David Kechedzhiev v Gdansk Regional Court, Poland
| Jurisdiction | England & Wales |
| Judge | Lady Justice Carr DBE,Picken J |
| Judgment Date | 13 November 2020 |
| Neutral Citation | [2020] EWHC 3021 (Admin) |
| Docket Number | Case No: CO/4960/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2020 |
[2020] EWHC 3021 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON Lady Justice Carr DBE
and
THE HON Mr Justice Picken
Case No: CO/4960/2011
Gemma Rose (instructed by the National Legal Service) for the Claimant
Tom Hoskins (instructed by the Crown Prosecution Service) for the Defendant
Hearing date: 4 November 2020
Approved Judgment
Introduction
This is an appeal pursuant to s. 26 of the Extradition Act 2003 (‘the Act’) by the Appellant, a Bulgarian national, born on 2 May 1991 and so now 29 years old, against the decision of District Judge Jonathan Radway (‘the District Judge’) sitting in the Westminster Magistrates' Court dated 12 December 2019.
The Appellant is sought by the Regional Court in Gdansk in Poland for the prosecution of six offences said to have been committed by him between August 2014 and October 2016 in Poland. An ‘accusation’ European Arrest Warrant (the ‘EAW’) was issued on 9 April 2019 and certified by the National Crime Agency (‘NCA’) on 8 August 2019. Poland is a Category 1 territory for the purpose of the Act and so Part 1 of the Act applies.
The District Judge held that:
i) All six alleged offences were extradition offences in accordance with s. 10 of the Act;
ii) Extradition would be compatible with the Appellant's human rights under Article 8 of the European Convention of Human Rights (‘Article 8’) (‘ECHR’) and that extradition would not be disproportionate.
He directed the Appellant's extradition pursuant to s. 21A of the Act 2003.
Limited leave to appeal was granted by Steyn J on 18 February 2020 in respect of a challenge to the District Judge's findings that the allegations were extradition offences for the purpose of s.10 of the Act (‘Ground 1’) but leave was otherwise refused. The Appellant renews his application for leave to challenge the District Judge's findings on Article 8 and proportionality on the basis of new material, namely the Appellant's partner's pregnancy (which post-dates the hearing and decision below) (‘Ground 2’).
On 25 September 2020 the Appellant applied to vary his grounds of appeal to add two further grounds:
i) That the District Judge was wrong to conclude that the warrant was validly issued by a Judicial Authority meeting the requirements of impartiality and independence required by the Framework Decision (‘Ground 3’);
ii) That extradition is not compatible with the Appellant's rights under Article 6 of the ECHR given the political and jurisprudential evolution in Poland since the decision in Lis v Poland [2018] EWHC 2848 (Admin) (‘Ground 4’).
The application to vary was (realistically) unopposed. Permission to amend was granted. However, given that the issues raised in Grounds 3 and 4 are due to be considered by the Divisional Court on 15 December 2020 (in Wozniak v Poland [2020] EWHC 1459 (Admin) and Chlabicz v Poland CO2976/2019), a stay on those two grounds was imposed (pending the outcome of those appeals). Accordingly, only Grounds 1 and 2 fall for present consideration.
The relevant facts in summary
The Appellant is accused of six crimes, allegedly committed in Poland in the period August 2014 to October 2016. According to the Gdansk Public Prosecution Service, he was first detained on 27 October 2016 in Poland. He was required to notify the Polish authorities of each change of address, a requirement which he fulfilled until 24 April 2017, and to report weekly to the police, a requirement which he fulfilled until 26 May 2017. He was also prohibited from leaving Poland.
The last contact with the Appellant by the Polish authorities was on 29 May 2017, when he was summoned to appear at the prosecution office on 2 June 2017. He failed to attend as required. On 27 September 2017 a search order was made and the decision to press charges was issued.
By then the Appellant was in Germany, where he had fled in the week after he last reported to police (on 26 May 2017). He was joined in Germany by his wife, Zlatka Rumenova (‘Ms Rumenova’), also a Bulgarian national and whom he had met in Poland in 2014 (before she was committed to prison in 2016 for some two and a half years).
In December 2018 the Appellant and his wife entered the United Kingdom from Germany. They went to live in Leicester and found work in a factory. On 9 July 2019 their first child was born.
On 22 November 2018 a request for the issue of the EAW was filed and, as set out above, it was issued on 9 April 2019 and certified by the NCA on 8 August 2019.
