SECOND SECTION

DECISION

Application no . 5380/12 Melvin WEST against Hungary and the United Kingdom

The European Court of Human Rights (Second Section), sitting on 14 April 2015 as a Chamber composed of:

Işıl Karakaş, President, András Sajó, Nebojša Vučinić, Helen Keller, Egidijus Kūris, Robert Spano, Jon Fridrik Kjølbro, judges,

and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 18 January 2012,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Melvin West, is a British national, who was born in 1956 and lives in Loughton. He is represented before the Court by Mr G. Magyar, a lawyer practising in Budapest.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant and as described in the judgment of the Court of Justice of the European Union adopted on 28 June 2012 in the case C-192/12 PPU, may be summarised as follows.

3 . The applicant, at that time using the name Melvin Nelson Perry, stole rare and ancient maps from the French National Library in Paris, France (on 26 October 1999 and 5 September 2000), the Széchényi National Library in Budapest, Hungary (in the period 16 to 18 August 2000) and the University Library in Helsinki, Finland (in the period 22 to 26 February 2001).

4 . In Finland, the Helsinki District Court sentenced him to 18 months ’ imprisonment on 4 September 2001. The judgment was confirmed by the Helsinki Court of Appeal on 31 May 2002. Following the first instance judgment the applicant returned to the United Kingdom.

5 . In France, the Paris T ribunal de grande instance sentenced the applicant to three years ’ imprisonment on 15 February 2007. The judgment was adopted in absentia , following an unsuccessful attempt in 2005 to secure (by the means of a European arrest warrant issued by the French authorities on 14 March 2005) the presence of the applicant, who was at that time in detention in the United Kingdom.

6 . On 31 August 2007, the French authorities issued a new European arrest warrant for the purposes of executing that custodial sentence.

7 . On 9 December 2009 the competent Finnish authority issued a European arrest warrant against the applicant, for the purposes of the execution of his remaining 17 months ’ custodial sentence. The request made clear that under Finnish law, the statute of limitation required that the applicant start to serve his sentence before 30 May 2012.

8 . On 1 April 2010, a third European arrest warrant was issued against the applicant, this time by the Hungarian authorities for the purposes of criminal proceedings instituted against him in Hungary.

9 . On 17 September 2010 the applicant was arrested in the United Kingdom. Upon the analysis of his fingerprints, it was established that he had another identity under the name Mark Rowley. I n execution of the European arrest warrants issued by the Hungarian judicial authorities, he was surrendered to Hungary on 8 December 2010. That surrender was not made subject to any condition.

10 . In Hungary, the applicant identified himself with a passport issued under the name Melvin West. The analysis of his fingerprints showed that he was the same person as Melvin Nelson Perry and Mark Rowley.

11 . The Buda Central District Court heard the applicant and ordered his pre-trial detention for one month on 10 December 2010. The Budapest Regional Court upheld the first instance decision on 13 December 2010.

12 . On 27 December 2010 the Budapest Regional Court held a hearing concerning the applicant ’ s surrender in pursuit of the European arrest warrants issued by the French and Finnish authorities. It ordered the applicant ’ s temporary transfer detention but postponed the execution of that measure until the end of the applicant ’ s pre-trial detention – or, potentially, his detention after conviction – in Hungary.

13 . On 4 January 2011 the Buda Central District Court extended the applicant ’ s pre-trial detention until 10 April 2011. The Budapest Regional Court upheld the decision on 10 February 2011.

14 . Since meanwhile the original copies of both the French and the Finnish European arrest warrants had arrived in Hungary, on 27 January 2011 the Budapest Regional Court changed the applicant ’ s postponed “temporary transfer detention” to ordinary “transfer detention” and also ordered his postponed surrender to Finland, within ten days from the date on which his detention in Hungary would come to an end. The Regional Court decided to give priority to the execution of the Finnish request, because in France the applicant (having been convicted in absentia ) might still be retried, which retrial might take place either during the execution of the Finnish sentence (by means of temporary surrender) or subsequent to it. The Regional Court dismissed as irrelevant the applicant ’ s argument concerning his close ties with the United Kingdom and his wish to serve his sentences in that country. It pointed out that the applicant would have the possibility to request his transfer to the United Kingdom for the service of his sentences, however only before the Finnish or French authorities. The decision was upheld by the Budapest Court of Appeal on 4 February 2011.

