THE final chapter in the long-running legal battle to extradite 90-year-old
Charles Zentai to Hungary for his alleged involvement in
war crimes has begun in the High Court.
Australia's Minister for Home Affairs is appealing a ruling of the Full Bench
of the Federal Court, which last year found it was not open
to the government to make an order to extradite Mr Zentai
because the offence “war crime” did not exist in Hungarian
law in November 1944.
That was when Mr Zentai is alleged with two others to have assaulted a young
Jewish man and thrown his body in the Danube River in Hungary.
The minister is appealing on the grounds
the court made an error by ruling that the extradition may
only take place where the specific offence for which extradition
is sought existed under Hungarian law at the time.
Stephen Lloyd SC, for the minister,
said the government made inquiries in Hungary and determined
that Mr Zentai's alleged offence would have constituted a
crime - specifically murder - which was recognised by Hungarian
law in 1944.
Mr Zentai's son Ernie Steiner, who attended the High Court today, said his father
was frail.
“He is very anxious and stressed. We have had seven years of this process and
would like a result and hopefully he can live out the end
of his days in peace,” Mr Steiner said outside court.
Much of the morning's legal argument
turned on whether a principle of “double criminality” applied
to the case, which would require a comparable crime in Australian
law.
Justice William Gummow raised concerns
that the extradition treaty enacted between Hungary and Australia
in 1995 was silent on comparisons between how the crime was
punished.
“This offence of murder, if it was
an offence at the end of 1944 by Mr Zentai when he was in
the Hungarian army, would have been punishable - if at all
- by a military tribunal, would it not?” Justice Gummow asked.
“When we are talking about double
criminality, we should not get ourselves into a box - if
in 1944 a service person murdered somebody, what is the double
criminality under our law? I don't think it is just the state
law of murder in the particular state it happened?” he asked.
Justice Gummow said he believed insufficient
legal attention was being given to the circumstances in Australia
in 1944.
“We were at war too,” he said.
The case has been lodged in the name
of former home affairs minister Brendan O'Connor, who has
since been replaced as minister by Jason Clare.
theaustralian.com.au
|