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CHAPTER 65B. MOTION OF A EUROPEAN UNION MEMBER STATE TO SURRENDER A REQUESTED PERSON PURSUANT TO A EUROPEAN ARREST WARRANT.

Art. 607k. Purposes of surrender of a requested person.

§ 1. The surrender of a person requested pursuant to a European arrest warrant, hereinafter referred to as the “European warrant”, from the territory of the Republic of Poland is carried out for the purpose of conducting criminal proceedings or executing penalty of imprisonment or other measure involving the deprivation of liberty against such a person within the territory of another Member State of the European Union.

§ 2. The public prosecutor, upon receiving a European warrant, examines the person against whom the warrant was issued, informing him of its contents and of the possibility of giving his consent to the surrender or consent to waive Article 607e § 1. Thereafter, the public prosecutor files the case with a local circuit court.

§ 2a. The arrest of a person requested pursuant to a European arrest warrant may also take place on the basis of a record in Schengen Information System or in the database of International Criminal Police Organisation. Articles 244-246 and 248 apply accordingly.

§ 3. On the motion of the public prosecutor, the circuit court may impose detention on remand, defining its period for the time necessary to surrender the requested person. The total period of detention on remand may not exceed 100 days. The final and binding sentence, or another decision constituting grounds for deprivation of liberty, rendered against the requested person in another Member State of the European Union constitutes separate autonomous grounds from imposing detention on remand.

§ 3a. Before receiving a European warrant, the court may apply detention on remand for a period not exceeding seven days with respect to the requested person, if the competent judicial authority which issued the warrant so requested by entering a record into Schengen Information System or into the database of International Criminal Police Organisation guarantying that the final and binding sentence, or another decision constituting grounds for deprivation of liberty, is rendered against the requested person.

§ 4. If a separate provision of Polish law stipulates that the prosecution of the person against whom a European warrant was issued is dependent upon the permission of a competent authority, Article 13 applies before filing the case with the court.

§ 5. If, simultaneously to the issue of a European warrant, a European Union Member State demands that the requested person be questioned, such a person should be questioned before the examination of the warrant. The hearing is conducted with the attendance of the person indicated in the European warrant. Article 588 § 4 applies accordingly.

Art. 607l. Adjudication.

§ 1. The court adjudicates with respect to the surrender and detention on remand in a hearing, in which the public prosecutor and the defence counsel may participate.

§ 1a. When notifying the prosecuted person of the hearing referred to in § 1, the court serves the European warrant together with the translation obtained from the public prosecutor. If due to particular circumstances it is not possible to prepare the translation before the hearing, the translation is ordered by the court. The court may limit itself to the notification of the prosecuted person of the contents of the European warrant if it does not hinder the realisation of this person’s rights, including those mentioned under § 2.

§ 2. If the requested person expresses such a wish, the court will take from him and record in the transcript the declaration of consent to the surrender or of consent to Article 607e § 1 not being applied. The declaration may not be withdrawn, of which fact the requested person should be advised.

§ 3. The decision of the court on surrender is subject to interlocutory appeal, which is filed within three days of the publication of the decision and, if the prosecuted person is deprived of liberty and has not been brought to the court hearing, of its being served. Article 252 applies accordingly.

§ 4. The Minister of Justice shall define by way of a regulation the form of the instruction for a person requested by a European warrant, informing him of his rights in case of arrest:to obtain information on the contents of the warrant, to consent to the surrender, to make statements concerning the surrender, to be assisted by a defence counsel, to provide explanations and to refuse providing explanations, to review the files in the part concerning the reasons for the arrest, to obtain access to the medical first aid, as well as of the rights specified in in § 3, in Article 72 § 1, Article 78 § 1, Article 261 § 1, 2 and 2a, Article 612 and of the contents of Article 607k § 3 and 3a, bearing in mind also the necessity of making the instruction comprehensible to the persons not assisted by an attorney.

Art. 607m. Decision on surrender, time limits.

§ 1. The decision on surrender is issued by the circuit court within 40 days of the arrest of the requested person. If the requested person makes the declaration referred to in Article 607l § 2, this time limit is of three days and starts running from the date on which the declaration was made.

§ 1a. Surrender proceedings should be concluded in a final manner within 60 days of the arrest of the requested person or within 10 days of the date, on which the declaration referred to in Article 607l § 2 is made.

