Kotic v District Court of Bydgoszcz, Poland [2015] EWHC 2907 (Admin)

On 15 July 2015, in a decision reported in November 2015, the Queen’s Bench Division of the High Court allowed an appeal, in part, against an order for extradition, pursuant to a ‘conviction’ European Arrest Warrant (EAW), issued by Poland to the United Kingdom to Poland, concerning Wojciech Kotic.

Mr Kotic was convicted in Poland of two offences. For the first offence, the High Court held that the dual criminality test had not been satisfied, and a discharge was ordered. However, the High Court dismissed Mr Kotic’s appeal with respect to the second offence. Mr Kotic had appealed in relation to the second offence on dual criminality grounds, and under Article 8 of the European Convention on Human Rights (ECHR).

The judgment is available here (paywall).

First Instance Decision of District Judge Ikram, 15 April 2015

On 9 April 2014, a ‘conviction’ EAW was issued for Mr Kotic’s arrest. This was certified by the UK National Crime Agency on 28 July 2014. The EAW particularised the two offences of which Mr Kotic was convicted in Poland.

With respect to the first offence, the EAW stated that Mr Kotic was convicted of “availing the renewable credit on his personal account”, in the period between 29 February 2000 and 31 March 2000, “with the purpose to obtain material benefits”, obtaining “money under false pretences”.

With respect to the second offence, the EAW stated that Mr Kotic was convicted of having, in the same period but with respect of a separate bank account and bank card: “made 93 withdrawals from automated teller machines (ATMs) and payments at shops and at fuel stations, obtaining under false pretences money in the total amount of 23.563,29 zloty”. Both offences were described as “continuing offences” during the period concerned.

For these two offences, Mr Kotic was sentenced to one year and six months’ imprisonment. On 15 April 2015, District Judge Tan Ikram ordered the extradition of Mr Kotic to Poland, in respect of both offences.

Mr Kotic appealed on two grounds:

1. The offences for which sentence for Mr Kotic’s extradition had been sought did not constitute extradition offences because they had not met the ‘dual criminality’ test.
2. There would be a disproportionate interference with his rights under Article 8 ECHR and the rights of his partner and children.

Permission to appeal was granted by Ouseley J on 19 May 2015, on the first ground. He refused permission to appeal on the Article 8 ECHR issue, “save if an appeal on the dual criminality issue were to be allowed in respect of one, but not both, of the charges.” (para 4 of the judgment).

Decision of the Queen’s Bench Division, 15 July 2015

Lord Justice Aikens and Mrs Justice Nicola Davies, sitting at the Queen’s Bench Division of the High Court, held:

1. The difficulty with the first offence, for dual criminality purposes, is that the wording makes it clear that Mr Kotic availed himself of “the renewable credit on his personal account number”. It is possible that he persuaded a cashier that he had a renewable credit facility when, in fact, that facility had been exhausted. However, this was not established beyond reasonable doubt on the wording of the terms of the EAW. Accordingly, the dual criminality test was not made out, to the criminal standard.

With respect to the second offence, there was nothing in the offence that indicated any kind of credit facility available. Moreover, the wording of the offence stated that Mr Kotic had “no available funds” on the account that is identified. The wording of that offence goes on to state that Mr Kotic managed to make 93 withdrawals and made purposed payments, “obtaining under false pretences money”. The wording “obtaining under false pretences money” is equivalent to obtaining dishonestly. The words “false pretences” must mean that Mr Kotic was doing something which he knew to be false and that he was pretending that he was entitled to obtain this money or whatever it was that he obtained at the shops or the fuel stations. The inescapable inference from those words was that Mr Kotic was dishonest, and that the 93 withdrawals would constitute the offence of theft for the purposes of an English offence.

2. Because the appeal was allowed with respect to the first offence, this triggered the permission Ousely J gave with respect to Article 8 ECHR. The findings of District Judge Ikram were not challenged: Mr Kotic was a fugitive when he left Poland; the offences were serious; he has strong family connections in the UK but does not contribute financially to his youngest child, who is a minor; and there was no “culpable delay” on the part of the judicial authority. The judge, in a decision that pre-dated the Celinski judgment, nonetheless balanced factors on either side. The decision with respect to dual criminality did not change this balance; the second offence was a serious one, which was described as “continuing offences”, carried out over 6 months, involving a large number of withdrawals from ATMs and payments to shops and fuel stations.

Appeal dismissed in respect of Article 8 ECHR. Discharge ordered with respect to the first offence. Extradition order to remain in force with respect to the second offence.