Kaliszewicz v Regional Court of Bialystok

On an extradition appeal, a new human-rights ground cannot ordinarily be raised where the appellant knew the relevant facts and could have advanced the ground before the extradition judge. The European arrest warrant scheme rests on mutual confidence in the requesting state’s legal system and prison facilities. A claimed risk from non-state actors will not bar extradition without evidence that the requesting state cannot provide adequate protection. A systemic condition capable of preventing extradition requires circumstances so serious, and supported by international consensus, that removal would be unsafe. The court held that this threshold had not been reached, or even approached, in respect of Poland.

A Polish regional court issued a conviction European arrest warrant seeking the appellant’s extradition to serve a two-year sentence for offences committed in 2005. The warrant was certified by SOCA, and the City of Westminster Magistrates’ Court ordered extradition on 29 November 2011. No bars to extradition were raised at that hearing.

On appeal, the appellant relied on Articles 3 and possibly 2 of the European Convention on Human Rights. He alleged that debts and threats from non-state actors in Poland meant that his life would be at risk if returned to a Polish prison. The central issues were whether the new ground was available at the extradition hearing and whether the alleged risk could amount to an effective bar to extradition.

1. Appeal dismissed. The appellant had been represented at the extradition hearing but had not raised the alleged threats or adduced evidence about them. Under the principle stated in Fenyvesi, a new ground is unavailable on appeal where the appellant knew the relevant facts and could have relied on them before the District Judge.
2. The Article 3 argument could not in any event succeed. The European arrest warrant scheme for category 1 territories operates on mutual confidence in the requesting state’s legal systems and prison facilities.
3. That confidence may be displaced in an exceptional case where, pursuant to an international consensus, conditions in the requesting state are so serious that it would be unsafe to remove or extradite an individual. The court referred to the situation in Greece in the different context considered in MMS v Belgium and Greece.
4. The alleged danger came from non-state actors. The appellant produced no evidence, and made no assertion, that the Polish state could not protect him in prison or outside prison against unlawful acts by others. The necessary systemic threshold had not been reached, or even approached, in Poland. Similar allegations were commonplace and had not succeeded in preventing extradition.
5. The appeal was dismissed.

1. City of Westminster Magistrates’ Court: District Judge Evans ordered the appellant’s extradition on 29 November 2011.
2. High Court (Administrative Court): The appeal was dismissed on 31 January 2012.