On 18 June 2020, R. T., a Russian national of Chechen origin was arrested at the Slovene-Italian border by the Slovene authorities. He was driving a van that was stolen the previous day in Austria.

The investigation judge obtained two European Arrest Warrants (EAWs). In the first from 4 May 2020, Hungary sought the return of the defendant in order to conduct criminal proceedings for the crime of human smuggling, punishable by a maximum of 8 years of imprisonment under the 2012 Hungarian Criminal Code. On 17 January 2020, R. T. was said to have been driving a vehicle with 7 Syrian nationals, when he was stopped by the Hungarian Police. He nevertheless managed to evade the police and escape. The second EAW from 19 June 2020, was issued by Austria for the theft of the van the day before R. T. was arrested in Slovenia. The crime was punishable by maximum of 3 years of imprisonment.  

Heard before the investigation judge a day after the arrest, R. T. expressed his wish to be returned to Austria, since he lived there, had his family there and since he heard that in Hungary has a bad reputation concerning the attitude towards Chechens. On 2 July 2020, two weeks after his arrest, he expressed the wish to apply for asylum in Slovenia and did so on 23 July 2020.  He therefore maintained that before any return decision is taken, the Slovene authorities must first decide on his asylum claim.

In the proceedings before the investigation judge, it turned out that the defendant lived with a friend in Lienz (SW Austria), whereas his family was in Vienna. He was nevertheless in regular contact with his family: wife and two small children. His attorney argued his family could not visit him in Hungary due to high costs of travel to Hungary, that his family was unable to bear. In addition, the attorney expressed concerns over fairness and impartiality of proceedings in Hungary due to his client’s ethnicity and his status of asylum seeker and opposed the return on the basis of Article 10, point 8 of the Cooperation in Criminal Matters with the Member States of the European Union Act (CCMMSEUA), which literally implements Recital 12 of the Framework Decision, prohibiting the return if a person's position in the criminal proceedings may be substantially prejudiced on the grounds of his/her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation.

As a result, the investigation judge requested the Hungarian Ministry of Justice under Article 15 (2) of the Framework Decision to clarify whether such risk of discrimination indeed exists in Hungary. The Ministry of Justice replied that Hungary, as a member of the EU, bound by the Charter and by the ECHR, respects the principle of non-discrimination and that in any event, the defendant has the right to turn to the ECtHR. The investigation judge also consulted the 2019 UN Committee on the Elimination of Racial Discrimination Report for Hungary.

On the basis of the information above, the District Court, to whom the casefile was referred after the investigation was finished, decided that the defendant should be returned to Hungary and not to Austria. The court found that there are no reasons against the return. According to the court, the alleged (racial, ethnic) discrimination was confirmed neither by the reply of the Ministry of Justice nor by the report of the UN Committee. The claim for asylum was regarded as being unable to bar the transfer to Hungary, since the Dublin Regulation enables that the asylum proceedings are underway even if the asylum seeker is situated in the territory of another MS. With respect to conflicting EAWs, the court decided that two circumstances from Article 16(1) of the Framework Decision, namely the seriousness of the offence and the date of issue of the EAW, demand the return to Hungary and that personal circumstances (the fact that the defendant’s family lives in Austria) do not carry enough weight, taking into account the prescribed criteria in Article 16(1), to affect the decision of the court.

Upon appeal, the High Court agreed with the District court. The defendant was transferred to Hungary before the end of his asylum procedure