Szatkowski v Regional Court In Opole (Poland)

For the purposes of s 20 of the Extradition Act 2003, a person convicted in absence may be extradited where the requesting state establishes deliberate absence or where the person previously had an effective opportunity for a retrial or appeal and chose not to use it. Section 20 must be interpreted, so far as possible, consistently with Article 4a of Framework Decision 2002/584/JHA. That requires the provision to cover both effective retrial rights available before surrender and those available after surrender. An interpretation requiring a future retrial in every case would contradict the Framework Decision’s purpose and produce the irrational result that a person who had waived an appeal could not be extradited, while a person who merely might waive one could be extradited.

The appellant appealed against a District Judge’s order for his extradition to Poland under a conviction European Arrest Warrant. He had been convicted in absentia in 2008, later received the decision, knew of his right to appeal or seek a retrial, and did not exercise it. The District Judge concluded that he had deliberately absented himself from trial and rejected his challenge under s 20 of the Extradition Act 2003.

Before the Divisional Court, the appellant challenged both the finding of deliberate absence and the interpretation of s 20(5). The Article 8 ground was not pursued. The central issues were whether deliberate absence had been proved and whether a prior, unused right of appeal or retrial satisfied the statutory scheme.

1. Appeal dismissed. The District Judge’s finding that the appellant deliberately absented himself from the 2008 trial could not stand. The judgment did not identify evidence establishing that he had been summoned, had received the relevant trial information, or had deliberately stayed away. The European Arrest Warrant contained contradictory statements about whether he had been summoned. Reliance could not properly be placed on either statement without resolving that contradiction.
2. The court endorsed and adopted the principles stated in Stryjecki / District Court in Lublin, Poland [2016] EWHC 3309 (Admin). The requesting authority bears the criminal-standard burden of proving deliberate absence. “Trial” means the scheduled trial event resulting in the decision, rather than the prosecution process generally. An unambiguous EAW statement satisfying Article 4a may ordinarily be accepted under the principles of mutual trust, but ambiguity permits the executing court to assess the evidence independently.
3. The court also endorsed and adopted the guidance in Cretu v Local Court of Suceava [2016] EWHC 353 (Admin). Article 4a does not generally contemplate an investigation by the executing state into the issuing state’s compliance with Article 6. Where the EAW contains the required statement, the burden is discharged unless the warrant is ambiguous, confused or abusive.
4. The appellant had received the 2008 decision, knew of his right to appeal, and chose not to exercise it. That placed him within Article 4a(1)(c). Section 20(5) was not congruent with Article 4a(1)(c) and (d), because it did not expressly distinguish a past effective retrial opportunity from a future one.
5. Applying conforming interpretation, the court held that s 20(5) must be read as covering whether the person “was or would be entitled to a retrial”. This interpretation was consistent with the statutory purpose and did not contradict the clear intent of Parliament. It gave effect to the Framework Decision’s protection of Article 6 rights and avoided an absurd distinction between a person who had waived an available remedy and one who merely might waive a future remedy.
6. The extradition order was therefore correct, although the District Judge had reached it for the wrong reason.

1. High Court, Queen’s Bench Division, Divisional Court: the appeal against the Westminster Magistrates’ Court decision was dismissed. The extradition order was upheld on a different basis.
2. Westminster Magistrates’ Court: District Judge Devas ordered extradition on 27 September 2017.