Minister for Home Affairs of the Commonwealth v Zentai – Extradition for alleged war crimes

The High Court has handed down a verdict in the case of Minister for Home Affairs of the Commonwealth v Zentai, part of a long-running series of cases concerned with the extradition of Charles Zentai to Hungary for prosecution for an alleged war crime committed in 1944. 

The appeal in this case concerns a constraint upon the statutory power of the Minister for Home Affairs to determine that a person is to be surrendered for extradition in relation to an offence which did not exist at law in the requesting country at the time of the acts said to constitute the offence.

History

In 2009 the Minister determined, pursuant to s 22(2) of the Extradition Act 1988 (Cth), that Mr. Zentai was to be surrendered to the Republic of Hungary.  The determination related to an extradition offence constituted by the alleged commission of a war crime involving the killing of a young Jewish man at Budapest in November 1944.  The offence of committing a "war crime" did not exist under the law of the Republic of Hungary until 1945.  The decision was made on the basis that it was sufficient that the alleged conduct constituted a criminal offence in 1944, namely murder .  The Republic of Hungary did not seek the respondent's extradition for the crime of murder.

In 2010, the Federal Court, on the application of the respondent, quashed the Minister's decision and required him to determine that the respondent be released and not be surrendered to the Republic of Hungary .  The Full Court of the Federal Court, on appeal by the Minister, held by majority that the Minister had misconstrued a key provision of the Treaty on Extradition between Australia and the Republic of Hungary.  The Treaty did not provide for extradition in relation to an offence which did not exist at law at the time it was allegedly committed.  However, the Full Court made a substituted order for the issue of mandamus requiring the Minister to determine whether the respondent was to be surrendered to the Republic of Hungary – in effect, to reconsider his determination on the basis that the Treaty did not provide for extradition in relation to an offence which did not exist at the time of the act.

In the present case, the Minister appealed against the decision of the Full Court pursuant to a grant of special leave made on 9 December 2011 . 

In a majority decision (Heydon J dissenting), the court found that the appeal should be dismissed with costs, reasoning that “it cannot proceed on the basis that if the conduct of the respondent constituted some species of criminal offence at the time it was committed, that circumstance will be sufficient to support a request for extradition in relation to any species of offence later created by law and retroactively covering that conduct.  The request for the extradition of the respondent for commission of a war crime cannot rest simply upon the proposition that the alleged conduct would have constituted the offence of murder under Hungarian law in 1944.” (French CJ). Similarly, Gummow, Crennan, Kiefel and Bell JJ found that “the inquiry … is not whether the acts or omissions particularised in the request were capable of giving rise to any form of criminal liability under the laws of the Requesting State at the time they were committed, but whether, at that time, those acts or omissions constituted the offence for which extradition is sought.  Hungary seeks Mr Zentai's surrender for extradition for the offence of "war crime".  The facts set out in the arrest warrant, if proved, may support Mr Zentai's conviction for the offence of murder.  However, Hungary has chosen not to request Mr Zentai's extradition for prosecution for that offence.  Under Australian law as modified to give effect to the Treaty, the Minister is precluded from surrendering Mr Zentai for extradition unless he is satisfied that the offence of "war crime" was an offence against the law of Hungary on 8 November 1944. “ 

The Caselink feature of our LawOne Service has over 70, 000 links to judgments relating to legislative provisions, making it an essential research tool for legal professionals.