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(Source picture: Nekrolog)

(Source picture: Nekrolog)

Minister for Home Affairs of the Commonwealth v. Zentai

Court High Court of Australia, Australia
Case number [2012] HCA 28
Decision title Order
Decision date 15 August 2012
Parties
  • Minister for Home Affairs of the Commonwealth
  • Charles Zentai
Categories War crimes
Keywords Australia, extradition, Hungary, judicial cooperation, Murder, second World War, war crimes
Links
Other countries involved
  • Hungary
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Summary

Charles Zentai is an Australian citizen, who is accused of involvement in the killing of a young Jewish man, Mr Balazs, in Budapest in November 1944. The young man was not wearing his yellow star, upon which Zentai allegedly dragged him to an army post and, with others, beat him to death.

In 2005 the Republic of Hungary asked Australia to extradite Charles Zentai. In 1944, there was no offence of war crime in the Hungarian Criminal Code. Although murder was a crime in the National Code in 1944, the Republic of Hungary did not seek the accused’s surrender for prosecution for murder, but for war crime.

On 12 November 2006, the Minister determined that the accused was to be surrendered to the Republic of Hungary. A judge of the Federal Court and later on the Full Court of the Federal Court required that the accused should be released.

On 15 August 2012, the High Court determined that the Minister could not extradite the accused, because the Treaty on Extradition between Australia and the Republic of Hungary determines that extradition may only take place for a crime that was an offence in the Requesting State at the time the acts constituting it occurred. 

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Procedural history

On 23 March 2005 the Military Division of the Metropolitan Court of Budapest issued a warrant for the arrest of the Accused. On 8 July 2005 a provisional warrant for the arrest of the respondent was issued. The respondent was arrested and granted bail. On 20 August 2008, a magistrate determined that the respondent was eligible for surrender to the Republic of Hungary. The Accused challenged this decision at first instance, on appeal to the Full Court of the Federal Court and on appeal to High Court. These appeals were all denied. (See here for a chronology of events)

On 12 November 2009 the Minister determined that the Accused was to be surrendered to the Republic of Hungary.

On 10 December 2010, a judge of the Federal Court (Judge Kerracher) on the application of the Accused, directed the issue of writs of certiorari and mandamus to quash the Minister’s decision and require him to determine that the accused would be released and not be surrendered to the Republic of Hungary (para. 3).

The Full Court of the Federal Court held by majority that the Minister had misconstrued a key provision of the Treaty in purporting to make his determination (para. 3).

On 9 December 2011 the Minister appealed against the decision of the Full Court (para. 6). The High Court of Australia determined that the Minister’s appeal should be dismissed on 15 August 2012.

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Related developments

The case of Charles Zentai is a recent example of the campaign in Hungary to bring ‘Nazi war criminals’ to justice. Quite recently, another high profile Nazi war crimes suspect, Laszlo Csatary, who had fled to Canada after the war, died in a Hungarian hospital while awaiting his trial (see 'Nazi War Crimes Suspect Laszlo Csatary Dies', BBC News, 12 August 2013). He was previously sentenced to death in his absence in Czechoslovakia in 1948 for war crimes.

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Legally relevant facts

The Republic of Hungary decided not to seek Zentai’s surrender for prosecution for ‘murder’ (para. 39), but for the alleged commission of a ‘war crime’.

Art 2.5(a) of the Extradition Treaty states that extradition may be granted irrespective of when the relevant offence was committed, provided it was an offence in the Requesting State at time of acts or omissions constituting offence – Whether offence for which extradition sought must be offence in Requesting State at time of acts or omissions constituting offence (para. 28).

The offence of "war crime" for which Zentai's extradition was sought, was first enacted in 1945 and has since been re-enacted in the Hungarian Criminal Code in 1978 (para. 41).

It was not in dispute that the war crime offence, first created under Hungarian law in 1945 and re-enacted as S. 165 of the Criminal Code of the Republic of Hungary did not exist as an offence when Mr Balazs was killed. Nor was it in dispute that the offence of murder did exist under Hungarian law at that time (para. 8). 

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Core legal questions

  • The primary question in this appeal is whether the Minister committed a jurisdictional error by purporting to determine that the accused, Charles Zentai, is to be surrendered in circumstances in which a necessary condition for surrender had not been satisfied (para. 17)?

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Specific legal rules and provisions

  • Vienna Convention on the Law of Treaties.
  • Article 2.5(a) of the Treaty on Extradition between Australia and the Republic of Hungary. 
  • Articles s11 and s22 of the Australian Extradition Act.

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Court's holding and analysis

The Court held that the appeal should be dismissed.

In 1944, there was no offence of war crime under the Hungarian Criminal Code. Though. the offence of murder was codified in the Hungarian Criminal Code in that time, the Republic of Hungary chose not to seek Zentai’s surrender for prosecution for murder.

For the Minister of Home Affairs, limitations arise out of the Extradition Act 1988. Article 2.5(a) of the Treaty states that extradition may be granted irrespective of when the offence in relation to which extradition is sought was committed, provided that it was an offence in the Requesting State at the time the acts constituting it occurred (para. 39).

Since the offence of ‘war crime’ was not an offence in Hungary in 1944, the accused could not be extradited to Hungary for this crime.

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Further analysis

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Instruments cited

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Related cases

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Additional materials