§ 2. In particularly justified cases, when the time limits referred to in § 1a cannot be observed, surrender proceedings should be concluded in a final manner within 30 days of the expiry of the above time limits. The judicial authority, which issued the European warrant should be informed of the delay and reasons thereof.

§ 3. In the case referred to in Article 607k § 4, the time limits referred to in § 1 and 2, will start running of the day that the permission was issued.

Art. 607n. Surrender of a requested person.

§ 1. A requested person, against whom a final and binding decision on surrender was issued, is surrendered to a competent judicial authority of the issuing State no later than within seven days of the day on which the decision on surrender becomes final and binding.

§ 2. If the surrender of the requested person within the time limit referred to in § 1 is not practicable due to an event of force majeure or a danger to the life or health of this person, the requested person is surrendered to a competent judicial authority of the issuing State no later than within 10 days of the newly fixed time limit.

§ 3. If the issuing State fails to take a person liable to surrender into custody within the time limits laid down in § 1 or 2, the immediate release of such person is ordered, unless he is deprived of liberty in another case.

Art. 607o. Postponement of the surrender.

§ 1. If criminal proceedings are conducted in Poland against a requested person for an offence other than that indicated in the European warrant, or this person is to serve the penalty of imprisonment for such an offence in Poland, the court, while issuing the decision on surrender, may postpone its execution until the criminal proceedings in Poland are concluded or penalty of imprisonment is served.

§ 2. In the situation referred to in § 1, the court, having notified the issuing authority thereof may, on a motion of the issuing authority, temporarily surrender the requested person under conditions specified in an agreement concluded with this authority. Such an agreement is drawn up in writing and defines the conditions of surrender, and in particular the date, on which the requested person is returned.

Art. 607p. Obligatory reasons for denial of execution of the warrant.

§ 1. The execution of a European warrant will be denied if:

1) the offence on which the European warrant is based, where Polish criminal courts have jurisdiction to prosecute the offence, is covered by amnesty,

2) a final judicial decision was issued against the requested person in connection with the same offence and, in the case of sentencing for the same offence, the requested person is either serving or has served his penalty or, according to the laws of the State, where the sentence was passed, the penalty cannot be executed,

3) a final and binding decision on surrender to a different Member State of the European Union was issued against a requested person,

4) the person who is the subject of the European warrant may not be held criminally responsible for the acts on which the arrest warrant is based, owing to his age,

5) it would violate human and citizen freedoms and rights,

6) the warrant was issued in connection with a political offence committed without the use of violence.

§ 2. If a European warrant was issued against a requested person who is a Polish citizen, the warrant may be executed on the condition that the act on which it is based has not been committed in the territory of the Republic of Poland or on a Polish aircraft or vessel and that it constitutes an offence under the law of the Republic of Poland or that it would constitute an offence under the law of the Republic of Poland had it been committed in the territory of the Republic of Poland, both at the time of its perpetration and at the time, when the European warrant was submitted.

Art. 607r. Facultative reasons for denial of execution of the warrant.

§ 1. A judicial authority may refuse to execute a European warrant, if:

1) the act on which the European warrant is based, other than that mentioned in Article 607 w, does not constitute an offence under Polish law,

2) criminal proceedings are pending against the requested person in Poland for the same offence on which the European warrant is based,

3) a final and binding judicial decision refusing to institute criminal proceedings, discontinuing or concluding the proceedings was issued with respect to the same offence on which the European warrant is based,

4) under Polish law the statute of limitations for prosecution or execution of penalty has expired and the offence falls within the jurisdiction of Polish courts,

5) the European warrant relates to an offence which, according to Polish law, was committed in whole or in part in the territory of the Republic of Poland, or on a Polish aircraft or vessel,

6) the offence to which the European warrant relates is punishable in the issuing State with a penalty of life imprisonment or other measure involving deprivation of liberty without the possibility of applying for reduction.

§ 2. The provisions of § 1 point 1 do not apply if the act does not constitute an offence because Polish law does not impose the same kind of tax or duty or does not include a tax, duty, customs and exchange regulation of the same kind as the law of the issuing State.

