Bail Conditions and The Issue of Its Counting into An Imprisonment Sentence in The Requesting State in Terms of the European Arrest Warrant

With her bilateral experience, Aleksandra Kowalik expands on her article from the previous month; Lawyer Monthly’s January edition saw Aleksandra discussing the history of the European Arrest Warrant (EAW) and where she thinks improvements could be made. This month, she expands on this, but discusses the similarities between the UK and Poland and the weakness of Polish democracy; she explains how the Polish democracy contradicts itself by recognising regulations regarding bail conditions as a depravation of liberty in the UK, despite the fact that Polish domestic rules treat the same conditions as equal to imprisonment.

Having an opportunity to assist Clients (Requested Persons) in both jurisdictions (British and Polish) in terms of European Arrest Warrant proceedings, the issue of the requesting state sentence reduction due to the bail (electronic tag) period in The United Kingdom appears frequently, especially in relation to the 8216/1/08 REV 1 COPEN 70 EJN 26 EUROJUST 31- Final version of the European handbook on how to issue a European Arrest Warrant; this determines the proportionality principle to be implied when deciding if EAW should be issued.

Consequently, the matter of a legal definition and approach towards the feature of the bail condition, namely the electronic curfew imposed by a requested state, is essential for the requesting state in terms of a possibility to withdraw EAW; this is applicable in cases of the tag period being covered in at least half of the imposed imprisonment sentences, or the temporary detention order (issued in a non- conviction EAWs).

The ground for a further discussion is a judgment of a European Court (Fourth Chamber) issued on 28^th July 2016 (case ref no.: C‑294/16 PPU). The case has proceeded upon the request for a preliminary ruling under Article 267 TFEU from the District Court in Łodz – Srodmiescie (Poland); it was made by decision of 24 May 2016, received at the Court on 25 May 2016, in the proceedings JZ versus the District Prosecution Service in Lodz – Srodmiescie.

Respectfully to the extract of the judgment, the above-mentioned request for a preliminary ruling concerns the interpretation of Article 26(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).

The request has been made in proceedings between JZ (Requested Person) and the Prosecutor for the District of Lodz- Poland; the request by JZ concerned the deduction from the total period of the custodial sentence imposed on him in Poland, during which he was made subject, by the Member State which executed the European Arrest Warrant, namely in the UK to the electronic monitoring of his place of residence, in conjunction with a curfew.

The discussed and currently leading judgment is essential, as Polish Judicial Authority always dismisses applications for a sentence reduction based upon the period of the electronic tag during the EAW proceedings.

In case of any change of the Polish authorities’ approach, the EAW withdrawal would be admissible what could appear extremely helpful in relation to minor offences.

The merits of a raised issues in terms of the request to the Court were as follows:

Article 26, which is in Chapter 3 of Framework Decision 2002/584 and is entitled ‘Deduction of the period of detention served in the executing Member State’, states:

1. The issuing Member State shall deduct all periods of detention arising from the execution of a European Arrest Warrant, from the total period of detention to be served (in the issuing Member State) as a result of a custodial sentence or detention order being passed.
2. To that end, all information concerning the duration of the detention of the requested person, on the basis of the EAW, shall be transmitted by the executing judicial authority or the central authority designated under Article 7, to the issuing judicial authority at the time of the surrender.

Relevant Polish law raised in terms of the request:

Article 63(1) of the Polish Criminal Code of 6 June 1997 with further amendments, provides that periods of de facto deprivation of liberty are to be deducted from the sentence, rounded up to a full day, with one day of de facto deprivation of liberty being equal to one day of deprivation of liberty, and two days of restriction of liberty to two day-fines. For the purposes of Article 63(1), a day means a period of 24 hours calculated from the time of the de facto deprivation of liberty.

Under Article 607f of the Code of Criminal Procedure of 6 June 1997 with the further amendments, which implies article 26(1) of Framework Decision 2002/584 into Polish law, the periods of de facto deprivation of liberty served in the Member State executing the arrest warrant for the purpose of the surrender, are to be deducted from the sentence which has been handed down or is being served.

A brief draft of the set facts:

On 18 June 2014, JZ (Requested Person) was arrested in the United Kingdom under the certified European Arrest Warrant, and has stayed detained until 19^th June 2014 when on 25^th June 2015 has been released on bail upon a decision of a WMC designated judge.

The bail conditions were as follows:

• £2000 of deposit;
• Staying at the prescribed address between 10.00 pm and 07.00 am;
• RP has been electronically monitored;
• Report to a specified Police Station, 3 times a week from 10.00 am to noon;
• Prohibition from applying for a travel document and,
• Keeping the mobile phone permanently switched on.

Those conditions have stayed applied until 14 May 2015 when RP has been brought to the Polish justice.

Polish Judicial Authority reduced RP’s sentence taking into account only his stay in custody.

The case is an example of the approach and interpretation of the article 26- chapter 3 of Framework Decision 2002/584 and the “detention” definition.

The Court concluded in para 21 that in the light of recital 12 of Framework Decision 2002/584 and article 6 TEU, Article 26(1) of that Framework Decision must be interpreted in the light of Article 5 of ECHR referring one’s right to liberty and security. Consequently, the professionals must or should at least raise an issue to be discussed and decided if the electronic tag, an obligation to stay at the specified address, reporting to the police station and the absolute prohibition for switching off their mobile, should not be considered as a limitation or deprivation of liberty.

The above-mentioned approach could be confirmed by the Polish regulations namely Executive Criminal Code, in particular article 43b which defines the electronic monitoring itself. It must be strongly highlighted that the electronic tag is a sort of separate punishment regulated by the Polish Criminal Code. Additionally, in case of imposing the imprisonment sentence up to maximum one year convicted/ defendant, can lodge an application for the imprisonment sentence conversion into the electronic monitoring supervision.

The standard conditions of that sort of a punishment is staying at the prescribed place at the prescribed time (art 43b para 3.1 Executive Criminal Code) within the limited distance.

It seems the general requirements and features of the Polish electronic monitoring are the same as the bail conditions usually imposed in The United Kingdom.

What is more astonishing, the Polish legislator counts one day of the electronic monitoring as equal to one day of a detention, therefore the two- limb approach of the Polish authorities to the same legal factors seems to create some kind of a schizophrenic and unreasonable legal reality.

Consequently, taking into account the outcome of the judgment pointed in para 57 clearly stating that “the answer to the question referred is that Article 26(1) of Framework Decision 2002/584 must be interpreted as meaning that measures such as a nine-hour night-time curfew, in conjunction with the monitoring of the person concerned by means of an electronic tag, an obligation to report to a police station at fixed times on a daily basis or several times a week, and a ban on applying for foreign travel documents, does not, in principle, have regard towards the type, duration, effects and manner of implementation of all those measures; it is restrictive as to give rise to a deprivation of liberty comparable to that arising from imprisonment and thus to be classified as ‘detention’ within the meaning of that provision, which it is nevertheless for the referring court to ascertain”. In my point of view this has no legal ground in order to be considered as a justified statement.

The rule of law has been established to provide the stabilisation and certainty among the societies instead of an unlimited and wild rule of nature; the hypocrisy implemented into legal approach and interpretation to the same legal issues simply fails to comply with the rule of law certifying the weakness of a democracy in a country.