Kolanowski v Circuit Court In Zielona Gora

In extradition proceedings, the conduct described in a European Arrest Warrant should be interpreted generously, having regard to the court’s obligations under the statutory scheme. A deliberate failure to return a hired vehicle after defaulting on payments and being summoned to return it may satisfy dual criminality.

Oppression imposes a high burden. It is distinct from, but approaches, a breach of Article 3. The seriousness of the offences, the requested person’s medical condition and other circumstances, including evasion of sentence, must all be considered. A temporary postponement may address medical concerns where the evidence does not establish oppression.

Leszek Stanislaw Kolanowski appealed against a District Judge’s decision of 11 March 2009 which would result in his extradition to Poland to serve sentences identified in a European Arrest Warrant.

The appeal challenged the fairness of the District Judge’s conduct, the adequacy of the description of the first offence for dual criminality, and the conclusion that extradition would not be oppressive given the claimant’s heart condition and the relative seriousness of the offences. The claimant also raised a possible bail issue, but no properly supported bail application was before the court.

1. Procedural fairness. The fact that the District Judge appeared to make notes or draft parts of his judgment while listening to submissions did not indicate procedural impropriety, bias or a closed mind. That ground was rejected.
2. Dual criminality. The description of conduct in a European Arrest Warrant is to be interpreted generously, having regard to the court’s obligations under the extradition legislation. The description of the claimant’s failure to return the vehicle, after defaulting on instalments and being summoned by a person with authority to require its return, implicitly described a deliberate appropriation. It therefore satisfied the dual-criminality requirement.
3. Oppression. Oppression under the Extradition Act 2003 carries a high burden. It is not equivalent to a breach of Articles 2 or 3, although it approaches the threshold of Article 3. The court considered the claimant’s serious heart condition, the sentences imposed, the relative seriousness of the offences, his failure to surrender during a deferment of sentence, and his explanation for that failure. The evidence did not approach establishing oppression.
4. The court accepted an effective six-month postponement of extradition, corresponding to the medical advice that the claimant should not fly during that period. It was inappropriate to adjourn the appeal pending a later outpatient appointment because the evidence did not indicate a threatened serious deterioration and the respondent agreed to the postponement.
5. The appeal was dismissed. The date of extradition was postponed for six months from 8 June 2009. No bail application was determined because the relevant documents and evidence were not before the court.

• High Court (Administrative Court): dismissed the appeal against the District Judge’s decision of 11 March 2009 and postponed extradition for six months from 8 June 2009.