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In re Extradition of Miroslav Tuniewicz to the Republic of Poland

April 6, 2007

IN THE MATTER OF THE EXTRADITION OF MIROSLAV TUNIEWICZ TO THE REPUBLIC OF POLAND.


The opinion of the court was delivered by: VIKTOR V. Pohorelsky United States Magistrate Judge

MEMORANDUM OF DECISION, CERTIFICATION TO THE SECRETARY OF STATE, AND WARRANT FOR COMMITMENT

The Republic of Poland seeks the extradition of Miroslav Tuniewicz pursuant to the Extradition Treaty Between the United States of America and the Republic of Poland, July 10, 1996, S. Treaty Doc. No. 105-14 (hereinafter the "Extradition Treaty"), on various charges arising from conduct alleged to have occurred in Poland in 1991 and 1992. Tuniewicz has opposed extradition on the ground that his prosecution on the charges is now time-barred under Polish law. For the reasons below, the court concludes otherwise, and finds that the prerequisites for extradition under the Extradition Treaty have been satisfied.

THE CHARGES

The documents submitted by the Polish government in support of their extradition request supply the following information about the charges for which the Polish authorities seek the extradition of Tuniewicz.*fn1 The criminal offenses arise from allegedly false documents he filed while employed as a traffic officer of the Voivodship Police Headquarters in Poland. Specifically, he is alleged to have filed documents falsely certifying that automobile accidents had occurred on five occasions in late 1991 and early 1992. The alleged purpose of the falsification was to enable the making of false insurance claims in order to obtain approximately 58,000 PLN.*fn2

The specific criminal charges lodged against Tuniewicz in Poland are found in a Decision on Presentation of Charges dated September 26, 2001.*fn3 The Decision alleges a total of ten criminal offenses, two for each of the five accidents Tuniewicz allegedly falsely certified. Thus, for each accident Tuniewicz is alleged to have committed a criminal offense in violation of article 271 section 1 and 3 of the Criminal Code, and another in violation of article 286 section 1 of the Criminal Code. Article 271 section 1 of the Criminal Code makes it a crime for a public official to issue a false document and section 3 enhances the punishment for that offense if the falsification is committed for the purpose of obtaining material or personal benefit.*fn4 Article 286 section 1 of the Criminal Code makes it a crime to cause someone to "disadvantageously dispose" of property by misleading him when that is done for the purpose of obtaining a material benefit.

THE LIMITATIONS PERIOD

Article 8 of the Extradition Treaty provides,

Extradition shall not be granted when the prosecution or the enforcement of the penalty for the offense for which extradition has been sought has become barred by lapse of time according to the law of the Requesting State.

Extradition Treaty, art. 8, annexed to Ryan Aff't as Ex. A. The applicable limitations periods in Poland with respect to the crimes charged against Tuniewicz are set forth in articles 101 and 102 of the Polish Criminal Code, and are calculated based on the potential punishment that may be imposed for given offenses. Thus, article 101 provides, in pertinent part,

Article 101. § 1. The amenability to punishment for an offence ceases, if from the time of the commission thereof the following number of years have elapsed:

. . . 2a) 15 -- when the act constitutes a misdemeanour subject to the penalty of deprivation of liberty exceeding 5 years.

Act of 6 June 1997, art. 101, § 1, annexed to Ryan Ltr. at Ex. 3. Article 102 provides for an extension of the applicable limitations period once proceedings are instituted within the initial period prescribed in article 101 as follows:

Article 102. If in the period specified in Article 101 the proceedings against a person have been instituted, the amenability to punishment for the offence specified in § 1 subsections 1-3 and committed by this person, ceases after the expiration of 10 years, and in other cases after the expiration of 5 years from the end of that period.

Act of 6 June 1997, art. 102, annexed to Ryan Ltr. at Ex. 3. Thus, read together, articles 101 and 102 provide an initial limitations period of 15 years for offenses punishable by more than 5 years of imprisonment, and if criminal proceedings for such offenses are instituted within that period then the ...


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