The EAW
The EAW is in respect of the following offences, namely that the Appellant:
“I. Between November 2015 and 3 May 2016 in Leborski district, Poland, in order to achieve financial benefit, facilitated prostitution by driving two women to and from a place where they provided sexual services;
II. Between September and October 2016 in Leborski district, Poland, in order to achieve financial benefit, facilitated prostitution by driving a woman to and from a place where they provided sexual services and indicated the pricelist of the sexual services;
III. Between October 2015 and February 2016 in Leborski district, Poland, in order to achieve financial benefit, facilitated prostitution by driving a woman to and from a place where they provided sexual services;
IV. Prior to 1 September 2015 in Leborski district, in order to achieve financial benefit, facilitated prostitution by driving a woman to and from a venue where she provided sexual services and acted on behalf of a third party, Mette Demirov (who forced women into prostitution), by supervising the prostitution and collecting monies in his absence;
V. On 15 September 2016 presented a forged drivers' licence purportedly issued by Bulgarian authorities to the Police station in Zary, Poland;
VI. On 5 August 2014 presented a forged drivers' licence purportedly issued by Bulgarian authorities to the police station in Staszów, Poland following a road traffic event.”
The maximum sentence for offences I-III and V-VI is 5 years' imprisonment. Offence IV carries a maximum sentence of 10 years' imprisonment.
The Appellant was arrested at his work address in Leicester on 26 September 2019. He was brought before Westminster Magistrates' Court for his first appearance on 27 September 2019. There he was represented by the duty solicitor and granted conditional bail by District Judge Brennan, the conditions including a pre-release security of £3000. Directions were made for the service of a proof of evidence, statement of issues and for an application for legal aid to be made.
The judgment below
At the full hearing on 21 November 2019 at Westminster Magistrates' Court the Appellant made an application to adjourn the proceedings as he had not been able to secure legal representation. This was refused by the District Judge. The Appellant and his wife then both gave evidence. Judgment was reserved and handed down on 12 December 2019.
The District Judge recorded the issues before him as follows:
a. whether the allegations were extradition offences in accordance with s.10 of the Act); and
b. interference with the Appellant's right to a private life under Article 8.
The District Judge made a number of findings on the evidence before him. Significantly for present purposes, he found the Appellant to be a fugitive. He considered the relevant authorities, including Wisniewski and other v Poland [2016] EWHC 386 (Admin) and De Zorzi v France [2019] EWHC 2062 (Admin), and concluded that the Appellant had known he was instructed not to leave Poland, that he had to report his address to the police and to attend the police station in person each week. He had made a conscious decision not to do so when he left for Germany. There is (rightly) no challenge to this finding.
As for s. 10 of the Act, the District Judge decided that the charges would constitute offences in England and Wales. On Charges V and VI, so much was obvious. In relation to Charges I-IV, the relevant equivalent statutory provision in English law was s. 53 of the Sexual Offences Act 2003, namely controlling prostitution for gain. The District Judge recognised that such an offence requires an “intention to control”. Because it was uncertain whether the offences in Poland required such mens rea, he proceeded on the basis that an intention to control had to be impelled from the alleged conduct described in the EAW (or be the only reasonable inference (referring to Zak v Poland [2008] EWHC 470 (Admin) (“ Zak”) at [16]; Assange v Sweden [2011] EWHC 2849 (Admin) at [57]; Cleveland v Government of the USA [2019] EWHC 619 (Admin) (“ Cleveland”) at [53] to [64])). He concluded that each of Charges I-IV were also extradition offences for the purposes of s.10 of the Act.
In reaching this conclusion, the District Judge commented that, in relation to Charge IV, the first in time, the “inevitable inference” was that the Appellant was intentionally controlling the prostitute. In relation to Charge II, the District Judge described it as being “almost impossible to conceive how indicating a price list for sexual services could be inadvertent or have an innocent explanation; controlling her by driving her and indicating prices, if true, can only have been with the intent necessary for the offence in question”.
As for Charges I and III, he said this:
“Charges I and III both refer to ‘facilitating’ prostitution, but the conduct is limited to driving Aleksandra, Marlena and Agnieszka to and from the place where they provided the sexual service. If these were the only charges, I would hesitate to conclude to the necessary standard they were extradition offences because it...
To continue reading
Request your trial