EAW enforcement of a sentence rejected as the proceedings were not adversarial
COURT OF APPEAL OF AIX-EN-PROVENCE IN THE NAME OF THE FRENCH PEOPLE JUDGMENT
No. 121/MAE/2021 CHAMBER 6-5 EUROPEAN ARREST WARRANT
DECISION OF THE INVESTIGATING CHAMBER of June 30, 2021 73 B3.1.1/2021 – 2021/1642.
The Investigating Chamber of the Court of Appeal of Aix-en-Provence, meeting in open court on the THIRTIETH OF JUNE TWO THOUSAND TWENTY-ONE;
Pursuant to Articles 695-11 et seq. of the Code of Criminal Procedure,
Pursuant to Articles 695-11 et seq. of the Code of Criminal Procedure,
Bruno NEDELEC, judge, was heard regarding his report on the request for the execution of a European arrest warrant concerning:
Mr. X.Y. born on XXX, in XX (XX) son of XX and XX, A Polish national
Divorced
Unemployed
Homeless
Currently detained at the LUYNES Detention Center
Subject to a provisional detention order dated May 28, 2021, issued by the judge appointed by the First President of the Court of Appe
Aix-en-Provence
Represented by:
Maître Etienne ARNAUD – 12 rue Emeric David – Hôtel de Carcès – 13100 AIX-EN-PROVENCE
Assisted by Barbara RAISON, a sworn Polish interpreter, listed on the roster of experts of the Court of Appeal of AIX-EN-PROVENCE, who provided assistance whenever necessary
SUBJECT: Request for the execution of a European arrest warrant issued on July 12, 2017, by the Polish judicial authorities pursuant to the provisions of Articles 695-22 et seq. of the Code of Criminal Procedure.
The presiding judge questioned the defendant, who responded to the various questions put to him.
Denis VANBREMEERSCH, Advocate General, was heard presenting his arguments.
Maître Guillaume DANAYS, acting on behalf of Maître Etienne ARNAUD, counsel for the defendant, who was present at the bar, was heard.
Mr. X.Y., appearing pursuant to the provisions of Article 695-29 of the Code of Criminal Procedure, was heard regarding his explanations and was the last to speak.
The proceedings having concluded, the Investigating Chamber deliberated in accordance with the provisions of Article 200 of the Code of Criminal Procedure. The presiding judge delivered the following judgment in open court today, in the presence of the interpreter, Mr X.Y., and his attorney. Having regard to the request for surrender submitted by the Polish judicial authorities pursuant to the provisions of Articles 695-22 et seq. of the Code of Criminal Procedure in execution of a European arrest warrant issued on July 12, 2017;
Having regard to the record of notification to the person concerned by the Attorney General of the European arrest warrant and the information provided for in Article 695-27 of the Code of Criminal Procedure, dated May 28, 2021;
Having regard to the written submissions of the public prosecutor dated June 3 and 29, 2021;
Having regard to the hearings before the investigating chamber on June 2, 9, and 30, 2021, of which minutes were drawn up;
Having regard to the case file, from which it appears that the Public Prosecutor notified the interested parties of the hearing dates on May 28, June 3, 16, and 17, 2021;
Having regard to the orders of referral dated June 2 and 16, 2021;
Having regard to the briefs filed with the Clerk of the Investigating Chamber by Maître Etienne ARNAUD and acknowledged by the Clerk on June 8, 2021, at 2:10 p.m. and June 19, 2021, at 3:50 p.m.;
FACTS:
Mr. X.Y. is the subject of a detention order issued on May 28, 2021, by the judge designated by the First President of the Court of Appeal of Aix-en-Provence to a European arrest warrant dated July 12, 2017,issued by the judge of the Court of Gorzow Wielkopolski (Poland) for the enforcement of an 8-month prison sentence imposed by a judgment of September,10, 2015, of the District Court of Strzelce Krajenskie for repeat theft offenses committed between March 8 and 10, 2015, in Strzelce Krajenskie, Lubuskie Province (Poland).
The acts attributed to the person concerned are described by the requesting authorities in the aforementioned arrest warrant.Mr.X.Y.is also the subject of 3other European arrest warrants issued by the judge of the District Court of Gorzow Wielkopolski in 2015 and 2017 for the enforcement of sentences totaling approximately 5 years and 6 months of imprisonment, relating to thefts committed between September 2013 and April 2015.
