MOSCOW, August 15 – RAPSI, Ingrid Burke. The High Court of Australia ruled Wednesday against the extradition of accused Nazi war criminal Charles Zentai to Hungary, where he is sought by prosecutors on war crimes charges stemming from the fatal beating of a Jewish teenager in 1944.

The basis of the decision was the court’s finding in order to qualify as an extraditable offense, an act or omission must have existed as a legal offense in the state requesting extradition at the time of commission.

The Hungarian government first requested Zentai’s extradition on March 23, 2005. A warrant for his arrest, which had been issued on March 3, 2005, levied war crimes charges against the defendant in connection with the 1944 beating death of Peter Balasz. Zentai, then a 23-year-old soldier with the pro-Nazi Hungarian Royal Army, had purportedly identified Balasz as a Jew despite the teen’s refusal to wear the at-the-time mandatory yellow star. Upon doing so, Zentai is alleged to have dragged Balasz to an army post, where he and two other soldiers beat the teenager to death. Afterward, Zentai is said to have assisted in weighing down the corpse prior to disposing of it in the Danube.

In concluding that the power of Australia’s Minister for Home Affairs is limited in scope from compliance with this particular extradition request, the court reasoned that one cannot be extradited for a legal offense that was not yet in existence at the time the act or omission in question was committed.

At the time of Balasz’s death, Hungarian law lacked any criminal offense adequately connected with the commission of war crimes. The country’s first war crimes legislation was enacted in 1945, and the offense was codified in Hungary’s Criminal Code in 1978. The retroactively enforceable law applies to: “A person who seriously violated international legal rules applicable to war in respect of the treatment of the population of the occupied territories or prisoners of war, or treated the population of the reannexed territories barbarously, misusing the power granted to him, or who was an instigator, perpetrator or accomplice of the unlawful execution or torture of persons either in Hungary or abroad." Conviction can lead to a sentence of life imprisonment.

The court made clear its stance that irrespective of the Hungarian Criminal Code’s wording, the law’s retroactive applicability cannot save it from the requirement that the offense must have existed at the time of commission.

The decision maintained that the retroactive imposition of criminal liability is bad policy, citing numerous examples of domestic and international law in so doing.

The decision then referenced the language in Australia’s extradition treaty with Hungary, which holds that: "extradition may be granted ... irrespective of when the offence in relation to which extradition is sought was committed, provided that the offence in relation to which extradition is sought was an offence in the Requesting State at the time of the acts or omissions constituting the offence." The court interpreted this provision as clearly excluding the imposition of retroactively applicable criminal offenses.

The present extradition proceedings have been ongoing against Zentai since his extradition request was issued. On July 8, 2005, a magistrate issued an arrest warrant for the defendant on the basis of Hungary’s request. Zentai was arrested and promptly granted bail. On August 20, 2008, another magistrate rendered the decision that the defendant could be extradited to Hungary. Zentai first challenged the authority of a state magistrate to render such a decision, but this challenge was unsuccessful both in the first instance and on appeal. Zentai then challenged the decision itself. This appeal, along with the scope of the Minister for Home Affairs’ authority to comply with such a request, were accepted by the High Court, leading to the present decision.