Zygmunt Niziol v Regional Court in Warsaw (A Polish Judicial Authority)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 19 December 2023 |
| Neutral Citation | [2023] EWHC 3252 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4110/2023 |
[2023] EWHC 3252 (Admin)
THE HONOURABLE Mrs Justice Farbey
Case No: CO/4110/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Perry KC and Rebecca Hill (instructed by Bindmans LLP) for the Appellant
Alexander dos Santos (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 10 October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 19 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The appellant is a Polish national born on 28 August 1953. He appeals under section 26 of the Extradition Act 2003 (“the Act”) against the order for his extradition made by District Judge Sternberg (“the DJ”). The appellant was arrested on 21 May 2021 and produced at Westminster Magistrates' Court on the same day for an initial hearing. The extradition hearing took place before the DJ on 22 and 23 August 2022. The DJ received further written submissions before handing down judgment and ordering extradition on 1 November 2022.
The appeal is founded on fresh evidence that was not available to the DJ. The fresh evidence comprises:
i. A sixth statement of the appellant's criminal lawyer in Poland, Piotr Kardas, who is a Professor of Criminal Law at Krakow University. The statement (dated 31 January 2023) deals with the appellant's cassation appeal to the Polish Supreme Court.
ii. A copy of the Polish Supreme Court's statement of reasons for dismissing the appellant's appeal on the basis that it was clearly unfounded. The statement of reasons is dated 27 October 2022.
Strictly speaking, the Supreme Court decision pre-dates the DJ's decision and so the decision and Professor Kardas' fresh statement about the decision might have been made available for the DJ to consider. However, the respondent does no more than point out the chronology. I accept that it would not have been practicable for the DJ to consider the Supreme Court decision before making the extradition order. Importantly, the statement of reasons was not received by the appellant's Polish lawyers until after the DJ's judgment had been handed down. I accept that both the Supreme Court's decision and Professor Kardas' views of that decision are fresh evidence ( Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), para 32).
On the basis of the fresh evidence, the appellant submits:
i. Ground 1: The new evidence demonstrates that the DJ was wrong to conclude that the Polish judiciary possesses the necessary qualities of independence and impartiality to meet the requirements of a judicial authority under s.2 of the Act;
ii. Ground 4 (retaining the original numbering of the written grounds): The DJ was wrong to conclude that the appellant does not face a real risk of a breach of his right to liberty under article 5 of the European Convention on Human Rights (“the Convention”) in so far as his conviction and sentence were imposed through a trial process which was flagrantly unfair and which breached his article 6 fair trial rights; and
iii. Ground 2: The fresh evidence demonstrates that the appellant was convicted in his absence. Given that his absence was not deliberate, the DJ was wrong to conclude that his discharge was not required under s.20(7) of the Act.
In response to these Grounds, the respondent submits that the fresh evidence does not show that the DJ was wrong on any issues. Had this evidence been available to the DJ, it would not have led to the appellant's discharge.
Permission to appeal on other grounds was refused.
I heard submissions from Mr David Perry KC (who did not appear below) with Ms Rebecca Hill on behalf of the appellant and Mr Alexander dos Santos on behalf of the respondent. I am grateful to all counsel and their solicitors for the high standard of their work.
The extradition offences
The appellant was extradited from the United Kingdom to Poland on 15 June 2007 to stand trial but he subsequently managed to return. His extradition is now sought pursuant to an arrest warrant issued on 21 December 2020 and certified by the National Crime Agency on 19 May 2021.
