Present regulation of arrest for extradition

One may be surprised that current Hungarian laws arrest for extradition is the only possibility for a person sought by extradition. It means that there are no alternatives of being arrested in prison while awaiting judgment in his extradition case.

Nevertheless, Hungary applies a wide range of so called ‘alternative coercive measures’ such as house arresthome curfew and bail. But these are not to be applied in extradition or EAW (European Arrest Warrant) cases.

 Why is that? What is the reason for this?

In my opinions this regulation was born from wrong, hurried law-making decisions in 2004, shortly before Hungary joined the EU and along with this European Arrest Warrants were introduced in our legal system.

I stress out that my interpretation of this subject should be considered as an opinion, however – as you will see – it is supported by objective facts and context.

 Historical background

So 2004 was the time when a modification to our Law No. XXXVIII of 1996 on Cooperation in International Criminal Matters was made, establishing that in extraditions and surrenders procedures no other measure than arrest for extradition may be used.

In Hungary – like other countries – an official reasoning must be included with each item of legislation. This reasoning is prepared by the competent minister, who in our case is the Minister of Justice. If we take a quick look at the reasoning of this modification of 2004, we only find one short, and clearly insufficient sentence: ‘impossibility of any forms of coercive measures lighter than arrest for extradition necessary to meet our international obligations

Just to make it clear: arrest for extradition is very similar to pre trial detention, both in function and in the way it is executed. Extradition and Surrender are again very similar institutions. To highlight the distinction, Hungarian law doesn’t use the expression ‘extradition’ in the context of European Arrest Warrants. Hungarian law instead uses the expression ‘surrender’.

 Why is this reasoning clearly false and insufficient?

  1.  1.Previously to this modification (which took effect on 1 May, 2004 (the date of our accession to the EU) there was no difference made between the extradition process and regular criminal procedures regarding point of arrest or other coercive measures restraining personal liberty.
  2. Presently there are many other EU member states where they use lighter forms of coercive measures restraining personal liberty, not exclusively arrest for extradition.
  3. Therefore if we study thoroughly the EU legal source on EAW (official name: 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrantand the surrender procedures between Member States) we find that there is not one single provision which would require this strictness. On the contrary it expressly leaves it to the competence of member states to make their legislative decisions in this question. (Article 12 says the following on keeping the person in detention: “When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding.”)

 Conclusion

We can therefore conclude that while on one hand it is not clearly against EU or international law to regulate this question this strict way, on the other hand the given reasons for the strictness of Hungarian law, its reference to all sorts of international obligations, are false and misleading.

Hungarian legislation ‘topped’ EU obligations by unnecessarily restricting the human rights of people sought by extradition.