§ 3. The judicial authority may also refuse to execute a European warrant issued for the purpose of executing a penalty or measure involving the deprivation of liberty, imposed in the absence of the requested person, unless:

a) the requested person is summoned to participate in the proceedings or otherwise notified of the time and place of the trial or hearing and instructed that failure to attend does not impede the issue of the judgment or if the requested person is assisted by a defence counsel, who attended the hearing or trial,

b) after the judgment is served on the requested person together with the instruction of his rights, the time limit and manner of submitting of a petition in the issuing State to conduct new court proceedings in the same case and with his participation, the requested person has failed to submit such a petition within the prescribed time limit or declared that he does not object to the judgment,

c) the authority, which issued the European warrant assures that immediately after the requested person was surrendered to the issuing State, he is served a copy of the judgment with the instruction of his rights, the time limit and manner of submitting of a petition in the issuing State to conduct new court proceedings in the same case and with his participation.

Art. 607s. Right of asylum.

§ 1. A European warrant issued for the purpose of executing a penalty of imprisonment or other measure involving deprivation of liberty against a requested person who is either a Polish citizen or was granted the right of asylum in the Republic of Poland, shall not be executed, unless the requested person consents to the surrender.

§ 2. The judicial authority may also refuse to execute a European warrant if it was issued for the purpose referred to in § 1 and the requested person either resides or permanently stays in the territory of the Republic of Poland.

§ 3. While denying the surrender for the reasons indicated in § 1 or 2, the court rules with respect to the execution of a penalty or measure imposed by the judicial authority of the issuing State.

§ 4. In the decision referred to in § 3, the court determines the legal classification of the act pursuant to Polish law. If the penalty or measure imposed by the issuing State exceeds the prescribed scale of penalties for the offence under Polish law, the court determines the penalty or measure to be executed according to Polish law to the extent corresponding to the upper level of the prescribed scale, taking into consideration the period of actual deprivation of liberty abroad and penalty or measure executed. If documents or information necessary for the execution of a penalty in the territory of the Republic of Poland have not been attached to the European warrant, the court defers the hearing and addresses a competent authority of the issuing State to provide such documents or information.

§ 5. The penalty will be executed pursuant to Polish law. The provisions of Chapter 66 g apply accordingly, expect for Article 611tg, 611ti § 2 and 3, Article 611tk, Article 611tm, Article 611to § 2 and Article 611tp.

Art. 607t. Conditional surrender.

§ 1. If the European warrant is issued for the purpose of prosecuting a Polish citizen or a person who was granted the right of asylum in Poland, this person may be surrendered upon the condition that, subject to this person’s consent, he will be returned to the territory of the Republic of Poland after the proceedings in the issuing State were finally concluded.

§ 2. If the person referred to in § 1 was sentenced to a penalty of imprisonment or to a measure involving the deprivation of liberty, Article 607s § 3-5 apply accordingly.

Art. 607u. Instruction of the right to request the copy of the judgment.

If a European warrant was issued for the purpose of executing a penalty or a measure involving deprivation of liberty imposed in the conditions defined in Article 607r § 3 letter c, the requested person is instructed of his right to request a copy of the judgment. The issuing State is immediately notified of the request for a copy of the judgment having being submitted and, after the judgment is received, it will be served on the requested person. The submission of the request does not halt the execution of the European warrant.

Art. 607w. Lack of legal qualification in Poland.

If a European warrant concerns a person who is not a Polish citizen, the fact that the act does not constitute an offence under Polish law is no impediment to the execution thereof, if it is based on an offence punishable in the issuing State by a penalty of imprisonment of at least three years or a detention order of at least the same duration, such as:

1) participation in a criminal organisation or group, whose purpose is to commit offences,

2) terrorism,

3) trafficking in human beings,

4) offences against sexual freedom and morality of minors,

5) manufacturing, processing, trafficking and smuggling drugs, their precursors, substitutes or psychotropic substances,

6) illegal trafficking in weapons, munitions, explosives or radioactive materials,

7) bribery and corruption,

8) fraud,

9) introducing into financial trading the assets coming from illegal or undisclosed sources,

10) counterfeiting money and other means of payment and trading therein,

11) offences against the security of data gathered, stored, processed or transmitted in an IT system,

12) offences against natural environment, including trading in endangered species of animals and plants,

13) facilitation of illegal entry and residence,

14) homicide,

15) grievous bodily harm,

16) illegal trade in human organs and tissue,

17) illegal deprivation of freedom,

18) abducting a human being for ransom,

19) taking and holding of hostages,

20) offences committed for reasons of nationality, ethnicity, race, religion or atheism,

21) armed robbery or robbery committed with threat of using arms,

22) armed extortion or extortion committed with threat of using arms,

23) illicit trafficking in cultural goods,

24) swindling,

25) counterfeiting and trafficking in counterfeit products,

26) forgery of documents and trafficking therein,

27) trafficking in hormones and similar substances,

28) trafficking in stolen vehicles,

29) rape,

30) arson,

31) offences within the jurisdiction of the International Criminal Court,

32) unlawful seizure of aircraft or ship,

33) sabotage.

