Court of Appeal dismisses appeal against refusal to surrender under European Arrest Warrant Act 2003.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

APPROVED – NO REDACTION NEEDED

Court of Appeal Record Number: 2025 158 High Court Record Number: 2025/63 EXT Neutral Citation Number: [2025] IECA 231

McCarthy J. Collins J. Owens J.

BETWEEN/

MINISTER FOR JUSTICE

APPLICANT/RESPONDENT

- AND -

ILDIKÓ CSEBÁN

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 21st day of November 2025

I. Background to the Appeal

1. On 26 April 2022, Ireland surrendered Ms. Ildikó Csebán (hereafter ‘the appellant’) to Hungary under s. 15 of the European Arrest Warrant Act 2003, as amended (hereafter ‘the Act of 2003’), on the basis of four European Arrest Warrants issued in respect of swindling/fraud charges. Upon her surrender to the Hungarian authorities, the appellant chose not to waive her right to rely upon the rule of speciality. Upon her conviction on those charges, she served a custodial sentence. She has since been released on parole.

2. On 16 May 2024, the District Court of Hódmezövásárhely, Hungary, issued a European Arrest Warrant against the appellant in respect of seven swindling/fraud charges that she is alleged to have committed on various dates in the summer of 2021. On 1 July 2024, the Hungarian Central Authority requested that the Minister for Justice (hereafter ‘the respondent’) give her consent, further to Art. 27(3)(g) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJEU L 190, p. 1, hereafter ‘the Framework

Decision’), to prosecute, sentence or otherwise deprive the appellant of her liberty in respect of the offences in the European Arrest Warrant of 16 May 2024. On 31 July 2024, the High Court refused an application under s. 22(7) of the Act of 2003, as amended by s. 15 of the European Arrest Warrant (Amendment) Act 2024, to accede to that request (2024 No. 146 EXT). In January 2025, a second application to the High Court made on foot of the same request met with an identical fate (2025 No. 16 EXT).

3. On 26 February 2025, the Hungarian Central Authority made a new request of the respondent on the same basis as its previous request. The appellant caused to have Points of Objection filed on her behalf on 31 March 2025. The respondent’s application came on for hearing before the High Court (Patrick McGrath J.) on 10 April 2025. In an ex tempore judgment delivered on that date, the learned trial judge observed that, under s. 22 of the Act of 2003, as amended, he was required to accede to the application provided that he was satisfied that the offences were not ones for which surrender would be prohibited or refused under Part 3 of that Act. The High Court accepted that the request, based upon the European Arrest Warrant of

16 May 2024, was set out with sufficient clarity as to enable it to rule upon it. No issue of correspondence arose, and the High Court was satisfied that the request would have satisfied that requirement. The High Court rejected the suggestion that because it had refused previous requests that had been made of it in respect of the same subject matter, a species of res judicata or issue estoppel arose, particularly since it had never considered those applications on their merits. Nor did the facts before the High Court disclose the existence of any abuse of process.

4. The High Court was invited to consider whether surrender should be declined by reason of non-compliance with Part 3 of the Act of 2003, namely the conditions in which the appellant would be detained in the event of her surrender to Hungary. It accepted the undertakings the Hungarian authorities proffered as to prison conditions in general and, in particular, at the location where the appellant would be detained, namely the Szombathely National Penal Institution. Since there was no evidence before the High Court as to detention conditions in that prison, a decision to refuse to accede to the request would breach the principle of mutual trust. The learned trial judge also observed that certain allegations of inhumane treatment in prisons of which the appellant claimed she was aware, contained in an affidavit that she made on 2 April 2025, were “extraordinary” and “utterly lack credibility”.

5. The High Court accordingly granted the application under s. 22(7) of the Act of 2003 and consented to proceedings being brought against the appellant in Hungary in respect of the offences set forth in the European Arrest Warrant of 16 May 2024. On 18 July 2025, this Court (Edwards J.) made an order to stay the execution of the respondent’s order under s. 22(7) of the Act of 2003 until the determination of this appeal. Directly after the hearing of the appeal on 14 October 2025, the Court announced that it would dismiss the appeal, lift the stay on the execution of the respondent’s order and deliver its reasons in writing at a date to be announced.

