Nebak v Regional Court of Bydgoszcz, Poland

For the purposes of extradition following a conviction in absence, a person is deliberately absent where the evidence proves beyond reasonable doubt that he made a conscious decision not to attend, foreseeing that the trial would proceed without him. Knowledge of the proceedings and conduct clearly demonstrating an intention not to participate may justify that inference, even without proof that he knew the precise hearing date and place.

Foreign judicial information is approached on the basis of mutual recognition and trust. The requesting authority need not ordinarily produce every underlying document where the information supplied is sufficiently clear. If deliberate absence is established, the court proceeds under Extradition Act 2003; an absence of an automatic and unqualified right to retrial does not require discharge.

The claimant appealed against a District Judge’s decision dated 11 August 2011 ordering his extradition to Poland under a European Arrest Warrant to serve a three-year sentence. The challenge concerned convictions in his absence for offences committed in 2008. The claimant argued that he had not deliberately absented himself and that he would not have an automatic and unqualified right to a retrial in Poland.

The respondent accepted the absence of such an automatic retrial right. The central issue was therefore whether the claimant had deliberately absented himself within section 20(3) of the Extradition Act 2003.

1. Appeal dismissed. The burden lay on the respondent to prove beyond reasonable doubt that the claimant had deliberately absented himself: Mitoi v Government of Romania [2006] EWHC 1977.
2. Applying the formulation summarised in Czekala v District Court In Bydgoszcz [2010] EWHC 1895 (Admin), deliberate absence ordinarily requires a clear conscious decision not to attend, with foresight that the trial would take place in the person’s absence. Such a decision may be inferred where conduct clearly and unequivocally demonstrates an intention not to take part in the forthcoming trial, even if the precise date and place are not proved.
3. The District Judge was entitled to reject the claimant’s account. The evidence showed that he knew of the proceedings, had reporting and address-notification obligations, had been warned to attend court, had been summoned at addresses he had provided, and had left Poland without informing the authorities.
4. The material concerning the Polish procedure under section 335 of the Polish Criminal Procedure Code did not establish any agreement dispensing with attendance, or any reasonable basis for believing that such an agreement had been reached. It would not have altered the District Judge’s conclusion.
5. Since deliberate absence was established, the court properly proceeded under sections 20 and 21 of the Extradition Act 2003. The claimant’s lack of an automatic and unqualified right to retrial did not require discharge. The request to leave credit for three days in custody was left to the Polish authorities, and no order was made on that issue.

1. High Court (Administrative Court): The appeal from the District Judge’s decision of 11 August 2011 was dismissed.