The High Court has refused to grant consent for the execution of imprisonment sentences imposed by another EU Member State where the person affected had not been informed that, if they failed to attend trial, a decision could be handed down in absentia (i.e. a decision would be made where one of the parties is not present at the proceedings).
The District Court of Sosnowiec, Poland made a request under European arrest warrant and surrender procedures between EU member states for the High Court to consent to the execution of two sentences of imprisonment imposed on the respondent, Mr. Ryszard Szlachikowski, in Poland.
Mr. Ryszard Szlachikowski challenged the granting of consent on four grounds, arguing that:
Ms. Justice Stack was satisfied that the first and third grounds failed, as there was evidence of corresponding offences and no proof of abuse of process, and noted the fourth ground had been dismissed in a previous case.
However, the judge requested further information to show compliance with section 45 of the European Arrest Warrant Act 2003. She considered this issue in depth, noting at paragraphs 7 – 8 of her judgment:
“The substance of what must be considered on an application of this kind is not materially different from the matters which must be considered on an application for surrender… if a court would not have approved surrender in respect of particular offences, then neither would it grant consent to the subsequent prosecution […] for those offences.”
Stack J. considered European legislation that a court could refuse to execute a European Arrest Warrant if the person subject to the warrant was not informed that a decision could be handed down if they did not appear for trial.
The Respondent was not personally informed of the date and time of trial, and was not guaranteed a full rehearing. The judge pointed out there was a high risk that a conviction would be enforced despite the accused not having unequivocally waived their right to attend the trial. Thus, Stack J. held that the Polish District Court had to show the basis on which it was entitled to enforce the in absentia decision.
The Polish District Court relied on the conditions in Article 4a of the Framework Decision to show that it was entitled to enforce the decision, claiming that the respondent received information of the scheduled date and place of the trial and that he was informed a decision would be handed down in absentia. The judge found it was necessary to consider whether the information provided by the Polish District Court to the respondent sufficiently satisfied the conditions of the Article.
Stack J. was satisfied that the respondent was informed of the date and place of the trial, even if he did not collect correspondence from the Polish authorities which expressed this information. However, the judge held the Polish District Court made a significant omission in failing to inform the Respondent of the possibility of an in absentia decision, which would have been material to any voluntary waiver of rights to attend trial. Thus, the judge refused the application for consent.
Click here for the full judgement.