EAW to Poland: enforcement of a sentence rejected as the proceedings were not adversarial
Full text (anonymised):
JUDGMENT OF THE INVESTIGATING CHAMBER of 1 September 2021
7 6 B3.1.1/2021 – 2021/1706
The Investigating Chamber of the Court of Appeal of Aix-en-Provence, sitting in open court on 30 June 2021 for the hearing and on 1 September 2021 for the pronouncement of the decision.
Having regard to Articles 695-11 et seq. of the Code of Criminal Procedure,
Counsellor Bruno NEDELEC was heard on his report concerning the request for the execution of a European arrest warrant in respect of:
X. Y.
born on XXX
son of XX
Of Polish nationality
Divorced
Unemployed
Of no fixed abode
Currently detained at the remand centre in LUYNES
Subject to a provisional detention order dated 28 May 2024 issued by the judge appointed by the First President of the Court of Appeal of 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 interpreter in the Polish language, registered on the list of experts of the Court of Appeal of Aix-en-Provence, who provided her assistance whenever necessary.
SUBJECT: Application for the execution, pursuant to the provisions of Articles 695-22 et seq. of the Code of Criminal Procedure, of a European arrest warrant issued on 16 December 2015 by the Polish judicial authorities.
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The President questioned the defendant, who responded to the various questions put to him. Denis VANBREMEERSCH, Advocate General, was heard in his submissions.
Maître Guillaume DANAYS, standing in for Maître Etienne ARNAUD, counsel for the person concerned, present at the bar, was heard.
X. Y., appearing pursuant to the provisions of Article 695-29 of the Code of Criminal Procedure, was heard in his explanations and was the last to speak.
At the conclusion of the proceedings, the case was taken under advisement; the President announced that the judgment would be delivered on the FIRST OF SEPTEMBER TWO THOUSAND AND TWENTY-ONE
And on this day, the FIRST OF SEPTEMBER TWO THOUSAND AND TWENTY-ONE, the President delivered the following judgment, in open court this day, in the presence of the interpreter, X. Y. and his lawyer.
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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 16 December 2015;
Having regard to the record of the notification to the person concerned by the Public Prosecutor of the European arrest warrant and the information provided for in Article 695-27 of the Code of Criminal Procedure, dated 2 June 2021;
and the written submissions of the Public Prosecutor dated 3 and 29 June 2021;
Having regard to the hearings before the Investigating Chamber on 9 and 30 June 2021, of which minutes were drawn up;
Having regard to the documents in the proceedings from which it appears that the Public Prosecutor notified the interested parties of the hearing dates of 2, 3, 16 and 17 June 2021;
Having regard to the order of referral dated 16 June 2021;
Having regard to the written submissions filed with the Registry of the Investigating Chamber by Maître Etienne ARNAUD and endorsed by the Registrar on 8 June 2021 at 14:10 and 29 June 2021 at 15:50;
FACTS
X. Y. is the subject of a committal order issued on 2 June 2021 by the judge appointed by the First President of the Court of Appeal of Aix-en-Provence pursuant to a European arrest warrant of 16 December 2015 issued by the judge of the District Court of Gorzów Wielkopolski (Poland) for the enforcement of an eight-month prison sentence imposed by a judgment dated 10 February 2015 of the District Court of Gorzów Wielkopolski for offences of robbery with violence committed in a group on 8 April 2014 in Strzelce Krajeńskie, Lubuskie Province (Poland).
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The offences with which the person concerned is charged are described by the requesting authorities in the aforementioned arrest warrant. X. Y. is also the subject of 3 further European arrest warrants issued by the judge of the District Court of Gorzów Wielkopolski in 2015 and 2017 for the enforcement of sentences totalling approximately six years and two months’ imprisonment, relating to thefts committed between September 2013 and April 2015.
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At the hearing before the Investigating Chamber on 9 June 2021, in the presence of his lawyer, X. Y. stated
that he did not consent to his surrender and did not waive the rule of speciality. In a written submission and at the hearing, his counsel requested further information, given that the details set out in the European arrest warrant, whilst specifying that X. Y. did not attend the hearing, do not allow for determining whether the conditions laid down in Article 695-22-1 of the Code of Criminal Procedure are met in this case.
