Poland V. Sebastian Bielecki
| Jurisdiction | Scotland |
| Judge | Sheriff F.R. Crowe |
| Court | Sheriff Court |
| Date | 26 February 2010 |
| Published date | 02 March 2010 |
Court reference 2B712/09
IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH
UNDER THE EXTRADITION ACT 2003
POLAND v SEBASTIAN BIELECKI (d.o.b. 20/04/87 ) whose domicile of citation has been specified as 6/3 West Pilton Grove, Edinburgh
Act Mr. D Dickson and Mr. V Lunny Crown Office International Unit on behalf of the District Court of Legnica, Poland
Alt Mr. McCluskey Advocate instructed by Ms Schofield of Capital Defence Lawyers, Edinburgh
Edinburgh 26th February 2010
The Sheriff having resumed consideration of the request made under the provisions of the Extradition Act 2003 by the District Court of Legnica, Republic of Poland dated 4th November 2008 for the extradition of the said Sebastian Bielecki answers in the affirmative the question posed in subsection (1) of section 21 of the said 2003 Act, refuses the Devolution Minute and in terms of section 21 (3) of the said Act orders that the said Sebastian Bielecki be extradited to Poland conform to the warrant of even date.
NOTE
Introduction
[1] This case involves a European Arrest Warrant (an EAW) which was issued by the Polish authorities namely the District Court of Legnica in respect of the accused. The warrant was issued on 4th November 2008 and involved four cases containing a total of twelve charges of housebreaking, theft, robbery, vandalism, riding a bicycle while drunk, supplying a drug, possession of drugs and theft by opening a lockfast car. Extradition was opposed on the basis that overcrowding was systemic in Polish prisons and if returned to Poland to serve the sentences of imprisonment which had been imposed the accused's Article 3 rights would be violated. A further ground of opposition was in relation to the accused's Article 8 rights to respect for private and family life.
Procedural History
[2] The case first called at Edinburgh Sheriff Court on 26 June 2009. A Preliminary Hearing was fixed for 7 July and the full Extradition Hearing for 16 July 2009 and bail was refused. The accused confirmed that he was the person referred to in the warrant. A Devolution Minute was lodged on 7 July 2009 but no appearance has been entered by the Advocate General. Bail was applied for again but opposed and refused. The case was continued until 16 July to the Full Hearing.
[3]On 16 July the accused was represented by counsel for the first time and sought an adjournment until October to allow another criminal case to be disposed of and to allow the accused's solicitors to carry out enquiries. This was opposed and refused, however the Court adjourned the case to a notional hearing on 13 August and remanded the accused in custody.
[4] On 13 August the case called before me for the first time and I continued the case to a notional hearing on 23 September and refused bail. At this stage counsel indicated that the opposition to extradition was in principally respect of Polish prison conditions and various authorities were lodged in support of this line of challenge. Time was specifically sought to seek sanction to engage an expert witness who would be in a position to travel to Poland if necessary and provide a report on Polish prison conditions.
[5] On 23 September the case was adjourned to a preliminary hearing on 21 October and a full hearing on 4 November 2009 and the accused was again remanded in custody. On 4 November the case called before me again when the hearing commenced and was adjourned until 9 December. Bail was again applied for and refused. The hearing continued on 9 December and was adjourned part-heard until 17 December. Bail was opposed but granted.
[6] On 17 December evidence was led from the accused after which the Crown sought an adjournment to consult the Polish authorities. The case was adjourned until 13 January 2010. The accused's bail conditions were modified on that date but otherwise bail was continued. On 13 January a custody extradition case was dealt with first and there was insufficient time to proceed further, the Crown indicated they had been in touch with the Polish authorities and were seeking further information. On 29 January the Crown disclosed further information to the defence and the case was continued on joint motion until 4 February with the accused's bail being continued as both parties had additional enquiries to make.
[7] On 4 February 2010, Mr. Lunny appeared on behalf of the Lord Advocate and I heard submissions from parties before adjourning the proceedings to 26 February 2010 to consider the submissions and produce a written decision.
Procedure at the Extradition Hearing
[8] At the initial calling of the case on 26 June 2009 the accused accepted that he was the person referred to in the warrant and the procedures set out in section 8 had been complied with. Accordingly I was able to answer the question posed at section 7(2) of the 2003 Act in the affirmative and proceed to section 10.
