O'Connor v Zentai: Double criminality strikes again

The Full Court of the Federal Court this week partially upheld the appeal of the government in O'Connor v Zentai [2011] FCAFC 102.

Charles Zentai is alleged to have murdered Peter Balazs in November 1944, a Hungarian Jew who was not wearing David’s Star on his sleeve, as was compulsory for Jews living under the Nazis at the time. A Hungarian Court issued an arrest warrant for him in 2005 and Mr Zentai has been fighting extradition attempts since.

The court held that Mr Zentai was an extraditable person under section 6 of the Extradition Act 1988 (Cth). The trial judge had previously ruled that because Mr Zentai had not yet been charged of a specific crime, he did not satisfy the definition of s6 which requires that a person be “accused” of committing an offence before he or she can be extradited. The Court held that such a distinction was not always clear and that the fact that an arrest warrant had been issued was sufficient reason to consider Mr Zentai “accused” of committing an offence.

The court however, disagreed with the Government’s argument that Mr Zentai’s conduct needed to simply amount to an offence under Hungarian law for Mr Zentai to be extradited. Dual criminality is a condition of the extradition treaty between Australia and Hungary, meaning that for extradition to occur, both countries must consider the actions of the person to be extradited as criminal. Hungary did not consider war crimes criminal in 1944, but did so in 1945. This was common as the offence of war crimes was largely a response to the Nazi atrocities.

The question which the Minister, Brendan O’Connor asked himself in deciding whether to extradite Mr Zentai was whether “the acts alleged against the respondent [Mr Zentai] amounted to an offence against the laws of Hungary in 1944” (per Jessup J at 163), where he should have asked himself whether the offence of “war crime” specifically was committed by Mr Zentai in killing Peter Balazs.

The fact that war crimes were not criminalised in Hungary at the time of the murder may present a significant challenge to the Minister. Mr Zentai may still appeal to the High Court on this issue, and there may be a further avenue of appeal if the Minister finds to his detriment.   

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