Kaczanowski v The District Court of Zamosc, Poland [2012] EWHC 2872 (Admin)

Case No CO/3326/2012[2012] EWHC 2872 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 4 October 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
KACZANOWSKIAppellantv
Between
THE DISTRICT COURT OF ZAMOSC, POLANDRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr Wojciech Zalewski (instructed by Furner Clark & Ryan) appeared for AppellantMr Nicholas Hearn (instructed by The Crown Prosecution Service) appeared for Respondent
Judgment
[1]MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against a decision of District Judge Daphne Wickham given on 26 March of this year, whereby she ordered the defendant's extradition to Poland in order to serve a sentence of 12 months' imprisonment, which had been imposed on him for an offence of theft or commercial burglary (it is not entirely clear precisely whether in terms of our law it would have amounted to the former or the latter).[2]The offence itself was committed on 24 February 2005, and it seems that the appellant was effectively caught red-handed. He entered into an agreement with the prosecutor by a process which is approved in the Polish system, whereby he would receive a sentence of 10 months' imprisonment, and thus he was expecting that that was the sentence that would be imposed upon him because he had apparently pleaded guilty to the offence.[3]It seems that he believed, and it may be he was right to believe, that he did not need to attend the sentencing court at the time that the decision was reached, albeit of course he had to be available to serve the sentence in question. In any event, he did not attend and it seems that he may have been wrong in his view, because the court, on the basis that he had failed to attend, took the view that the plea bargain, which is what it effectively amounted to in terms that we would think appropriate, need not in those circumstances be honoured, and it was open to the court to impose a sentence which was greater than the 10 months which had been agreed. In any event, that is what happened in 2006.[4]He received, according to a letter of explanation which was received from the Polish authorities in February 2012, a notification on 8 May 2006, which was shortly after the sentence was imposed. A copy of the sentence included, it is said, its justification (that means the reasons given for its imposition), and he was told that there was a 14-day deadline for filing an appeal. It is said that he signed for receipt of that document. He did try to appeal, but unfortunately he lodged his appeal after the 14-day deadline -- only just after, but it was, unfortunately for him, after, and the President of the Regional Court in those circumstances refused to accept the appeal because it was out of time.[5]At the end of May he was then personally served with a copy of the order, but again he was told he could appeal, but he did not appeal. Therefore the order became enforceable. In the meantime, although it is not entirely clear precisely when, he decided to leave Poland and he has been in this country since.[6]The District Judge in those circumstances decided that he was, as she put it, a classic fugitive, and the Polish Judicial Authority therefore had done all that was required of it to satisfy the provisions of section 20 of the Extradition Act. That is the provision that requires that this court is satisfied that there is an opportunity to challenge a decision made against the requested person in absentia, where he has not chosen deliberately to fail to attend relevant proceedings.[7]Assuming, as I do, that he was not at fault in failing to attend the original hearing, the fact is that he had rights of appeal which were disclosed to him, and initially he was out of time and latterly chose not to pursue any such rights. In those circumstances, he is, as it seems to me, clearly in the same position as would apply had he chosen not to attend the original hearing; that is to say, he has foregone the right to complain that the Polish system has led to him wrongly having been not only dealt with in absentia originally, but also not being able to challenge that hearing in absentia.[8]In those circumstances, any ground relied on under section 20 is not sustainable.[9]The other point taken is an alleged breach of Article 6 of the European Convention on Human Rights. This stems from a decision of the European Court of Human Rights in Urban v Poland, a decision which was given, it seems, in November 2010, but made final in February of 2011, the application number being 23614/08. The issue was whether the use of assessors who sat with the judge in Polish criminal cases was contrary to Article 6 on the basis that the assessors had no security of tenure and were able to take part in the process and so influence the outcome.[10]In the circumstances of this case, the complaint is that the assessors were present at the hearing which led to the increase of the sentence from the agreed 10 months, about which, as Mr Zalewski recognises, the appellant would have no complaint, to 12 months. It is said that, in those circumstances, the presence of the assessors was a breach of Article 6, and thus he did not have a fair hearing on that occasion. That being so, the fact that he did not appeal is nothing to the point because he would not at that time have been aware that there was any unlawfulness in terms of the Human Rights Convention in the use of the assessors.[11]The court in paragraph 56 of its judgment in Urban said this:
"The Court notes that the domestic law provides for a possibility of reopening of criminal proceedings when such a need results from a judgment of the Court."
That is a matter that was referred to in more detail earlier in its judgment in paragraph 27. The relevant provision is Article 540(3) of the Code of Criminal Procedure, which provides:
"The proceedings shall be reopened for the benefit of the accused when such a need results from a decision of an international body acting on the basis of an international agreement ratified by the Republic of Poland."
[12]Going back to paragraph 56, the court continues:
"However, in light of the reasons underlying the finding of a violation in the present case and having regard to the principle of legal certainty as expounded in the Constitutional Court's judgment and its own case-law ... the Court considers that in the present case there are no grounds which would require it to direct the reopening of the applicants' case ... The Court would not exclude that it might take a different approach in a case where, for example, the circumstances of a particular case give rise to legitimate grounds for believing that the Minister had or could reasonably be taken to have an interest in the proceedings."
Those latter observations are not material here.[13]So it is plain from the Polish relevant provisions that the appellant, if returned, would have the right to ask the Polish court to re-open the matter on the ground that the assessors ought not to have taken part, and thus the door is not closed to him were he to be returned to Poland.[14]As I have said, there is and can be no complaint about a sentence of 10 months' imprisonment. The only argument that he would have relates to the additional 2 months. That is a matter that can properly be dealt with by the Polish court because it has the jurisdiction and this court is entitled to assume that it will deal with the matter fairly if the appellant makes an application in that regard having returned to Poland. Accordingly, there is no basis in the circumstances of this case for deciding that section 21 and an alleged breach of his human rights precludes the extradition.[15]That leaves one final matter. I am told that he has been in custody since January relating to these extradition proceedings. That means he has now served some nine months of the balance outstanding, which amounts to 11 months and 28 days. So far as this case is concerned, he has no argument in relation to 10 months, and there is still, albeit not a long period, about a month to be served in relation to that. No doubt, he will make a speedy application to the Polish court to challenge the additional 2 months on return.[16]In my view, there is sufficient time left to make it appropriate for him still to be extradited. Having said that, of course that is a relatively short period, and no doubt the Polish authorities will decide whether the expense of getting him back is, in the circumstances, appropriate. That is a matter for them and not for me. In those circumstances, this appeal must be dismissed.[17]Mr Zalewski, are you legally aided?[18]MR ZALEWSKI: My Lord, yes.

MR JUSTICE COLLINS: So you want the usual order?

[20]MR ZALEWSKI: I would be most grateful.

MR JUSTICE COLLINS: You of course can have the usual detailed assessment order.

[22]MR ZALEWSKI: I am most grateful.