At the hearing before the Investigating Chamber on June 16, 2021, in the presence of his attorney, Mr. X.Y. stated that he did not consent to his surrender and did not waive the rule of speciality. In a brief and at the hearing, his counsel requested additional information, since the details mentioned in the European arrest warrant, while specifying that Mr. X.Y. did not attend the hearing, do not allow for a determination of whether the conditions set forth in Article 695-22-1 of the Code of Criminal Procedure are met in this case.
The public prosecutor also requested additional information.
By an interim ruling of June 16, 2021, the investigating chamber ordered additional information from the Polish authorities and adjourned consideration of the case until June 30, 2021.
In a note dated June 25, 2021, the Polish authorities indicated that the proceedings, in accordance with Polish law, were not adversarial.
In a brief dated June 29, 2021, and at the hearing, his counsel objected to the surrender, having had no knowledge of these proceedings.
The Public Prosecutor’s Office requested that the surrender be refused, pursuant to the aforementioned instrument.
GROUNDS FOR THE DECISION:
Mr. X.Y. acknowledged that he was the person named in the aforementioned European arrest warrant and stated that he did not consent to his surrender and did not waive the rule of speciality.
Surrender is sought for the enforcement of an 8-month prison sentence, imposed in absentia by a criminal court, for repeat offenses of theft.
These acts are criminalized under French law under an identical criminal classification and fall within the scope of Article 695-12 of the Code of Criminal Procedure.
Since the information in the European arrest warrant suggests that the conviction handed down by the court in Strzelce Krajskie on September 10, 2015, was not issued in a adversarial proceeding, the Investigating Chamber ordered, prior to ruling on the merits pursuant to Article 695-33 of the Code of Criminal Procedure, that additional information be sought from the Polish authorities regarding the circumstances under which that decision was rendered and whether it has become final or is still subject to appeal, by order of June 16, 2021.
In their response dated June 25, 2021, the Polish authorities confirm that Mr. X.Y. did not receive a summons to the hearing, did not appear at his trial—neither during the proceedings nor at the pronouncement of the judgment—was not assisted by a lawyer, did not receive personal notification of the judgment, and furthermore has no further avenues of appeal. It thus appears that none of the cases provided for in Article 695-22-1 of the Code of Criminal Procedure allowing for surrender to the requesting authorities applies in this case.
Under these circumstances, a refusal to surrender Mr. X.Y. to the Polish authorities is warranted.
FOR THESE REASONS THE INVESTIGATING CHAMBER,
Having regard to Articles 695-11, 695-22-1, 695-31, 695-39, and following of the Code of Criminal Procedure,
Notifies Mr. X.Y. that:
⁃ he does not consent to his surrender pursuant to a European arrest warrant issued on July 12, 2017, for the enforcement of a sentence of 8 months’ imprisonment,
⁃ he does not waive the principle of speciality.
COURT OF APPEAL OF AIX-EN-PROVENCE
Clerk’s Office
⁃ Denies the surrender of Mr X.Y., requested by the Polish judicial authorities in execution of the aforementioned warrant.
⁃ Notes that, in accordance with the provisions of Articles 803-5 and D 594-7 of the Code of Criminal Procedure, the operative part of this judgment was translated orally through the interpreter.
Orders that this judgment shall be enforced at the direction of the Public Prosecutor, Done at AIX-EN-PROVENCE, at the courthouse, in open court, THE YEAR TWO THOUSAND AND TWENTY-ONE, ON THE THIRTIETH OF JUNE, where presided Guy PISANA, Judge acting as President of the Investigating Chamber, Bruno NEDELEC, Judge, Françoise FINON, Judge,
All three appointed to these positions in accordance with Article 191 of the Code of Criminal Procedure and who, following the proceedings, deliberated alone, in accordance with Article 200 of said Code, in the absence of the public prosecutor, the defendant, the interpreter, the attorney, and the clerk, in the presence of Denis VANBREMEERSCH, Advocate General, assisted by Lydie BADEL, Clerk.
The following have signed this judgment,
THE CLERK
THE PRESIDENT
Certified true copy
The Clerk