Bartnicki v Circuit Court In Olsztyn Poland

LORD JUSTICE HOOPER: The circuit court in Olsztyn, Poland, the respondent to these proceedings, seeks the extradition of Daniel Bartnicki, the appellant, in relation to a European arrest warrant ("EAW") issued by the Polish judicial authority on 6th August 2009 and certified by the Serious Organised Crime Agency on 6th December 2009.

The appellant is sought as a convicted person in order that he may serve a 1-year sentence of imprisonment which had been imposed upon him for the commission of two offences to which he pleaded guilty. It is not necessary for the purposes of my judgment to refer to the details of the offences to which he pleaded.

The court having convicted the appellant suspended the sentence of imprisonment for a period of 3 years. There seems to be no dispute that the appellant was present at the hearing when that sentence was passed, albeit that he was unrepresented. On 14th May 2007 the suspended sentence was activated due, the respondent says, to the appellant's noncompliance with the conditions of his suspended sentence. He was arrested on 27th January 2009 and was produced before a district judge at the City of Westminster Magistrates' Court.

The hearing was adjourned until 11th February, when the matter was heard by District Judge Purdy.

The appellant's solicitor sought to adjourn the hearing on the basis that lawyers in Poland had applied to the court in Olsztyn to withdraw the EAW and stating that the matter would be heard within five weeks. Furthermore, it was averred that the appellant's Polish lawyer had viewed the court file and was of the opinion that there was no condition attached to the suspended sentence which would have prevented him from leaving the country. The judge refused the application to adjourn, stating that the application went beyond the mutual trust and recognition which forms the basis of the system of EAWs. The extradition was therefore ordered.

The appellant now seeks to challenge that decision on a number of grounds. In one of them it is submitted that the appellant was not in breach of his suspended sentence.

The appellant served a letter from a Mr Zuk, an advocate, who states, in a letter of 31st March 2010, that it was not a breach of the terms imposed upon the appellant as part of the suspended sentence for him to leave the country.

We also were provided with a witness statement from the appellant himself. The effect of the appellant's statement was to a like effect: that he had not been told that he could not leave Poland during the term of the suspension.

That led to the respondent producing for the court a document dated 6th April 2010, signed by the Deputy Chairman of the second criminal division of the circuit court in Olsztyn.

The EAW in this case did not refer at all to the fact that the appellant was being sought as a result of a breach of a suspended sentence order. What this document does, so the respondent submits, is fill the lacuna left by the EAW. Mr Symmers rightly does not dispute that in deciding on the issue of extradition, on the facts of this case, we are entitled to take into account both the EAW and this document.

Mr Symmers made an application to introduce as fresh evidence the letter from the lawyer and the statement of the appellant. We granted that application. Mr Grandison rightly did not oppose it due to the fact that the district judge had refused an adjournment.

We also, and Mr Symmers did not oppose this, allowed the respondent to introduce fresh evidence in the form of the document signed by the Deputy Chairman of the Second Criminal Division. That document sets out, in some great detail, what happened during the course of these proceedings. It makes clear in paragraph 2 that at some point the appellant was instructed about the duties and rights of a person resulting from the provisions of Article 169 paragraph 3 of the Polish Criminal Code. He was told that he cannot change his address without informing his probation officer. Paragraph 2 refers to a document signed by the appellant in his own handwriting, on 10th March 2006, in which he recognises the obligations imposed on him as part of the suspended sentence order. That document has not been produced by the respondent with this document but there is no evidence that such a document was not signed.

The document states that in June 2006, no contact could be made with the appellant. In the words of paragraph 2, he had changed his place of residence without indicating to the probation officer his new address and all attempts at contacting him and determining his new place of residence in the country had failed. It was for that reason that on 14th May 2007 the court found a breach of the suspended sentence order and ordered the appellant to serve the 1 year sentence.

In my view, there can be no doubt that what has been produced by the respondent is sufficient to make it quite clear that this appellant left the country in breach of his suspended sentence order.

When we informed Mr Symmers that that was the view of the court, having looked at all the evidence, Mr Symmers rightly accepted that that brought this appeal to an end. In those circumstances I would dismiss the appeal.

LORD JUSTICE KENNEDY: I agree.

LORD JUSTICE HOOPER: Thank you Mr Symmers.

MR SYMMERS: May I apply for assessment of the publicly funded costs in the usual way?

LORD JUSTICE HOOPER: Mr Grandison you do not have any applications?

MR GRANDISON: No my Lord. Save for one, my learned friend is concerned regarding the first issue it was not argued, such as the court has jurisdiction to deal with it. I take it from my Lord's judgment this is simply decided on the facts and that primary one did not concern the court.

LORD JUSTICE HOOPER: Yes. Thank you.