[9] At the Hearing on 4 November I was directed by Mr. Dickson for the Lord Advocate to section B of the EAW which indicated that the accused had been convicted and sentenced in respect of various offences arising out of four separate sets of proceedings, all of which had taken place at the Regional Court in Glogów on different dates between November 2006 and October 2007.
[10] The first case in the warrant is Case No. II K 613/07. It involved eight separate offences for which a total sentence of 2 years 6 months' imprisonment had been imposed. It was submitted that section 65(3) of the 2003 Act applied as the offences had all occurred in Poland, the conduct involved was of a type which was criminal in Scotland and imprisonment in excess of four months' imprisonment had been imposed. The accused had in fact served 3 months 21 days of his sentence before being released but 2 years 2 months and 9 days remained outstanding.
[11] In respect of Case No. II 720/06 the accused had been convicted and sentenced to 10 months imprisonment. One of the offences involved trafficking in drugs which is an offence contained in the European framework list referred to at section E1 of the EAW. The certificate confirmed that the maximum sentence which could be imposed in Poland for this type of offence was at least 3 years' imprisonment and accordingly section 65(2) of the 2003 Act applied.
[12] Case No. II K 164/07 involved a charge of theft by opening a lockfast vehicle for which a sentence of 1 year 4 months' imprisonment was imposed, one day of which had been served. The final case was Case No. II 306/07 which involved a charge of robbery and in respect of which a sentence of 1 year's imprisonment had been imposed.
It was submitted that all of those offences complied with the dual criminality condition and since sentences in excess of four months' imprisonment had been imposed section 65(3) of the 2003 Act applied.
[13] There was agreement that all of the offences in the warrants were extradition offences and so I answered the question posed at section 10(2) of the 2003 Act in the affirmative and in terms of section 10(4) moved on to consider whether there were any bars to extradition under section 11 of the 2003 Act.
[14] It was accepted on behalf of the accused that there were no bars to extradition and accordingly in terms of section 11(4) I moved on to consider section 20 of the 2003 Act. In this connection Mr. Dickson produced a letter from Judge Treter of the District Court in Legnica (the signatory of the EAW) that the accused had been present in each of the cases referred to in the EAW.
[15] Mr. McCluskey produced a letter from Judge Treter dated 23 October 2009 which indicated that in Case II K 613/07 the court had imposed an unconditional sentence of imprisonment whereas in the three remaining cases the sentences of imprisonment were suspended. The letter narrated that Glogów Provincial Court had subsequently ordered the suspended sentences to be served.
[16] At first reading the letters seemed contradictory but a fair reading of both indicated that the accused did not qualify for obligatory legal representation but was entitled to the services of a public defender however he had made no application for such representation.
[17] The earlier letter indicated that the accused pled guilty to most of the offences excluding certain specific ones. After some discussion with parties I determined that taken together the letters and the EAW indicated that the accused had been convicted of all of the offences contained in the warrant, he having pled guilty to a number of the charges and had been found guilty of the others. It was accepted that the accused had been present at both trials. He had been sentenced but apparently failed to appear at a later date to serve the sentences. After considering the point further I answered the question posed at section 20(2) of the 2003 Act in the affirmative on 17 December 2009 and moved on to consider section 21 of the 2003 Act and whether extradition would be compatible with the accused's Convention Rights.
[18] Counsel for the accused said that the argument presented in the present case was essentially the same which had been deployed in the case of Poland v Kropiwnicki
http://www.scotcourts.gov.uk/opinions2B1367.html
in which I had issued a judgment on 16 December 2009. Unlike that case however evidence was to be adduced in support of the accused's position and accordingly evidence was heard from the accused and his fiancée on 17 December 2009.
[19] In relation to the evidence I found the following facts admitted or proved:-
(1) The accused is 22 years of age and was born in Poland. He moved to Scotland in November 2007 to stay with his parents who resided here and he obtained employment.
(2) As an unemployed teenager in Poland the accused began abusing amphetamine and alcohol and had regularly been in trouble with the authorities as was shown in the EAW.
(3) Since moving to Scotland the accused had met a Allanah Taylor and was living with her and her child. He had been in a...
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