15 . On 3 March 2011 a bill of indictment was preferred against the applicant by the Budapest I/XII District Public Prosecution Office.

16 . On 29 March 2011 the Buda Central District Court extended the applicant ’ s pre-trial detention until the end of the first instance proceedings. On 13 May 2011 the Budapest Regional Court upheld the decision.

17 . On 5 July 2011 the Buda Central District Court sentenced the applicant to 16 months ’ imprisonment. The judgment became final on the same day.

18 . The applicant finished to serve his sentence in Hungary on 29 August 2011 and, according to the 27 January 2011 decision of the Budapest Regional Court, his transfer detention with a view to his surrender to Finland begun on the same date.

19 . However, the consent of the competent authority of the United Kingdom was required for the applicant ’ s surrender to Finland (see section 32 of the Act no. CXXX of 2003 on the Co-operation with the Member States of the European Union in Criminal Matters, implementing Article 28 (4) of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States). The Hungarian central authority requested this consent on 30 August 2011. The competent authority of the United Kingdom informed its Hungarian counterpart that its decision would only be taken on 7 September 2011. This circumstance prevented the applicant from being surrendered to Finland within the ten-day time-limit laid down in the decision of the Budapest Regional Court (that is, by 8 September 2011).

20 . Therefore, on 5 September 2011 the Budapest Regional Court extended the time-limit, set 17 September 2011 as the new surrender date and held that the surrender should take place within ten days of this new date, that is, by 27 September 2011. The Regional Court considered that, according to the relevant provision (section 20 (3) of the Act no. CXXX of 2003), if the surrender of the requested person within the period down originally laid down is prevented by circumstances beyond the control of any of the Member States, a new surrender date shall be agreed and the surrender shall take place within ten days of the new date thus agreed. In the court ’ s view, the surrender proceedings concerned Hungary and Finland and the absence of the consent from the United Kingdom was a circumstance beyond the control of Hungary or Finland.

21 . On 31 August 2011 a District Judge sitting at Westminster Magistrates ’ Court invited the applicant to make representations about the request for his surrender to Finland. The decision of the Magistrates ’ Court was transmitted to the Hungarian central authority by fax on the same day. However, it was not served on the applicant before 9 September 2011.

22 . On 9 September 2011 the District Judge sitting at Westminster Magistrates ’ Court gave consent, “in accordance with sections 54 and 55 of the Extradition Act 2003, to the [applicant] being dealt with [in Hungary] in respect of [another] offence”.

23 . On 15 September 2011 the applicant was surrendered to Finland.

24 . The applicant appealed against the decision of the Budapest Regional Court of 5 September 2011. He argued, first, that his surrender to Finland (decided on 27 January 2011) was unlawful, for want of the consent of the United Kingdom authorities. Second, he was of the view that the prolongation of the time-limit for surrender was also unlawful because the absence of the consent from the United Kingdom had neither been beyond the control of any of the Member States (the United Kingdom being a Member State of the European Union) nor unpreventable (since the Hungarian authorities had had several months to obtain the consent). Third, he claimed that the consent had been mistakenly given for his trial in Hungary on account of another offence, and not for his surrender to Finland. Fourth, he complained that he could not exercise his defence rights, because the decision of the Westminster Magistrates ’ Court inviting him to make representations about his surrender had not been served on him in due time.

25 . On 16 December 2011 the Budapest Court of Appeal upheld the first instance decision of 5 September 2011 of the Budapest Regional Court. It was of the view that the prolongation of the applicant ’ s transfer detention was lawful. It considered it immaterial that the judge of the Westminster Magistrates ’ Court “referred to [sections 54 and 55 of the Extradition Act 2003, instead of sections 56 and 57], potentially by mistake”. It also observed that the consent of the United Kingdom had already been obtained by 15 September 2011, hence the lawfulness of the applicant ’ s surrender to Finland.

