Kaczanowski v The District Court of Zamosc, Poland

Where a person was sentenced in absentia but was later informed of the sentence and his appeal rights, an out-of-time appeal and subsequent failure to pursue available remedies may amount to abandonment of the right to challenge the absentia proceedings under section 20 of the Extradition Act 2003.

An alleged Article 6 defect arising from the participation of judicial assessors does not necessarily bar extradition where the requested person can seek reopening in the requesting state and the court can assume that remedy will be fairly considered. Extradition may remain appropriate even where only a short period of imprisonment remains.

The appellant appealed under section 26 of the Extradition Act 2003 against a District Judge’s order for his extradition to Poland to serve a 12-month sentence for theft or commercial burglary.

He had not attended the original sentencing hearing. He later received notice of the sentence and his appeal rights, lodged an appeal out of time, and did not pursue a further opportunity to appeal. He argued that section 20 was not satisfied and that the participation of Polish assessors breached Article 6 of the European Convention on Human Rights. He also relied on the fact that much of the sentence had already been served in custody in England.

1. Appeal dismissed. The requirements of section 20 of the Extradition Act 2003 were satisfied. Even assuming that the appellant was not at fault for failing to attend the original hearing, he had been informed of the sentence and his appeal rights. His failure to pursue those rights placed him in the same position as a person who had chosen not to attend. His section 20 objection was therefore unsustainable.

2. The Article 6 argument concerned the participation of assessors at the hearing which increased the agreed sentence from 10 to 12 months. The decision in Urban v Poland, application no. 23614/08, recognised that Polish law permitted criminal proceedings to be reopened where that need resulted from a decision of an international body acting under a ratified international agreement.

3. Article 540(3) of the Polish Code of Criminal Procedure provided an available route for the appellant to seek reopening on the basis that the assessors should not have participated. The court was entitled to assume that the Polish court would deal fairly with such an application after return. The availability of that remedy meant that section 21 and the alleged human-rights breach did not preclude extradition.

4. The appellant had no complaint about the 10-month sentence and had served approximately nine months of the outstanding period in English custody. Nevertheless, sufficient time remained to make extradition appropriate. The remaining practical question, including the cost of return, was for the Polish authorities.

• High Court (Administrative Court): On an appeal under section 26 of the Extradition Act 2003, Mr Justice Collins dismissed the appeal against the District Judge’s extradition order.
• District Judge: On 26 March 2012, District Judge Daphne Wickham ordered extradition to Poland to serve a 12-month sentence.