempt to surrender T., twelve years after the accident, was an abuse of process; it would be unjust to deliver T. to the Hungarian authorities in such circumstances.

16. Fennelly J confined his judgment to the sole ground of abuse of process, in light of the special and unique circumstances of the case.

17. O ’ Donnell J allowed the appeal on the sole ground that in the previous set of proceedings T. had acquired the right not to be surrendered to Hungary, and that the amending legislation did not disclose any legislative intention to strip him of it. He did not accept that there had been any abuse of process.

18. Denham CJ and Murray J considered that the appeal should be rejected.

19. Denham CJ did not find any abuse of process in the case, observing that in extradition cases, a second warrant was not an unusual occurrence and was not per se invalid. The legislature had been entitled to amend the law so as to bring it into conformity with EU law. Likewise, the Hungarian authorities had been entitled to make a new request concerning T., which the Irish authorities were required to proceed with. There had been no bad faith on the part of any party or institution. There were no other factors, individual or cumulative, indicating that an abuse of process had occurred. She rejected all other grounds of appeal advanced on behalf of T.

20. Murray J considered that since the legislature ’ s purpose in amending the 2003 Act had been to ensure that the Framework Decision was fully and correctly applied in domestic law, it should not be presumed that it had intended to allow an exception for any person, such as T. He further considered that the court was bound as a matter of EU law to give a conforming interpretation to the amended legislation, namely that it applied to all lawful applications for surrender made for the purpose of the Framework Decision.

21. According to the applicant, T. indicated in March 2013 that he would be willing to travel to Hungary to commence his sentence, on condition that he be swiftly returned to Ireland to serve out the remainder of his term of imprisonment there. Having consulted with the applicant, the Hungarian Minister of Justice agreed to this. While there was some subsequent delay, T. eventually arrived in Hungary on 13 January 2014 and was detained in prison. Three days later he returned to Ireland where he was placed in prison to serve the remainder of the sentence imposed by the Hungarian court.

B. Relevant domestic and international law

22. At the time of the first set of proceedings b efore the Irish courts, Section 10 of the European Arrest Warrant Act, 2003, provided as relevant:

“10.—Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—

...

(d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she—

(i) commenced serving that sentence, or

(ii) completed serving that sentence,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.”

23. The provision was amended by the Criminal Justice (Miscellaneous Provisions) Act, 2009, so as to read:

“Where a judicial authority in an issuing state issues a European arrest warrant in respect of a person—

...

(d) on whom a sentence of imprisonment or detention has been imposed in that state in respect of an offence to which the European Arrest warrant relates,

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.”

Section 37 of the 2003 Act provides as relevant:

“37. — (1) A person shall not be surrendered under this Act if—

( a ) his or her surrender would be incompatible with the State ’ s

obligations under—

(i) the Convention, or

(ii) the Protocols to the Convention,

( b ) his or her surrender would constitute a contravention of any

provision of the Constitution ... ”

24. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States provides as relevant:

“(8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.

(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. ...

This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.

...

Article 1

Definition of the European arrest warrant and obligation to execute it

1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”

...

Article 14

Hearing of the requested person

Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State.

Article 15

Surrender decision

1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

...

Article 17

Time limits and procedures for the decision to execute the European arrest warrant

...

6. Reasons must be given for any refusal to execute a European arrest warrant.

...

Article 26

Deduction of the period of detention served in the executing Member State

1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.

... ”

COMPLAINTS

25. The applicant initially complained under Article 8 that his family life had been destroyed by the death of his two children. Under Article 6 he complained that the Irish courts had not permitted him to participate in the proceedings related to T. ’ s surrender. He complained under Article 13 that there was no remedy available to him regarding the above complaints. Referring to Article 1 of the Convention, he complained that the blocking of T. ’ s surrender effectively conferred impunity on him. In subsequent correspondence with the Court, the applicant also relied on Article 2, arguing that the facts of the case disclosed inadequate protection of the right to life.

THE LAW

26. The Court, being master of the characterisation to be given in law to the facts of case, considers that this application relates essentially to Article 2 of the Convention in its procedural dimension, and it will examine the case on this basis. Article 2 provides, as relevant:

“1. Everyone ’ s right to life shall be protected by law....”

