The High Court has refused an order to surrender a man to Poland, finding that the state had not established that his defence rights were adequately protected at a 2014 hearing held in his absence.
The application sought his surrender to serve a Polish sentence of three years’ imprisonment, with two years, one month and 25 days remaining. The warrant concerned a cumulative judgment made by the District Court in Nowy Targ on 4 June 2014, combining two earlier sentences.
Mr Justice Paul Burns said the respondent had a right to attend the 2014 hearing. It was not a formality: the Polish court had discretion over the penalty to impose. The respondent had not been notified of the hearing, was not represented there and was not told of the outcome in time to appeal within the applicable period.
The issuing authority said he could request that the proceedings be reopened, but clarified that he had a right to request an appeal or rehearing, rather than an automatic right to one. The High Court found that this did not meet the requirements of section 45 of the European Arrest Warrant Act 2003, which provides for surrender in specified circumstances involving trials in a person’s absence.
The applicant accepted that the respondent had not been summoned in person and that it had not been established unequivocally that he knew the date and place of the 2014 hearing. It argued, however, that his conduct concerning two earlier criminal cases and his departure from Poland amounted to a waiver of his rights in later proceedings.
The judge accepted that the respondent had waived his right to attend the hearings leading to the two earlier sentences. But he said those were separate from the 2014 proceedings, which arose after a change in Polish law and were not within the respondent’s reasonable contemplation when he left Poland. The earlier waiver or lack of diligence could not simply be carried over to the later hearing.
The court concluded that the issuing state had neither unequivocally established a waiver of the right to attend the 2014 hearing nor shown compliance with section 45. It therefore found surrender precluded and ordered that the respondent not be surrendered. The ruling concerned the warrant based on the 2014 cumulative judgment; the judge noted that the two earlier sentences would have raised a different section 45 issue.