II. Ruling on the Appeal

6. At the hearing of the appeal, Counsel for the appellant, with commendable efficiency, posited the case being made on her behalf on two grounds: the interpretation and the application of s. 22(7) of the Act of 2003 in, and the High Court’s application of the principles derived from Joined Cases C-404/15 & C-659/15 PPU Aranyosi and Căldăraru EU:C:2016:198, Minister for Justice v. Angel [2020] IEHC 699 and Minister for Justice, Equality & Law Reform v. Rettinger [2010] 3 I.R. 783 to, her circumstances.

(a) Section 22(7) of the Act of 2003

7. On 30 April 2024, the respondent made the European Arrest Warrant (Amendment) Act 2024 (Commencement) Order 2024 (S.I. No. 180/2024) by which the said Act entered into force on 1 May 2024. Section 15 of the European Arrest Warrant (Amendment) Act 2024 (hereafter ‘the Act of 2024’) substituted the following for the text of s. 22(7) of the Act of 2003:

The High Court shall, in relation to a person who has been surrendered to an issuing state under this Act, not later than 30 days after receipt of a request in writing from the issuing state in that behalf, consent to—

(a) proceedings being brought against the person in the issuing state for an offence,

(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or

(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence,

provided that the offence is not—

(i) an offence for which his or her surrender would be prohibited by virtue of Part 3, or

(ii) an offence for which his or her surrender would be refused under Part 3.

8. That amendment made two changes to the text of s. 22(7) of the Act of 2003 (as substituted by s. 80 of the Criminal Justice (Terrorist Offences) Act 2005). It replaced the word ‘may’ in the first line with ‘shall’. It also introduced the proviso that expressly permitted the High Court to refuse consent where the offence in respect of which consent was sought would be prohibited by, or refused under, Part 3 of the Act of 2003.

9. It was submitted on the appellant’s behalf that, had the Hungarian authorities sought her surrender in respect of offences that she had allegedly committed in 2021 in the two years between the date of her surrender to Hungary in April 2022 and the entry into force of the amendment to s. 22(7) of the Act of 2003 in May 2024, the High Court, under the text of s. 22(7) of the Act of 2003 as it then stood, would have enjoyed a discretion as to whether to consent to that request. In the exercise of that discretion, the High Court had jurisdiction to investigate any matter that it considered relevant, including the reasons for the delay on the part of the Hungarian authorities to seek a waiver of the rule of speciality. Had the High Court not been satisfied with the explanations tendered, or by reference to any other considerations, it could have refused the request. The appellant advanced no other consideration that the High Court might, in the exercise of that discretion, have relied upon to refuse the request.

10. Prior to embarking upon the interpretation of s. 22(7) of the Act of 2003, three preliminary observations may be made. First, the process that led to the request the subject matter of the High Court order under s. 22(7) of the Act of 2003 commenced with the District Court of Hódmezövásárhely issuing a European Arrest Warrant on 16 May 2024. Any application to waive the rule of specialty as a consequence of that process was made under s. 22(7) of the Act of 2003 in its present form. The appellant is thus not in a position to assert that she was deprived of the benefit of a procedure that might have resulted in an outcome more favourable to her due to an intervening change in the law in the course of the process that led to that request. Second, as a matter of law, the processes that led to her surrender to Hungary on European Arrest Warrants in April 2022 and the subsequent request for consent to prosecute, sentence or otherwise deprive her of her liberty in respect of the offences contained in the European Arrest Warrant of 16 May 2024, are separate and distinct: see Case C-142/22 OE v. Minister for Justice & Equality EU:C:2023:544. Third, the Court was not referred to any authority to support the proposition that, as a consequence of any delay on the part of the Hungarian authorities in obtaining the European Arrest Warrant of 16 May 2024, the High Court ought not to accede to the s. 22(7) request.

11. The Long Title of the Act of 2003 represents that it was enacted to give effect to the Framework Decision. In Minister for Justice, Equality & Law

Reform v. Altaravicius [2006] 2 I.L.R.M. 241 Murray C.J. (nem. diss.), citing para. 43 of the judgment of the Court of Justice of the European Union (hereafter ‘Court of Justice’) in Case C-105/03 Pupino EU:C:2005:386, held that the Act of 2003 “…must be interpreted in the light of the terms of the Framework Decision which it implements and with particular regard to the objectives to be achieved.” (at 246, see also 248-249).

