Maciej Mariusz Olenski v Regional Court of Krosno, Poland

JurisdictionEngland & Wales
JudgeMr Justice Sweeney
Judgment Date08 February 2016
Neutral Citation[2016] EWHC 196 (Admin)
Docket NumberCase No: CO/535/2015
CourtQueen's Bench Division (Administrative Court)
Date08 February 2016

[2016] EWHC 196 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

In the matter of an appeal under section 26 of the Extradition Act 2003

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr Justice Sweeney

Case No: CO/535/2015

Between:
Maciej Mariusz Olenski
Appellant
and
Regional Court of Krosno, Poland
Respondent

David Williams (instructed by Kaim Todner for the Appellant

Brian Gibbins (instructed by CPS Extradition Unit) for the Respondent

Hearing dates: 25 March 2015

Mr Justice Sweeney

Introduction

1

The Appellant, who is now aged 40, appeals under s.26 of the Extradition Act 2003 ("the EA") against the decision of District Judge Grant, made in the Westminster Magistrates Court on 29 January 2015, to order his extradition to Poland (a Category 1 territory) pursuant to a conviction European Arrest Warrant ("EAW") issued by the Regional Court of Krosno on 31 March 2009, and certified by the National Crime Agency ("NCA") on 1 October 2014, to serve approximately 9 months of an original sentence of 1 year 3 months' imprisonment which became final on 28 January 2004 in respect of three offences — all of which were committed in Ustrzyki Dolne in April / May 2003.

2

Taking them in chronological order, the offences were as follows:

i) Compelling another person to conduct himself in a specified manner, contrary to Article 191 of the Penal Code, on 11 April 2003 — when he, acting with another, used force (kicking and punching) and the threat of further force to compel Marcin Jaworski to give them money for the purchase of alcoholic drinks.

ii) Infringing privacy, contrary to Article 193 of the Penal Code, on the night of 23 / 24 May 2003 — when he and another broke a window and got into the house of Kazimiera Kuzinska.

iii) Battery, contrary to Article 158 of the Penal Code, on the night of 25 / 26 May 2003 — when, acting together with persons unknown, he punched and kicked the victim Krzysztof Kuzinski (the son of Kazimiera Kuzinska) and then threw him into a river and stood on his back to hold his head under the water. In consequence the victim suffered a number of injuries which resulted in an impairment to his health lasting more than 7 days and exposing him to an immediate danger of the loss of his life or grievous bodily harm.

3

In this jurisdiction those offences equate, respectively, to robbery, criminal damage, and at least assault occasioning actual bodily harm.

4

There were two original grounds of appeal, namely that the District Judge erred in finding that:

i) The Appellant's extradition would not be oppressive because of the passage of time ( s.14 EA).

ii) Extradition would not be disproportionate with the Appellant's Article 8 rights ( s.21 EA).

Background

5

The broad history in relation to the underlying Polish proceedings is as follows:

i) The Appellant was arrested and held in custody from 25 June 2003 to 19 November 2003.

ii) On 25 June 2003 the Appellant was informed of his obligations to appear before the relevant authorities when summonsed and to notify the court of any change of address, and signed a document confirming that he had been so informed.

iii) At some point the Appellant pleaded guilty to the offence of battery.

iv) On 19 November 2003 the Appellant's trial in relation to the other offences began in the District Court of Lesko and he gave evidence. He was notified of further hearings to be held on 4 & 23 December 2003 and 12 January 2004 and was then released — in the knowledge that the Court would judge his criminal responsibility.

v) The Appellant thereafter stopped living at home and failed to attend all the subsequent hearings.

vi) On 20 January 2004, he was convicted in his absence and sentenced to 1 year 3 months' imprisonment.

vii) The Appellant did not appeal and thus the judgment against him became final on 28 January 2004 — with, given the time served on remand, approximately 9 months' imprisonment remaining to be served.

viii) On 18 June 2004 the Appellant failed to answer a summons to Sanok Prison to serve his sentence.

ix) On several occasions the District Court requested the local police to bring the Appellant before it, but efforts to find the Appellant were unsuccessful — since he had left his address and the address where he was residing was not known.

x) On 20 February 2009, a national arrest warrant and a search order were issued by the District Court of Lesko in relation to him.

xi) As indicated above, the EAW was issued on 31 March 2009. It was translated into English on 15 April 2009. A diffusion notice was sent by Interpol Warsaw to the NCA on 23 September 2014 — after which checks revealed that the Appellant might be present in the UK. Hence the EAW was certified on 1 October 2014.