A. General principles

27. The Court reiterates that the first sentence of Article 2 of the Convention requires the States, in particular, to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in context of any activity, whether public or not, in which the right to life may be at stake (see, amongst many other authorities, Zubkova v. Ukraine , no. 36660/08, § 35, 17 Octo ber 2013). In case of a life ‑ threatening injury or death, the above obligation calls for an effective independent judicial system to ensure enforcement of the aforementioned legislative framework by providing appropriate redress (see, for example, Anna Todorova v. Bulgaria , no. 23302/03, § 72, 24 May 2011). This obligation also applies in the context of designing a framework for protection of life from road traffic accidents (see, for example, Al Fayed v. France (dec.), no. 38501/02, §§ 73-78, 27 September 2007; Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007; Railean v. Moldova , no. 23401/04, § 30, 5 January 2010). An effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law (see Cioban v. Romania (dec.), no. 18295/08, § 25, 11 March 2014) but if the infringement of the right to life is not intentional, Article 2 does not necessarily require such remedies; the State may meet its obligation by affording victims a civil ‑ law remedy, either alone or in conjunction with a criminal ‑ law one, enabling any responsibility of the individuals concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see Anna Todorova , cited above, § 73).

28. In principle, States should have the discretion to decide how a system for the implementation of a regulatory framework protecting the right to life must be designed and implemented. What is important, however, is that whatever form the investigation takes, the available legal remedies, taken together, must amount to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress. Any deficiency in the investigation, undermining its ability to establish the cause of the death or those responsible for it, may lead to the finding that the Convention requirements have not been met (see Antonov v. Ukraine , no. 28096/04, § 46, 3 November 2011).

29. A requirement of promptness and reasonable expedition is implicit in this context. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Šilih , cited above, § 195). Thus, in a number of cases before the Court concerning the implementation of a domestic regulatory framework for the protection of life from road traffic accidents, the finding of a violation was largely based on the existence of unreasonable delays and a lack of diligence on the part of the authorities in conducting the proceedings, regardless of their final outcome (see Anna Todorova , cited above, § 76; Antonov , cited above, §§ 50-52; Igor Shevchenko v. Ukraine , no. 22737/04, §§ 57-62, 12 January 2012; Sergiyenko v. Ukraine , no. 47690/07, §§ 51-53, 19 April 2012; Prynda v. Ukraine , no. 10904/05, § 56, 31 July 2012; and Zubkova , cited above, §§ 41-42).

B. The applicant ’ s complaint in respect of Hungary

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. The applicant ’ s complaint in respect of Ireland

33. The applicant also criticised Ireland for failing to transpose the Framework Decision correctly, as a result of which the first attempt to have T. returned to Hungary was frustrated and a delay ensued before he returned to Hungary to commence his sentence. The Irish authorities had tried, belatedly, but failed to correct their error by amending the legislation in question. The Court would observe, first, that its competence is determined by Article 19 of the Convention, and it does not extend to assessing whether a Contracting State has correctly implemented any other of its international legal obligations. Furthermore, and notwithstanding the applicant ’ s criticisms, the Court considers that the Irish authorities genuinely and diligently sought to operate the European Arrest Warrant procedure. They pursued the matter to the Supreme Court in the first set of proceedings. Afterwards, albeit with some delay, the necessary legislative amendments were enacted. The procedure was then promptly resumed, and later on T. was taken into custody, where he remained for seven months, pending the final decision of the Supreme Court. The second set of proceedings involved complex questions of Irish law, as shown by the fact that the High Court certified that the appeal raised points of law of exceptional public importance and by the lengthy and divergent judgments given by the members of the Supreme Court. Once that court had ruled, it was not legally possible for the Irish authorities to compel T. to return to Hungary. As the applicant has indicated, the Hungarian and Irish authorities were able to arrange for T. to serve out his sentence mainly in Ireland. Ultimately, accountability for loss of life was enforced. It cannot therefore be said that Ireland has failed in any procedural obligation that may have arisen out of the accident that claimed the lives of the applicant ’ s children.

3 4 . It follows that t his part of the application as well must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 October 2015 .

Søren Nielsen Elisabeth Steiner Registrar President