The Public Prosecutor also requested further information.
By an interim order of 16 June 2021, the Investigating Chamber ordered further information to be sought from the Polish authorities and adjourned the hearing of the case until 30 June 2021.
In a note dated 25 June 2021, the Polish authorities stated that the proceedings, in accordance with Polish law, were not adversarial.
In a written submission dated 29 June 2021 and at the hearing, the counsel for X. Y. objected to the surrender, as the latter had no knowledge of these proceedings.
The Public Prosecutor requested that the surrender be refused, in accordance with the aforementioned order
GROUNDS FOR THE DECISION:
X. Y. has acknowledged that he is the person named in the aforementioned European arrest warrant and has stated that he does not consent to his surrender and does not waive the principle of speciality.
Surrender is sought for the enforcement of an 8-month prison sentence, imposed in absentia by a criminal court, in respect of offences of theft committed as a repeat offence.
These offences are criminalised under French law under an identical criminal classification and fall within the scope of Article 695-12 of the Code of Criminal Procedure.
As the details of the European arrest warrant suggest that the conviction handed down by the Court of Gorzow Wielkopolski on 10 February 2015 was not conducted in the presence of the accused, the Investigating Chamber, by order of 16 June 2021, ordered, prior to ruling on the merits pursuant to Article 695-33 of the Code of Criminal Procedure, that further information be sought from the Polish authorities to obtain all additional information regarding the circumstances which that decision was made and whether it has become final or is still subject to appeal.
In their reply dated 24 June 2021, the Polish authorities confirmed that X. Y., who was present at the hearing on 18 December 2014 and was notified of the adjournment to the hearing at which the judgment was delivered, was not represented by a lawyer, did not receive personal service of the judgment and has no further means of appeal.
It therefore 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. In these circumstances, a refusal to surrender X. Y. to the Polish authorities is required.
ON THESE GROUNDS
THE INVESTIGATING CHAMBER,
Having regard to Articles 695-11, 695-22-1, 695-31, 695-39 et seq. of the Code of Criminal Procedure,
– Takes note that X. Y.:
does not consent to his surrender pursuant to a European arrest warrant issued on 16 December 2015 for the enforcement of a sentence of 8 months’ imprisonment,
• does not waive the principle of speciality.
• Rejects the request for the surrender of X. Y., made by the Polish judicial authorities in execution of the aforementioned warrant.
– Orders the release of X. Y., provided he is not in custody for any other reason.
– Notes that, in accordance with the provisions of Articles 803-5 and D594-7 of the Code of Criminal Procedure, the operative part of this judgment has been read out orally through the interpreter.
Orders that this judgment shall be enforced at the instigation of the Public Prosecutor General.
DONE AT AIX-EN-PROVENCE, at the courthouse in open court, ON THE FIRST OF SEPTEMBER TWO THOUSAND AND TWENTY-ONE;
COMPOSITION OF THE COURT DURING THE HEARINGS AND DELIBERATIONS
Guy PISANA, Judge acting as President of the Chamber of Investigation
Bruno NEDELEC, Judge,
Françoise FINON, Judge,
All three appointed to these functions in accordance with Article 191 of the Code of Criminal Procedure and who, at the conclusion of the hearing, deliberated alone, in accordance with Article 200 of the said Code, in the absence of the Public Prosecutor, the defendant, the interpreter, the lawyer and the clerk.
ON DELIVERANCE, the President read out the judgment in accordance with the provisions of Articles 199(5) and 200 of the Code of Criminal Procedure.
PUBLIC PROSECUTOR
Denis VANBREMEERSCH, on the delivery of the judgment.
Advocate General, present at the hearing and at the pronouncement of the judgment.
CLERK
Lydie BADEL, clerk, present at the hearing,
Véronique BASSET, administrative assistant having taken the oath of a clerk, present at the pronouncement of the judgment.