Kuznik v Circuit Court in Katowice, Poland [2009] EWHC 3705 (Admin)

Case No CO/10828/2008[2009] EWHC 3705 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 3 June 2009
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
and
MR JUSTICE CRANSTON
Between
TOMAS KUZNIKAppellant
B E T W E E N:
- v -
Between
CIRCUIT COURT IN KATOWICE POLANDRespondent
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Appellant appeared in person for in personMs Amy Mannion (instructed by Crown Prosecution Service)appeared for Respondent
J U D G M E N TWednesday 3 June 2009
[1]The appellant was convicted in Poland by the District Court of Jaworzno on 12 December 2001. The offence is described in the European Arrest Warrant as follows:
"From June till October 2000, in short periods of time, acting with a premeditated intent, having misled the bank's employees as to his financial capability and financial resources in his bank account, he brought the Bank Slaski SA in Katowice Branch in Jaworzno to disadvantageous disposal of money of PLN 8000 by doing operations with his Visa Classic Charge card and without having resources in his bank account to cover the expenses."
That offence was described as one of fraud within the terms of the framework decision on the European Arrest Warrant [2000] OJ L 190/1. A custodial term of one year's imprisonment was imposed in respect of the conviction.[2]On 31 March 2008 the Katowice Circuit Court (the issuing Judicial Authority) issued a European Arrest Warrant seeking the appellant's return to Poland. That warrant was certified by the Serious and Organised Crime Agency in April 2008.[3]The appellant was arrested on the warrant in September 2008 and he appeared before the City of Westminster Magistrates' Court the following day. The extradition hearing was set for 18 September 2008, but it was adjourned before the hearing occurred.[4]On 15 October the appellant's then legal representatives indicted that they had confirmation that the appellant, via his Polish lawyer, had paid the outstanding debts to the Polish Court. The extradition hearing which had been listed for 16 October was vacated to allow the parties to investigate the claim.[5]In a letter dated 15 October 2008 the Judicial Authority explained that the sentence was as follows:(1) A sentence of deprivation of liberty of one year imposed in December 2001, which had been conditionally suspended for two years, coupled with an obligation on behalf of the appellant to redress the damage.(2) A penalty of deprivation of liberty in January 2004 because the appellant had committed another offence within the probation period.(3) The appellant had not attended prison to serve his sentence as required. The letter continued that, although the decision to execute the penalty had been postponed on two occasions, the appellant failed to attend the penal institution to serve his sentence.[6]There was an extradition hearing in this country in November 2008. The Polish document referred to by the appellant's then lawyers was available. It confirmed that the debts had been paid. It indicated that there was a petition to the Polish Court to suspend yet again the activation of the appellant's prison sentence, rather than there being a court decision to withdraw the European Arrest Warrant. The document confirmed that the repayment of the debt was an element of the appellant's penalty in addition to the prison sentence.[7]The appellant gave evidence before a district judge. From his proof of evidence we see that he told the district judge that he had been convicted in both 2001 and 2004 because of unpaid debts. He did not know why the sentence had been activated, but he believed that it might have been because he had not repaid those amounts. He said that he had come to this country to obtain work and was living here with his wife and two children, aged 6 and 13. Both his children were fluent in English and attended school here. He was settled here and intended to remain. He had been offered a mortgage and was reluctant to sign the offer because of the uncertainty. He was now in a position to pay off the Polish debts. The appellant's legal representatives then made submissions to the district judge.[8]District Judge Nicholas Evans made the extradition order. In the note of his judgment made available to us, he explained the background of the prison sentences. He noted that the appellant had paid the full amount of the debt in Poland. There had been applications for postponement in Poland in September 2004 and March 2005. There was a pending application in Poland for a further suspension. In the view of the district judge it was not appropriate to postpone the matter any further. The district judge then turned to the passage of time and the human rights arguments. He noted that the appellant had not been unlawfully at large until April 2006. That was not a great length of time; it did not begin to establish oppression. As to Article 8, it would be inconvenient and disruptive to the appellant and his family to have to return to Poland, but the circumstances did not show any reason for it to be a breach of his human rights to serve the sentence.[9]The appellant, via his then solicitors, appealed against that decision on 11 November 2008 on the ground that it would be a disproportionate interference with his rights under Article 8 of the European Convention on Human Rights.[10]Meanwhile, the Crown Prosecution Service attempted to confirm that the European Arrest Warrant was extant. It received a letter dated 20 November from the Issuing Judicial Authority which confirmed the receipt of the appellant's petition to suspend the sentence; that the decision in respect of that petition was to take place in early January 2009; and that the European Arrest Warrant had not been withdrawn.[11]The appeal from District Judge Evans' decision came before Goldring LJ and Sweeney J on 10 March 2009. The appellant was unrepresented. He asked for an adjournment in order to instruct new solicitors and to allow the Polish courts to consider his application that the European Arrest Warrant be withdrawn. The court granted the adjournment and the Crown Prosecution Service was asked to investigate the outcome of the Polish hearing.