Art. 607wa. Seizure and surrender of evidence.

§ 1. A competent court or public prosecutor, on a motion of a judicial authority of the issuing State, seizes and surrenders objects acquired as a result of the offence or used or intended to be used to commit an offence, as well as property which may be produced as evidence in the case, such as objects, correspondence, messages, lists of telephone calls or other transfers of information, data stored in an information system or on a storage device, including correspondence sent by e-mail.

§ 2. Evidence and objects referred to in § 1 are also seized and surrendered if the European warrant cannot be executed because the requested person has died or gone into hiding.

§ 3. While surrendering the objects referred to in § 1 their return may be reserved, especially if they should be returned to the aggrieved party or to another entitled entity staying in the territory of the Republic of Poland.

§ 4. Provisions of Chapter 62b apply accordingly.

Art. 607x. Joint examination of warrants.

§ 1. If another European warrant concerning the same person, issued by a judicial authority of another Member State, is filed before the decision of the first instance on surrender is issued, the court examines both European warrants jointly. Deciding the surrender of the requested person to a given State, the court considers the circumstances of each case, the seriousness of the each offence and the place where the offences were committed, as well as the order of issue of European warrants and their purposes.

§ 2. If another European warrant concerning the same person is filed after the decision of the first instance with respect to the previous one is issued, the court postpones the examination of the subsequent European warrant until after the decision becomes final and binding.

§ 3. If the appellate court reverses the decision mentioned in § 2 and refers the European warrant to the first instance for re-examination, the provisions of § 1 apply accordingly.

Art. 607y. Circumstances of suspension and discontinuation.

§ 1. If a European warrant and a motion for extradition to a third State are submitted with respect to the same requested person, the court, after having examined the European warrant, decides on the admissibility of its execution, suspends the proceedings and notifies the Minister of Justice of the decision.

§ 2. If the Minister of Justice decides that a person against whom a European warrant was issued should be extradited to a third State, the proceedings concerning the European warrant is discontinued. If the extradition is refused, the court resumes the suspended proceedings and issue a decision on surrender.

Art. 607z. Request for supplementary information.

§ 1. If information provided by the issuing State is insufficient to decide on the surrender of the requested person, the court requests the judicial authority that issued the European warrant to furnish supplementary information within a specified time limit.

§ 2. If the time limit referred to in § 1 is not observed, the European warrant is examined on the basis of the initially received information.

Art. 607za. Competence of the court.

§ 1. A motion of a competent judicial authority of the issuing State for consent for the prosecution or execution of penalty of imprisonment or measure involving deprivation of liberty for offences predating the surrender, or for consent to a further surrender, is heard by the circuit court which ruled with respect to the surrender. Article 607b, 607p, 607 r, 607s § 1 and 2 and Article 607z applies accordingly.

§ 2. The court rules on the motion mentioned in § 1 within 30 days of the receipt thereof.

Art. 607zb. Permission for transport.

§ 1. At the motion of the executing State, the Minister of Justice grants permission for the transportation through the territory of the Republic of Poland of the person requested by a European warrant.

§ 2. A motion for the permission, referred to in § 1, contains:

1) the denomination of the requesting authority,

2) the date and place of issue of the European warrant,

3) identity details and citizenship of the requested person,

4) a description and legal classification of the offence,

5) a brief description of the factual circumstances of the case.

§ 3. If the requested person is a Polish citizen or was granted asylum in the Republic of Poland, the permission referred to in § 1 may be issued provided that this person, after the proceedings were concluded, is surrendered for the purpose of serving the penalty of imprisonment or a measure involving the deprivation of liberty in the territory of the Republic of Poland.

§ 4. In case of transportation by air without a scheduled landing, it is sufficient to inform the Minister of Justice of the transportation of a requested person over the territory of the Republic of Poland. However, if an unscheduled landing occurs, the executing State immediately provides the information referred to in § 2. The provision of § 3 applies accordingly.

Art. 607zc. Referral to a competent authority.

If the court to which the European warrant was addressed, does not have the jurisdiction to initiate the procedure, it refers the warrant to a competent judicial authority and notify thereof the proper judicial authority which issued the European warrant.