Robert Wozniak v The Circuit Court in Gniezno, Poland
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp, P |
| Judgment Date | 23 September 2021 |
| Neutral Citation | [2021] EWHC 2557 (Admin) |
| Docket Number | Case Nos: CO/4299/2019 and CO/4976/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2557 (Admin)
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Mr Justice Julian Knowles
Case Nos: CO/4299/2019 and CO/4976/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Clare Montgomery QC and Émilie Pottle for Mr Wozniak (instructed by J.D Spicer Zeb Solicitors)
Clare Montgomery QC and Saoirse Townshend for Mr Chlabicz (instructed by Lawrence and Co Solicitors)
Helen Malcolm QC and Alexander dos Santos (instructed by the CPS) for the Respondents
Hearing dates: 18 May 2021
Approved Judgment
Introduction
This is the judgment of the Court to which we have both contributed.
These two extradition appeals have been listed together because they raise common issues about the impact on extradition from the UK to Poland of legislative developments in Poland since 2015 affecting its judiciary. Poland is a Category 1 territory for the purposes of the Extradition Act 2003 ( EA 2003). Both Appellants were arrested before 11pm on 31 December 2020 and so the EA 2003 in its unamended form and the Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states of the European Union (the EAW Framework Decision) continue to apply: see Zabolotnyi v The Mateszalka District Court, Hungary [2021] 1 WLR 2569, [2]–[3]; R (Polakowski) v Westminster Magistrates' Court [2021] 1 WLR 2521, [19]–[24], [32].
Robert Wozniak
The extradition of the Appellant Robert Wozniak (RW) is sought so he can serve a sentence of eight months and 28 days of the nine-month sentence that was imposed on him. The EAW in his case was issued on 13 February 2019 and certified by the NCA under s 1 of the EA 2003 on 21 August 2019. He was arrested on 4 September 2019. The EAW is based upon a default judgment of the District Court in Gniezno (the Respondent to his appeal) dated 8 March 2016. The particulars of the offence set out in the EAW allege that he caused damage to a door using a ladder in January 2014, the offence being committed within five years of having served at least six months for a similar offence.
RW's extradition was ordered by a district judge on 30 October 2019. RW lodged an appeal relying on Article 8 of the European Convention on Human Rights (the ECHR/the Convention). He made an application to amend his grounds of appeal to argue that the Respondent is no longer a judicial authority within the meaning of Article 6(1) of the EAW Framework Decision because of the legislative changes in Poland, and thus that his EAW was therefore not a valid Part 1 warrant pursuant to s 2 of the EA 2003, which requires such warrants to have been issued by a judicial authority.
RW was refused permission by Thornton J on the Article 8 ground on 12 March 2020. He was granted permission to appeal by Fordham J on 3 June 2020 on the s 2 ground.
RW is also subject to a second EAW, for which extradition was ordered on 18 March 2021. This is a mixed accusation and conviction warrant which was issued in Poland in January 2020. It contains three offences: obstructing a police officer; false accounting in relation to VAT returns; and VAT fraud. Permission to appeal had been sought but not determined as at the date of the hearing before us.
Wojciech Chlabicz
The extradition of Wojciech Chlabicz (WC) is sought so he can stand trial in Poland for two offences of assault allegedly committed in June 2014. The maximum sentence for the first offence is three years and the second offence is two years. The EAW in his case was issued by the Regional Court in Bialystok on 13 June 2019 and certified by the NCA on 9 July 2019. He was arrested on 13 September 2019.
WC's extradition was ordered by a district judge on 13 December 2019. He lodged an appeal relying on Article 8 of the ECHR. He later applied to amend his grounds of appeal to include a ground that his extradition would violate Article 6 of the ECHR and is thus barred by s 21A of the EA 2003 because of the legislative changes in Poland.
Saini J refused WC permission on the Article 8 ground on 20 March 2020. Permission to appeal was granted by Lewis J (as he then was) on 3 June 2020 on the s 21/Article 6 ECHR grounds.”
