Mr Rafal Dziel v District Court in Bydgoszcz, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 25 February 2019 |
| Neutral Citation | [2019] EWHC 351 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5807/2017 |
| Date | 25 February 2019 |
[2019] EWHC 351 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/5807/2017
Mr Jonathan Swain (instructed by SONN MACMILLAN WALKER SOLICITORS) for the Appellant
Ms Catherine Brown (instructed by CPS EXTRADITION UNIT) for the Defendant
Hearing dates: 13 FEBRUARY 2019
Approved Judgment
This is an appeal against the order of District Judge Goozee, at Westminster Magistrates' Court, on 11 December 2017. He ordered Mr Dziel's extradition to Poland on a conviction EAW to serve all but one day of the eight months' imprisonment imposed for two offences of assault committed in November 2013. The issue on the appeal, which I gave leave to argue, is whether Mr Dziel, for the purpose of s20 of the Extradition Act 2003, was “deliberately absent” from his trial, which took place on 21 January 2016. He contended that he did not actually receive notice of the trial date and place, nor more particularly was he actually informed that, were he not to attend, he could be tried in his absence.
He left Poland in February 2014, under an obligation to inform the Polish authorities of any changes of address; he breached this obligation. In February 2014, there was no provision in Polish criminal procedure for a trial to take place in his absence. That was not introduced until July 2015. The EAW makes no reference to a retrial on his return to Poland. If he was not deliberately absent, he must be discharged. If deliberately absent, his appeal must be dismissed. Notwithstanding the number of Polish extradition cases, this issue arising from the change in the law on trials in the absence of the defendant appears not to have arisen before.
The case has taken some time to come on because, like so many others, it was stayed behind the Divisional Court decision in Lis and Others v Regional Court in Warsaw and Others [2018] EWHC 2848 (Admin), in relation to article 6 ECHR and changes to the law governing the Polish judiciary.
The statutory provisions
Section 20 of the 2003 Act provides:
“(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.”
This case turns on s20, but Article 4a of the Framework Decision, so far as is relevant and the two cross-fertilise at times, provides that:
“Article 4a
Decisions rendered following a trial at which the person did not appear in person.
1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:
(a) in due time:
(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;
And
(ii) was informed that a decision may be handed down if he or she does not appear for the trial;”
The facts
I can take these from the EAW, which states:
“Rafal Dziel knew about the pending criminal proceedings against him. On November 16, 2013 he was detained in relation with the criminal offences committed by him and on November 17, 2013 he gave explanations. Then also, he was informed about his obligation as a suspect to appear whenever requested during the course of criminal proceeding and notify the authorities conducting the proceedings of any change of address or change of stay exceeding 7 days. He was informed, that in case of unjustified failure to appear he may be detained and forcibly brought. It was stressed, that in case he stays abroad, he shall be required to indicate an address for service in the country, and in case he does not do that, any letter sent to the last known address in the country, or when there is not such address, submitted to the case file, shall be accepted as duly delivered to him. He was also informed, that unless he indicates his new address and changes his place of residence or does not stay at the given address, then the letter sent to this address during the course of proceedings shall be accepted as duly delivered.
On June 18, 2014 an indictment against Rafal Dziel was brought to the Regional Court in Bydgoszcz, in which he was charged with committing the crimes described above. Owing to the fact that the person did not appear in person on the fixed dates of the trials, the Regional Court in Bydgoszcz with the decision dated October 8, 2014 in the case files reference number III K 301/14, applied against him preventative measures in the form of pre-trial detention for the period of 3 months from the date of detention and ordered the arrest warrant search. Then with the decision of July 16, 2015 the Regional Court in Bydgoszcz in the case files reference number III K 84/15 suspended the proceedings in the case due to the long-term barrier preventing form conducting proceedings.”
I pause there to note that it is clear that Mr Dziel did not comply with his obligation to attend his trial, having been notified of the date in the manner he had been told he would be, having been warned that failure to attend could lead to his detention, but not that it could lead to a trial in his absence, as that was not then possible under Polish law. The EAW then continued:
“Next the Regional Court in Bydgoszcz with the decision dated December 10, 2015 in the case files reference number III K 84/15, resumed the suspended proceedings, waived the applied against Rafal Dziel preliminary custody and abolished the issued for him arrest warrant. The grounds for this decision was the entry into force on July 1, 2015 the amendment of the provision of Article 374 paragraph 1 of the Code of Criminal Procedure, which enabled to conduct the criminal proceedings in the absence of the accused.
Once again Rafal Dziel was sent to the indicate by him at the stage of preparatory proceeding residence address – Bydgoszcz, 90 Nakielska Street – advised on November 16, 2015 and November 24, 2015, and then due to the failure of its reception by the addressee it was returned to the Regional Court in Bydgoszcz. Under article 133 of the Code Criminal
Proceedings, it was recognized, that the indictment had been delivered effectively to the person as well as the summons for a hearing.
The accused did not appear in person at the trial January 21, 2016 and that is why it was held in his absence and a judgement of conviction was imposed on him, which was sent to the mentioned address. That correspondence was not accepted by Rafal Dziel either and after having been notified on February 5 and 15, 2016, it was returned to the Court. The said judgement became final as of the end of March 1, 2016.
The sentence was also sent to this address a notice to appear on March 29, 2016 at the Bydgoszcz Custody Suite in order to serve there the sentence passed against him. The correspondence was not accepted by the addressee either.”
The EAW does not suggest that Mr Dziel would have any retrial or appeal rights on his extradition.
The District Judge found as follows, dealing first with whether Mr Dziel was a fugitive, and deliberately absenting himself from the proceedings, which obviously are reflected later in his conclusions on s20:
“34. By his own admission in evidence I find the RP knew about the pending court proceedings in respect of the assault charges subject to the EAW. When he left Poland for the UK in February 2014 he did not think about his obligations to keep the police and prosecution informed of any new address abroad. He also had just been arrested on 10 February 2014 for a further theft offence and by 28 February 2014 he had left Poland. In his own words in answer to questions in cross-examination, he said “I left without letting them know. I was just hoping they would let me know. I hoped it would not happen”. In these circumstances, I find that it was a deliberate act by the RP to leave Poland in order to avoid his problems there. He was naïve in believing his Probation Officer will have kept the authorities informed. In any event, he accepted that the Probation Officer was not appointed until 2015 after he had been convicted of the theft offence. He made assumptions his Probation Officer will have kept the authorities informed but he accepted he never made specific enquiry about the proceedings for the assault. He deliberately absented himself from any potential court hearings and any correspondence from the courts. I am satisfied so that I am sure that the RP is a fugitive.
“35. I am satisfied on the evidence that the RP was unaware of the court hearing dates in June 2014 and December 2015 when the proceedings were reinstated and the subsequent hearing on January 21 2016. He did not attend any of the hearings. I am satisfied on the further information from the JA that summonses were served correctly at his home address in Bydgoszcz. Indeed there is evidence that the summons sent on 3 July 2014 was indeed collected by an adult from his home address. However, I am satisfied that despite the RP's wish to leave Poland and find work and accommodation for his...
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