B. Relevant domestic and European Union law

1. Domestic law of Hungary

26 . Act no. CXXX of 2003 on the Co-operation with the Member States of the European Union in Criminal Matters, as relevant and as in force at the material time, provided:

Section 20

“(2) The person requested shall be surrendered to the competent judicial authority of the issuing Member State no later than 10 days after the final decision on the execution of the European arrest warrant and on the surrender.

(3) If the surrender of the requested person within the period laid down in subsection (2) is prevented by circumstances beyond the control of any of the Member States [ a tagállamok bármelyikén kívül eső elháríthatatlan akadály ] , a new surrender date shall be agreed. In that event, the surrender shall take place within 10 days of the new date thus agreed. ...

(5) Upon expiry of the time limits referred to in subsections (2) to (4), if the person concerned is still being held in custody, he shall be released immediately.”

Section 23

“If the person requested is in pre-trial detention at the time when arrest for surrender is requested, or if such a person is serving a sentence of imprisonment or subject to other measures for deprivation of personal liberty, arrest for surrender shall be executed when the pre-trial detention ends, or upon conclusion of the sentence or other measures for deprivation of personal liberty.”

Section 32

“(1) A person requested may, without the consent of the executing Member State, be surrendered to a Member State other than the executing Member State pursuant to the European arrest warrant issued for any offence committed prior to his or her surrender in the following cases:

(a) where the requested person, having had an opportunity to leave the territory of the Republic of Hungary, has not done so within 45 days of his final release or has returned to that territory after leaving it;

(b) where the requested person consents to be surrendered to a Member State other than the executing Member State pursuant to the European arrest warrant. Consent shall be given before the court, and shall be recorded in minutes, which shall be signed by the judge and the person making the statement. It shall be drawn up in such a way as to make clear that the person concerned has given it voluntarily and in full awareness of the consequences. The requested person shall have the right to legal counsel;

(c) where the requested person is not subject to the ‘ speciality rule ’ , in accordance with subsections (a), (e), (f) and (g) of Section 31 (2).

(2) Notwithstanding the cases referred to in subsection (1), a person who has been surrendered pursuant to a European arrest warrant, shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person.”

2. Domestic law of the United Kingdom

27 . The Extradition Act 2003 provides as relevant:

Part 1 Extradition to category 1 territories

Section 1

“ (1) This Part deals with extradition from the United Kingdom to the territories designated for the purposes of this Part by order made by the Secretary of State.

(2) In this Act references to category 1 territories are to the territories designated for the purposes of this Part.

... ”

Section 54 Request for consent to other offence being dealt with

“ (1) This section applies if—

(a) a person is extradited to a category 1 territory in respect of an offence in accordance with this Part;

(b) the appropriate judge receives a request for consent to the person being dealt with in the territory for another offence;

(c) the request is certified under this section by the designated authority.

... ”

Section 56 Request for consent to further extradition to category 1 territory

“ (1)This section applies if—

(a) a person is extradited to a category 1 territory (the requesting territory) in accordance with this Part;

(b) the appropriate judge receives a request for consent to the person ’ s extradition to another category 1 territory for an offence;

(c) the request is certified under this section by the designated authority.

...

(4) The judge must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so.

(5) The consent hearing must begin before the end of the required period, which is 21 days starting with the day on which the request for consent is received by the designated authority.

(6) The judge may extend the required period if he believes it to be in the interests of justice to do so; and this subsection may apply more than once.

(7) The power in subsection (6) may be exercised even after the end of the required period.

(8) If the consent hearing does not begin before the end of the required period and the judge does not exercise the power in subsection (6) to extend the period, he must refuse consent.

(9) The judge may at any time adjourn the consent hearing.

(10) The consent hearing is the hearing at which the judge is to consider the request for consent. ”

28 . According to Article 2 (2) of the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003, as amended by the Extradition Act 2003 (Amendment to Designations) Order 2004 on 27 July 2004, Hungary is a territory designated for the purposes of Part 1 of the Extradition Act 2003.

