Niescier v Circuit Court of Legnica III Criminal Department, Poland

In extradition proceedings, a recall to prison after conditional release is not a fresh sentence for the original offence where it follows an alleged breach of a release condition. The court must assess the information supplied by the requesting state as it stands. Extradition should be refused under section 21 of the Extradition Act 2003 only where there is an extant or impending human-rights violation, not merely because a domestic procedural complaint may later arise. A possible remedy in the requesting state, or ultimately in Strasbourg, may prevent a violation from being established at the extradition stage. The court also expressed doubt about whether Article 5(4) applies to recall following breach of a licence condition during a determinate sentence.

The claimant appealed against a decision permitting his extradition to Poland. He had received a 22-month sentence for arson by recklessness, was conditionally released after serving part of it, and was later recalled to serve the balance after failing to obtain authority to remain in England.

The court had adjourned the appeal to obtain further information under Article 15 of the Framework Decision. The supplemental information stated that the recall followed breach of probation and related conditions, and that an out-of-time appeal was available under Article 16(1) of the Polish Penal Code. The central issues were whether the recall amounted to resentencing contrary to Article 7 of the European Convention on Human Rights, and whether the arrangements disclosed a violation of Article 5(4).

1. Appeal dismissed. Extradition was permitted. The information from the Polish court established, on its face, that the claimant had been recalled for breach of a condition of conditional release, namely remaining outside Poland without the sentencing court’s authority. He had not been resentenced for the same offence after completion of the original sentence. Article 7 of the European Convention on Human Rights was therefore not engaged on that basis.
2. The court was required to take the requesting court’s supplemental account as it stood. It declined to determine whether notice of the Polish hearings had in fact been properly served. Article 16(1) of the Polish Penal Code permitted an out-of-time appeal where there was a sound reason or excuse for failing to appeal in time, provided the appeal was brought within seven days after the impediment ended.
3. That potential domestic remedy meant there was no proof of an existing or impending Convention violation on return. Any failure of service, and any application to reopen or reverse the recall, were matters for the Polish courts. A later failure to obtain relief because of delay or another domestic-law issue would not itself establish a human-rights issue for section 21 of the Extradition Act 2003.
4. On Article 5(4), Lord Justice Sedley accepted for the purposes of argument that recall to prison might constitute a material loss of liberty, while recording doubt about the proposition. Mr Justice Collins stated that he was far from persuaded that Article 5(4) applied to recall after an alleged breach of a licence condition during a determinate sentence. The issue did not need to be finally decided because no ostensible or presumptive violation was shown in any event.
5. The court also extended the domestic time limit for hearing the appeal under CPR 52PD22.6(a)(iv).

• High Court (Administrative Court): The court had previously adjourned the extradition appeal to obtain further information from the Polish court. On the resumed hearing, it dismissed the appeal and permitted extradition.