Facts of the case
In 2014 I had the opportunity to work as defense counsel in an exciting extradition case in Hungary. This case was a 100 % success, so it is pleasant for me to recall my memories about its details.
A foreign citizen was caught at the Hungarian airport. There was an international warrant for his arrest issued by a foreign country. He was charged there with trafficking considerable amount of drugs and money laundering. According to the foreign Ministry of Justice, money laundering was a natural extension of the drug enterprise as a way to hide large amount of cash.
Drug trafficking: Is the substance legal or illegal?
The subject of trafficking were basically ‘research chemicals’ or ‘legal highs’ which were banned in the foreign country (and many other countries of the world) around that time.
Nevertheless it turned out from my (and my foreign counterpart’s) research that in the period given by the foreign law enforcement authorities these chemicals qualified actually as illegal substances in the foreign country, but not in Hungary. In Hungary these were banned only a few months later. This finding was shortly confirmed by a chemist judicial expert hired by me. The official judicial expert appointed by the Hungarian court later agreed with the my private expert’s opinion.
It was clear that extradition must not be granted for the offense of drug trafficking according to the classic rule of double criminality. In extradition law, the principle of double criminality (also referred as to dual criminality) means that extradition may be granted only for acts, offenses alleged as crimes in both jurisdictions (i.e., both in the extraditing country and in the one requesting extradition).
Dual criminality of money laundering
The real question was the possibility of dual criminality for money laundering. Money laundering is clearly illegal by Hungarian Criminal Law.
Our defense strategy was therefore to argue that money laundering is an auxiliary offence. It means that there must be a basic (or primary) offence from which the ‘laundered’ money originated from. Lack of this basic criminal offense prevents criminal responsibility for money laundry. This was a solid argument, so I expected to win the case at the court trial.
Hardships at the court trial
Finally the case turned out to be much more stirring than expected.
While the prosecutor accepted our arguments about the lack of dual criminality of money laundering, it was suggested that the person sought by extradition should be extradited for the offence of smuggling. The prosecutor’s reasoning was that my client did not pay customs fees for the chemical substances ordered from a far-east country (qualifying as drugs according to the foreign criminal law but legal materials according to the Hungarian law at that period of time).
The court finally agreed with my position stating that my client may not be held responsible for smuggling. The reason given was that paying customs for the goods would have been equal to reporting himself to the police. This would have been equal to ‘self incrimination’ which no one is obliged to do according to the principles of Hungarian Criminal Law.
This would have been the successful end of the story but the court of first instance also declared that my client is extraditable for his action which – on the other hand – may qualify as ‘Establishment of a Criminal Organization’ which is a criminal offense according to Hungarian law.
I appealed the decision. In my appeal I argued the following:
Although it is true that that establishment of a criminal organization is a criminal offence in Hungary, this offence is an auxiliary one. This means that a primary offence is needed as the ‘goal’ of the criminal organization. In case the trafficking with the substances is not criminal, the establishment of the organization should not be criminal either.
Finally the metropolitan court, as second instance court, agreed with my position and two weeks later they established that legal conditions of extradition are deficient in the case and released my client from custody.
Based on this court ruling, the Hungarian Minister of Justice denied extradition of my client.