3. European Union law

29 . The Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (“the Framework Decision”), provides, as relevant:

Article 5 Guarantees to be given by the issuing Member State in particular cases

“The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

...

3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.”

Article 23 Time limits for surrender of the person

“1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.

2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.

3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

...

5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.”

Article 24 Postponed or conditional surrender

“1. The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in th e European arrest warrant. ...”

Article 27 Possible prosecution for other offences

“2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.

...

4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.”

Article 28 Surrender or subsequent extradition

“4. Notwithstanding paragraph 1, a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law.”

30 . Unlike the finally adopted text of Article 23 (3) that refers to a situation where surrender is “prevented by circumstances beyond the control of any of the Member States” (see above), the draft of the proposal for the Framework Decision, presented by the European Commission in 2001 (see Official Journal of the European Union C 332 E, 27/11/2001, p. 0305–0319), contained the following expression: “prevented by circumstances beyond the control of the executing Member State”.

COMPLAINTS

31 . The applicant complains under Article 5 § 1 of the Convention that he was deprived of his liberty in breach of Hungarian and European Union law when he was kept in detention despite the expiry of the time-limit for surrender and was surrendered to Finland in the absence of consent from the United Kingdom in this respect.

32 . As regards his continued detention, the applicant alleges in particular that his surrender in the normal time-limit was prevented by the lack of consent of the British authorities, a consent requested by the Hungarian authorities only belatedly. He is of the opinion that these circumstances were not “ beyond the control of any of the Member States”, as required by the relevant laws, because both Hungary and the United Kingdom are Member States of the European Union. In his interpretation, the applicable criterion would have been met if the circumstances were beyond the control of every European Union Member State, whichever of them might be chosen; whereas the Hungarian authorities found to be sufficient that the circumstances were beyond the control of at least one of the Member States.

33 . Under Article 6 of the Convention the applicant also complains that the Hungarian authorities failed to grant him an opportunity to make representations about his surrender to Finland before the competent court of the United Kingdom.

34 . Furthermore, he alleges a violation of Article 8 of the Convention due to a failure of the British and Hungarian authorities to consider the possibility of returning him to the United Kingdom to serve his Finnish sentence in his home country.

THE LAW

35 . The applicant complains against the United Kingdom, alleging that the British authorities failed to consider the possibility of eventually having him returned to the United Kingdom for him to serve the Finnish sentence in his home country. He relies on Article 8 of the Convention.

36 . The Court notes that, even assuming that the United Kingdom could have surrendered the applicant to Hungary on condition that, once tried, he would be returned to the United Kingdom (see Article 5 (3) of the Framework Decision quoted above), this complaint was submitted outside the six-month time-limit contained in Article 35 § 1, to be counted from the applicant ’ s surrender to Hungary on 8 December 2010.

37 . It follows that this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

38 . The applicant further complains that he was deprived of his liberty in breach of Article 5 § 1 of the Convention when he was kept in detention in Hungary despite the expiry of the time-limit for his surrender to Finland.

39 . The Court considers that this complaint falls to be examined under Article 5 § 1 (f) of the Convention, which provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

40 . The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

41 . Lastly, the applicant complains about his surrender to Finland in the absence of consent from the United Kingdom in this respect , as well as about the failure of the Hungarian authorities to grant him an opportunity to make representations about his surrender to Finland before the competent court of the United Kingdom and to consider the possibility of returning him to the United Kingdom to serve his Finnish sentence in his home country. He relies, respectively, on Articles 5, 6 and 8 of the Convention.

42 . The Court considers that it is not at this stage able to determine whether these complaints should be communicated to the Government in accordance with Rule 54 § 2 (b) of the Rules of Court, and adjourns their examination.

For these reasons, the Court unanimously

Declares inadmissible the applicant ’ s complaint against the United Kingdom;

Decides to adjourn the examination of the remainder of the application.

Done in English and notified in writing on 4 June 2015.

Stanley Naismith Işıl Karakaş Registrar President