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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Komar v District Court of Torun, Poland [2015] EWHC 2547 (Admin) (17 September 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/2547.html Cite as: [2015] EWHC 2547 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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ANDRZEJ ![]() ![]() |
Appellant |
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- and - |
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DISTRICT COURT OF TORUN, POLAND |
Respondent |
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Julia Farrant (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 05/08/2015
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Crown Copyright ©
Mr Justice Cranston:
Introduction
Background
"…being the owner of the PW 'Agrol' Company and so being authorized to issue documents, acting in short time intervals and with premeditation, with aim to gain material benefit he as the PW 'Agrol' Company has issued in total 1780 VAT invoices for other companies… in which he confirmed untruth as to the fact of sale of diesel oil and he gained material benefit to the amount not less than 420.000 PLN an he made the committing of offence his regular income source." The maximum sentence is stated as one of 12 years' imprisonment.
Proceedings at Westminster Magistrates' Court
"[4] Prosecutor Nocun… once again stressed that if MrKomar
could be sent back to Poland he would most likely not be kept in custody after the preparatory proceedings have been completed. I asked Prosecutor Nocun whether he would be willing to either withdraw the EAW and issue summons for Mr
Komar
to attend the Prosecutor's Office or, alternatively, to arrange for a temporary transfer.
[5] Prosecutor Nocun stated that he could not agree to withdraw the EAW but could certainly consider a temporary transfer…
[6] I called Prosecutor Nocun [later that day] as agreed. On that occasion, I was told that, further to his consultation with the Prosecutor in charge, Mr Miroslaw Chlad, they have come to a decision that the EAW could be withdrawn only if MrKomar
paid a security for the amount of 50,000 zloty (the equivalent of £8767.28)…
[7] Further to my telephone conversation with Prosecutor Chlad, he informed me that he could neither consent to replacing the EAW with summons nor to the temporary transfer and he could only consider withdrawing the EAW if MrKomar
paid the security, as specified by Prosecutor Nocun.
[8] I explained to the Prosecutor that MrKomar
could not afford the security of such a substantial amount. I further inquired why he could not facilitate a temporary transfer as an alternative to extradition.
[9] Prosecutor Chlad explained that the temporary transfer would not work in practice as once MrKomar
had arrived in Poland, he would be arrested on the domestic warrant.
[10] I then asked the Prosecutor if an application could be made for the domestic warrant to be withdrawn. The Prosecutor insisted that that was not an option because if the domestic warrant was withdrawn, there would no longer be any basis for the EAW to be issued and therefore, it would have to be withdrawn.
[11] I drew [the] Prosecutor's attention to the severe consequences of executing EAWs, as recognized by the Council of the European Union which also urged Judicial Authorities' consideration of less coercive methods, other than extradition. In consequence, Prosecutor Chlad suggested an application for the so-called, 'Iron Letter' which, if granted, would provide MrKomar a guarantee of safe passage and that he would remain free until the final conclusion of the proceedings, provided that he would comply with conditions as ordered."
The extradition proceedings were further adjourned on the appellant's application until 21 May for him to apply to the Polish court for an "Iron Letter".
"I could find nothing on the face of the warrant to lead me to conclude that the [requested person] had been convicted. Box B the decision on which the warrant is based is a 'judicial decisions on preventive detention' rather than an enforceable judgment. At box C a maximum length of sentence is given and there is nowhere on the warrant an indication of any sentence which the [requested person] has to serve. At box E the [requested person] is described as 'suspected' of committing the offence. I did not consider that the remark in box D, 'the trial resulting in the decision' created ambiguity and was satisfied that the purpose of the warrant was clear…"
In relation to section 14, injustice or oppression through passage of time, the District Judge said firstly that it was agreed that the appellant could not be said to be a fugitive. He said:
"I accepted that there had been delay in this case. It was quite simply that the Polish authorities did not know his whereabouts after taking the decision to charge in 2006. When they became aware of his presence in the UK they sought to issue the warrant and to secure his extradition."
The argument as to injustice was dismissed as follows:
"I remained to be convinced that the delay would have a significant effect upon the RP being able to have a fair trial. The nature of the allegation was fraud where no doubt the evidence would substantially consist of written evidence. The allegation was said to have been committed over a period of two years and involved the issue of over 1500 fraudulent VAT invoices and the alleged benefit to the RP was 'not less than 420,000 PLN, which I understood to amount to approximately £74,000.
…
Further I did not consider… there was any reason to believe the consequences of the delay upon his trial (if any), would not be fairly dealt with by the requesting state in the trial process."
"I do not accept at this stage that there is the possibility of the matter being dealt with in a less coercive manner than the extradition which is sought. I remain of the view that the decision of the IJA [judicial authority] to issue the EAW is proportionate given the passage of time and the relatively short period of time the RP's whereabouts have been known."
Section 2: the warrant
Section 14: passage of time
Article 8 ECHR: private and family life
Section 21A: proportionality and less coercive measures
"If the competent authority of the issuing State has issued an arrest warrant or any other enforceable judicial decision having the same effect, the person shall be surrendered in accordance with the Framework Decision on the European Arrest Warrant."
This point seems confirmed by the Scott Baker Review, which stated that pursuant to the Framework Decision on pre-trial supervision, a requested person whose extradition was sought would need to be surrendered to the category 1 territory before a supervisory order could be granted: see Sir Scott Baker, A Review of the United Kingdom's Extradition Arrangements, 30 September 2011. At paragraph 5.153, the review said:
"Under the terms of the Framework Decision on pre-trial supervision, it is still necessary for the requested person to be surrendered to the category 1 territory but, following surrender, the courts in the category 1 territory should proceed in appropriate cases to grant bail confident in the knowledge that the individual will return voluntarily for the trial proceeding, or if not, another European arrest warrant could be executed speedily so as to ensure their return."
In other words, an order under the Framework Decision on pre-trial supervision is not intended as something which can interfere with the process of an EAW.
Conclusion