[12]The matter was relisted for 30 April 2009. In a letter dated 21 April 2009, the appellant applied to adjourn the hearing of the appeal. He said that the Issuing Judicial Authority had "booked a hearing on 14 May 2009", which he "strongly believed" would settle the case positively for him.[13]In a letter dated 27 April 2009 the Issuing Judicial Authority confirmed that the appellant requested a conditional suspension of the execution of his custodial sentence; that that had been denied; that his Polish lawyer had lodged a complaint which was to be heard on 14 May 2009; that the judicial decision upholding or changing the decision of the Polish Court would become final on the day that it was rendered; and that there was no need to adjourn the British proceedings in respect of the appellant.[14]On 30 April 2009 the hearing came before Keene LJ and Roderick Evans J. They considered oral representations by the appellant and the letter that he had written on 21 April. He again applied for an adjournment on the basis that the Issuing Judicial Authority had "booked a hearing" for 14 May 2009. The court adjourned the appeal to await the outcome of that Polish hearing. The appeal was re-listed for today.[15]On 15 May 2009 the Issuing Judicial Authority sent a further letter in which they indicated that there had been a Polish hearing on 14 May. The letter explained that the hearing had been adjourned and that a further hearing was scheduled to examine the appellant's complaint. The appellant's request for the execution of his custodial sentence to be conditionally suspended had been denied. No new date was fixed for a further hearing. The Public Prosecution in Poland had requested the adjournment in order to collect and provide copies of the final and valid judgments on the execution of the custodial sentence. In their letter the Issuing Judicial Authority says:
"Please also be advised that we still seek extradition of the appellant."
[16]Before us this morning the appellant, who appears in person, requested that we adjourn yet again the hearing of this matter. In his submissions to us he contended that the Issuing Judicial Authority might well abandon the European Arrest Warrant. It would take two months for the Polish Court to collect the documents and that might well result in the sentence to which he was subject being quashed.[17]This is the third time this matter has been before this court. On two previous occasions the court has granted an adjournment. There is no indication in any of the correspondence from the Issuing Judicial Authority that the European Arrest Warrant has been withdrawn. There is no suggestion in any of the correspondence with the Polish Court that they contemplate that possibility or that they will in any way alter the sentence which has been imposed upon the appellant. Indeed, it is clear from the correspondence that the European Arrest warrant continues in force. It seems clear that the approach of the Polish Court is that the appellant must one day serve his sentence. As my Lord observed in argument, there is need for finality in this matter. That is underlined in the recitals in the Framework Decision, particularly recital 5 (which sets out the Framework Decision's objective setting up a new simplified and expeditious method of proceeding in extradition regimes), and in recital 6 (which emphasises the principle of mutual recognition and judicial co-operation).[18]Having declined the request for an adjournment, we heard the appellant in relation to the substance of the appeal. He explained to us that he had travelled to England freely before the second offence had triggered the need for him to serve a sentence of imprisonment. He explained that the offence was one of not paying his debts. He had now repaid the 8,000 Polish Zlotys, which until recently had remained unpaid. It was because of his employment in this country that he was able to do that. He underlined the point that he had made previously about the doubts hanging over the original sentence and said that in his view that was why on 14 May the Polish Court had asked the Polish Prosecutor to make enquiries in relation to his life in the United Kingdom. He said that he was well settled with his wife and two children. He explained that he is the sole provider; that his debts to English traders were much greater than his debts in Poland; and that if he had to return to Poland it would be tragic for his family. His return was unnecessary because the Polish Court might well decide that the sentence of imprisonment did not need to be served.[19]The law in this area is clear. In Ruiz v Central Court of Criminal Proceedings [2007] EWHC 2983 Admin; [2008] WLR 2817, Dyson LJ said:
"What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's article 8 rights."
[20]In my view the appellant's circumstances are far from being striking or unusual to make it disproportionate to interfere with his Article 8 rights. There will certainly be disruption to his life and an impact on his family life. To my mind the appellant appears to be living an unexceptional and praiseworthy life in this country. He is in employment and is providing for his family. Notwithstanding that, and notwithstanding the disruption that will result from the removal of the appellant to Poland to serve the sentence, there is no Article 8 right operative in this case. It will not be disproportionate to return him to Poland. There is no suggestion that his family will be unable to continue to live in this country in his absence, notwithstanding the hardships because he can no longer provide for them.[21]I make no assessment of the seriousness of this offence. From his letters the appellant suggests that this is an offence which is of a low level of seriousness. However, it is an offence of fraud and the Issuing Judicial Authority has certified it within those terms for the purposes of the Framework List Offence. I do not know the nature of the offending, but it falls within the Framework List. In my view there is no obstacle to the appellant's extradition in accordance with the law of this country. I would dismiss this appeal.

LORD JUSTICE PILL: I agree that the appeal should be dismissed.