The warrant is based on the appellant's convictions and sentence in relation to four offences. Those offences are described at length in the warrant. They relate to the appellant's involvement with a company whose name is translated as “Plasma Fractionation Laboratory in Mielec” (“the Company”). The offences may be summarised as follows:
i. Forgery: Between 6 December 1996 and 20 January 1998, the appellant as a President of the Management Board of the Company, misappropriated 8,091,750 USD through the vehicle of a number of counterfeit invoices.
ii. Fraud: Between 4 March 1997 and 29 December, the appellant, as a President of the Management Board, undertook various fraudulent actions in relation to investment credit in favour of the Company. My understanding is that the value of the fraud was 21,218,547.17 USD.
iii. Fraudulent trading: Between 30 April 1997 and 31 December 1998, the appellant, as a President of the Company, spent Company money on non-Company business (renting office space in London; taking legal advice for his own benefit on British immigration law; and travel for family members). The total sum that he gained was around 454,432,77 zloty (equivalent to £77,760).
iv. Fraudulent trading: On 26 November 2002, when the Company was threatened with insolvency, he frustrated the payment of creditors by taking Company assets. This had a significant effect on the value of the Company's share capital.
In his evidence to the DJ, the appellant maintained that he is not guilty of any of the offences. He gave details of how the Company was supported by high profile ministers and politicians. He believes that he was convicted because he was less well connected politically than other persons who were tried for the same offences and acquitted.
Trial and appeals in Poland
Given the emphasis on unfair trial procedures in the grounds of appeal, it is necessary to set out in some detail the history of the criminal proceedings in Poland.
Regional Court: Trial and sentence
The appellant's trial took place in the Regional Court in Warsaw. The Polish authorities provided the DJ with further information in order to supplement the information in the arrest warrant. The further information confirms that the appellant stood trial during 123 hearing days between 29 March 2010 and 6 August 2018. He was represented throughout the trial by three defence attorneys who attended the hearings or sent a substitute. Notices of the hearing dates were given. Applications by the appellant to change hearing dates (for reasons of health) were allowed. He attended most of the hearing days. When he did not attend, his lawyers asked to proceed in his absence.
The further information says that, on 6 August 2018, a hearing took place “to process the case in terms of merits.” The appellant attended and addressed the court as to sentence. The judgment as to sentence was adjourned to 20 August 2018. Although the appellant did not attend on that date, his lawyer was present. The arrest warrant states that the Regional Court imposed a four-year term of imprisonment.
Court of Appeal: Prosecution appeal against sentence
Notice of a Prosecution appeal against sentence was posted to the appellant's address but not served upon him personally. For that reason, the appeal was adjourned from 20 January 2020 to 26 February 2020. The appellant did not attend the appeal hearing but one of his lawyers did so. The Court of Appeal in Warsaw increased the sentence to 7 years' imprisonment (of which 4 years, 11 months and 8 days remains to be served). The Court of Appeal panel was comprised of three judges. The judgment was given by Judge Anna Kalbarczyk, who was at the time seconded to the appeal court by the Minister of Justice. It was a central theme of the appellant's submissions before the DJ, as it is before me, that the deployment of a seconded judge was unfair because seconded judges are too close to, and influenced by, the Polish Government.
Regional Court: Appellant's application to postpone sentence
The Police thereafter tried but failed to locate the appellant in order to enforce the sentence. On 9 September 2020, the Regional Court issued a domestic warrant for his arrest. Professor Kardas applied for the postponement of the sentence but, in a decision of 19 November 2020, the Regional Court refused the application.
On 17 February 2021, the Court of Appeal upheld the Regional Court's decision. In response to a question about whether any judge had been seconded or delegated for that appeal, the further information states:
“each of the adjudicating judges is independent, and there is no legal basis to challenge that. For the above reasons, giving a response to the questions concerned shall be considered unproductive.”
Supreme Court: Cassation appeal against conviction
Professor Kardas lodged a cassation appeal to the Polish Supreme Court. One ground of appeal was that the composition of the Court of Appeal that had allowed the Prosecution appeal on 26 February 2020 was improper because Judge Kalbarczyk was a seconded judge and so not independent of the Polish Government.
On 21 April 2021, Judge Igor Zgolinski dismissed an application in the Supreme Court to suspend the execution of the sentence. Judge Zgolinski was appointed by the National Council of the Judiciary (known as the “neo-NCJ”) which was established under a 2017 law to exercise jurisdiction over the appointment of judges. For present purposes, Mr dos Santos does not...
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