12. Section 22(7) of the Act of 2003 gives effect to Art. 27 of the Framework

Decision. Headed up, ‘Possible prosecution for other offences’, Art. 27.2 provides that 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 except in the cases to which paras. 1 and 3 refer. Art. 27.3(g) states that para. 2 does not apply where the executing judicial authority, which surrendered the person, gives its consent in accordance with para. 4, which is in the terms following:

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.

13. When read together, paras. 2, 3(g) and 4 of Art. 27 of the Framework

Decision appear to require a Member State to consent to a request by another Member State for the surrender of a person to be prosecuted, sentenced or otherwise deprived of her liberty for an offence committed prior to her surrender other than that for which she was surrendered save in the presence of the grounds to which Art. 3 refers, where consent must be refused, or those to which Art. 4 refers, where consent may be refused. The operation of these procedures is subject to the overriding obligation to respect fundamental rights and the legal principles enshrined in Art. 6 of the Treaty on European Union. Those provisions contain no trace of the discretion that the appellant asserts is vested in the High Court as a consequence of the provisions of s. 22(7) of the Act of 2003 as they stood prior to their amendment on 1 May 2024. To achieve an interpretation in conformity with the terms of the Framework Decision and the objectives it seeks to attain, the word ‘may’ that appeared in the version upon which the appellant seeks to rely, had to be interpreted as ‘shall’: see, for instance, State (Elm Developments Ltd.) v. An Bord Pleanála [1981] I.L.R.M. 108, 111 per Henchy J. It follows that, by replacing the word ‘may’ with ‘shall’ and inserting the proviso recognising the operation of Part 3 of the Act of 2003, the amendment that s. 15 of the Act of 2024 effected to s. 22(7) merely brought that provision into express, rather than implied, compliance with the clear terms of Art. 27 of the Framework Decision.

14. It follows that, insofar as the appeal relies upon an interpretation of s. 22(7) of the Act of 2003, in its version prior to 1 May 2024, according to which the High Court enjoyed a discretion to refuse a request by another Member State for the surrender of a person to be prosecuted, sentenced or otherwise deprived of her liberty for an offence committed prior to her surrender other than that for which she was surrendered save in the presence of the grounds referred to in Art. 4 of the Framework Directive, it must be dismissed.

(b) Application of principles derived from case-law

15. There was broad agreement between the parties as to the principles to be derived from the case-law cited at para. 6, above. At para. 104 of its judgment in Aranyosi and Căldăraru, the Court of Justice sets out, in the dispositive part, that:

Article 1(3), Article 5 and Article 6(1) of the Framework Decision must be interpreted as meaning that where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State. To that end, the executing judicial authority must request that supplementary information be provided by the issuing judicial authority, which, after seeking, if necessary, the assistance of the central authority or one of the central authorities of the issuing Member State, under Article 7 of the Framework Decision, must send that information within the time limit specified in the request. The executing judicial authority must postpone its decision on the surrender of the individual concerned until it obtains the supplementary information that allows it to discount the existence of such a risk. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.

16. The appellant contended that she had adduced objective, reliable, specific and properly updated evidence with respect to detention conditions in Hungary that demonstrated the existence of deficiencies that amounted to substantial grounds for a belief that, because of those conditions, she would be exposed to a real risk of inhuman or degrading treatment within the meaning of Art. 4 of the Charter of Fundamental Rights of the European Union in the event of her surrender. Having done so, the High Court was under an obligation to make inquiries of the Hungarian authorities and to postpone its decision on the request until it had obtained information that allowed it to discount the existence of that risk.

17. In support of his submission, Counsel for the appellant referred to the two documents exhibited in affidavits made by Mr. Tony Hughes, Solicitor, on 18 February and 31 March 2025 respectively. The first of these is an extract from the web-site of the Hungarian Helsinki Committee dated 18 December 2023. It refers to a submission that body made to the Committee of Ministers of the Council of Europe, which is responsible for the enforcement of the judgments of the European Court of Human Rights, in the context of that Court’s pilot judgment of 10 March 2015 in Varga & Ors. v. Hungary CE:ECHR:2015:0310JUD001409712 to the effect that there had been an increase in prison overcrowding and the presence of other substandard conditions of detention, such as pest infestation, in Hungary. The second is a copy of a report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment dated 3 December 2024 of a visit it conducted in May 2023 to prisons located at Székesfehérvár, Nyíregyháza and Tiszalök in Hungary. Notwithstanding that there had been improvements in detention conditions across what it described as “the prison estate”, it reported the presence of persistent overcrowding. It also recorded allegations of ill-treatment of prisoners by staff in Tiszalök, but not in the other two prisons it visited.