Factual background: Polish judicial reforms
Since 2015 there have been a series of legislative reforms in Poland concerning the judiciary promoted by the governing Law and Justice Party ( Prawo i Sprawiedliwosc (PiS)), which came to power in that year. These reforms have raised concerns in many quarters, including within the EU, that the independence of the Polish judiciary and fair trial rights in Poland have been undermined as a consequence.
In Lis and others v Regional Court in Warsaw, Poland and others [2018] EWHC 2848 ( Lis No 1) the Divisional Court (Lord Burnett of Maldon CJ, Irwin LJ and Ouseley J) considered applications for permission to appeal which raised the issue whether these reforms were such that, without more, the applicants, who were all subject to EAWs issued by Polish judicial authorities, should be discharged and thus protected from extradition. The hearing in that case took place on 7 June 2018 and judgment was delivered on 31 October 2018.
The applications followed the judgment of Donnelly J in the High Court in Ireland in Minister of Justice and Equality v Celmer [2018] IEHC 119, which had also considered developments in Poland affecting the judiciary. Artur Celmer challenged his extradition to Poland in the High Court in Dublin on the basis that the legislative reforms in Poland undermined the possibility of him having a fair trial. Having considered the evidence, Donnelly J concluded that there had been a ‘deliberate, calculated and provocative legislative dismantling by Poland of the independence of the judiciary, a key component of the rule of law’ ([123]), and that ‘the rule of law in Poland has been systematically damaged by the cumulative impact of all the legislative changes that have taken place over the last two years’ ([124]). She concluded that the common values set out in the Treaty on European Union (TEU) were no longer accepted by Poland ([135]).
Donnelly J then considered the impact of those conclusions on Mr Celmer's appeal in the light of the decision of the Court of Justice of the European Union (CJEU) in Criminal Proceedings against Aranyosi [2016] QB 921, [80]. That decision emphasised the very limited grounds on which the execution of an EAW can be refused under the EAW Framework Decision. The judge concluded that there was such a fundamental defect in the Polish system of justice that it was ‘difficult to see how the principles of mutual trust and mutual recognition may operate’ ([141]). She therefore concluded that, before a final determination could be made, it was necessary to request rulings from the Luxembourg Court. The learned judge referred two questions to the CJEU. The questions are set out in Lis No 1 at [30]:
“(1) Notwithstanding the conclusions of the Court of Justice in [the judgment of 5 April 2016,] Aranyosi and Caldararu [(C-404/15 and C-659/1 PPU, EU:C:2016:198)], where a national court determines there is cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law, is it necessary for the executing judicial authority to make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial where his trial will take place within a system no longer operating within the rule of law?
(2) If the test to be applied requires a specific assessment of the requested person's real risk of a flagrant denial of justice and where the national court has concluded that there is a systemic breach of the rule of law, is the national court as executing judicial authority obliged to revert to the issuing judicial authority for any further necessary information that could enable the national court [to?] discount the existence of the risk to an unfair trial and if so, what guarantees as to fair trial would be required?”
The Grand Chamber's judgment following the Irish court's reference was delivered on 25 July 2018 and is reported as Criminal proceedings against LM [2019] 1 WLR 1004 (it is also sometimes referred to as Minister for Justice and Equality (Deficiencies in the system of justice)).
The developments in Poland considered in Lis No 1 and LM are described in detail in the former decision at [6]–[25] and so it is not necessary to give more than a summary here. The Polish reforms led, in December 2017, to the European Commission's Reasoned Proposal in Accordance with Article 7(1) of the Treaty on European Union regarding the Rule of Law in Poland (the Reasoned Proposal). The proposal was for a Council decision on the determination of a clear risk of a serious breach by Poland of the rule of law.
Article 7(1) of the Treaty on European Union (TEU) provides that, once a Reasoned Proposal is presented to the Council by the Commission (or the European Parliament or one third of the Member States), the Council acting by a majority of four-fifths of its members after obtaining the consent of the European Parliament, may make a determination that there is a clear risk of a serious breach by the Member State of the common set of values referred to in Article 2 TEU. This provides:
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to...
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