6

The Appellant was arrested in Bradford on 7 October 2014. The initial hearing took place the following day, when the Appellant was remanded in custody. In a letter dated 14 November 2014 (signed by Judge Krysa) the Respondent, in answer to some sixteen questions, provided evidence as to the underlying Polish proceedings — which included the erroneous assertion that the Appellant had been remanded in custody from 25 September 2003 to 19 November 2003 (i.e. 56 days) and that the remaining sentence to be served was thus 1 year, 1 month and four days. That was corrected in further evidence provided by the Respondent in a letter dated 8 December 2014 (and also signed by Judge Krysa) — which indicated (as recorded in [4] above) that the Appellant had actually been remanded in custody from 25 June 2003 to 19 November 2003, and that on 25 November 2014 the District Court of Lesko had ordered that the whole of that period would count towards the service of his sentence. A copy of the Court Order, signed by Judge Lukasik on 8 December 2014, made clear that the decision was final and binding as of 3 December 2014.

7

The full hearing, during which the Appellant gave evidence, took place on 29 January 2015. Two issues were raised on the Appellant's behalf, namely the passage of time and Article 8 of the ECHR.

8

In his proof of evidence, which served as his evidence in chief, the Appellant asserted that he had been in custody from June 2003, throughout his trial, and when sentenced on 20 January 2004, and that he had remained in custody until April 2004 — when he had been told that he had completed his sentence and had been released. Thereafter, he said, he had gone home for about two weeks and had then been offered a job in Bradford. In the result, he had come to this country in April / May 2004 and had been here ever since — obtaining a National Insurance number in 2005. His wife and teenage children lived in Italy. During the course of cross-examination, however, the Appellant accepted that on 25 June 2003 he had been informed of his obligations to attend court and to notify any change of address and that he had been released from custody in the winter of 2003/4 (as opposed to April 2004), and that his release could have been in November 2003 (as alleged by the Respondent) or January 2004.

9

As to the passage of time, the District Judge found the Appellant to be an unreliable witness as to both time and facts. In view of the content of the information provided by the Respondent on 14 November 2014 and 8 December 2014 (above) he concluded that the Appellant had been wrong to say that he was released from custody in April 2004 and that he believed that he had served his sentence in full. Rather, he found that the Appellant had been remanded in custody for a time during the Polish proceedings and that he had then been released prior to the completion of the proceedings — but with full knowledge of the subsequent dates upon which he was required to attend court. Against that background, the District Judge concluded that the Appellant was a fugitive, and that therefore there was no merit in his reliance on the passage of time.

10

As to Article 8, having referred to the leading cases of Norris v Government of the United States of America (No.2) [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC25, and to the principles derived from them, the District Judge then carried out a balancing exercise. He weighed, on the one hand, the fact that the Appellant had been living in this country for 11 years; that the Appellant had established a working life here and occasionally sent money to his wife and two children in Italy; the unexplained delay in the issue of both the domestic warrant and the EAW (albeit tempered by the fact that the Appellant had left the jurisdiction, his whereabouts were unknown, and his nearest family lived in Italy); and the fact that there was not much more time to serve (and even less if the Appellant had to wait for any appeal to be determined). The District Judge then weighed, on the other hand, the fact that the first and third offences were by no means trivial, and the importance of this country complying with its international obligations. In the result, he concluded that extradition would be proportionate with the Article 8 rights of the Appellant and his immediate family.

The correct approach

11

At the appeal hearing there was considerable argument as to the correct approach on an appeal under s.26 of the EA, and in particular as to the correctness or otherwise of the approach to Article 8 issues indicated in Belbin v The Regional Court of Lille, France [2015] EWHC 149 (Admin). On behalf of the Appellant, Mr Williams argued that, against the background of the court's powers on such an appeal, as provided in s.27 of the EA, the correct approach was that identified by Lord...

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1 cases
  • Korczynski v Regional Court in Bydgoszcz (Poland)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 19 September 2018
    ...are La Torre v Italy [2007] EWHC 1370 (Admin) para.35; Zielinski v District Court Legnica [2007] EWHC 2645 (Admin); and Olenski v Regional Court of Krosno, Poland [2016] EWHC 196 (Admin) para.28. They emphasise that the judicial authority's explained delay does not compel the conclusion ......

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