18. Counsel for the appellant laid particular emphasis on the contents of his client’s affidavit of 2 April 2025, in which she avers that, after her surrender to Hungary, she experienced inhumane conditions in prisons in Gyorskocsi St., Budapest and Szeged, where she was detained between 26 April 2022 and 9 July 2024. Paragraph 8 of her affidavit states that “I am aware that prisoners were beaten, forced to have sexual relations and I was exposed to situations where bedbugs and cockroaches crawled on me day and night while I slept. I experienced eight persons detained in a small cell and that there was no proper light or ventilation”. In reliance upon the judgment of Clarke C.J. in RAS Medical Ltd. v. Royal College of Surgeons in Ireland [2019] 1 I.R. 63, he submitted that the High Court was required to accept this uncontradicted sworn testimony in the absence of any challenge thereto by way of cross-examination or otherwise.

19. Counsel for the respondent submitted that the information the appellant furnished to the High Court fell far short of what was required to satisfy the first limb of the test in Aranyosi and Căldăraru. None of the information she provided related to detention conditions at the Szombathely National Penal Institution, where the Hungarian authorities have undertaken to transfer the appellant as soon as possible after her reception. In the light of the assurances those authorities provided, and the operation of the principles of mutual trust and confidence, the High Court was correct to draw its own conclusions as to the credibility of the appellant’s evidence. Counsel for the respondent further asserted that the appellant did not address the practical difficulties involved in complying with the requirements laid down in RAS Medical Ltd. v. Royal College of Surgeons in Ireland and suggested that if the credibility of an averment could not be assessed in the absence of a deponent it would become impossible to meet requests under the Act of 2003.

20. It is striking that the information submitted on the appellant’s behalf does not engage with the undertaking the Hungarian authorities gave, which, in the light of the principles of mutual trust and sincere co-operation between Member States, must be accepted in the absence of evidence to the contrary, that the appellant will be transferred to the Szombathely National Penal Institution as soon as possible after her reception. Such evidence as the High

Court had before it concerning the conditions of detention in that establishment did not demonstrate the presence of deficiencies as would have prevented it from making the order under appeal. In circumstances where the appellant appears to have been unable to contradict that evidence – and the onus rests upon the party resisting execution - it was open to the High Court to find that the entirety of the information that had been placed before it did not satisfy the first limb of the test in Aranyosi and Căldăraru so as to put it under an obligation to conduct such further inquiries as the second limb of that test might require. As Fennelly J. held in Rettinger ([2010] 3 I.R. 783, 817)

It is neither possible nor appropriate to prescribe too narrowly the way in which a judge should assess the evidence, whose quality necessarily varies enormously. The credibility of any evidence will depend on all the circumstances of the individual case. In the final analysis, it is a matter for the judge to decide whether the necessary substantial grounds have been established for believing that there is a real risk of ill-treatment contrary to Article 3. He does not have to be convinced that ill-treatment would probably occur. There is no shifting of the burden of proof in the absence of evidence of substantial grounds. The judge may, however, regard the failure of the Minister to respond to evidence produced as significant. In that situation, he may reasonably expect the Minister to produce some evidence.

21. By reason of the foregoing, I dismiss the second ground advanced in this appeal. Whilst it does not fall for decision in the light of that conclusion, I would add that I see no reason why, in a case where there is a conflict of evidence on a material issue that cannot be resolved otherwise than by the cross-examination of a deponent, the judgment of Clarke C.J. in RAS Medical Ltd. v. Royal College of Surgeons in Ireland should not apply in like manner as in any other proceeding that is heard on affidavit evidence.

III. Conclusion

22. For the reasons set out in Part II, I propose to dismiss this appeal and to affirm the High Court Order.

23. The Court made recommendations for the appellant’s representation under the Custody Issues Scheme. There was no application for the costs of the appeal.

24. Since this judgment is delivered electronically, I am authorised by McCarthy and Owens JJ. to state that they agree with it and with the orders proposed therein.

Appearances:

For the Appellant: Paul Carroll SC and Kieran Kelly, instructed by Tony Hughes & Co., Solicitors

For the Respondent: John Fitzgerald SC and Conal Ellis, instructed by the Chief State Solicitor