Kusnierski v District Court In Krakow Poland

Extradition should be refused for passage of time only where the statutory test is satisfied: the delay must make extradition unjust or oppressive. Serious offending, fugitive status and hardship that would arise from extradition generally do not establish that test.

Article 3 arguments require clear, cogent and compelling evidence of a real risk of ill-treatment. Article 8 family-rights arguments must be balanced against the state’s international extradition obligations and will prevail only exceptionally.

The appellant appealed against a decision of the Westminster Magistrates’ Court ordering his extradition to Poland on three European arrest warrants. The warrants concerned convictions and accusations relating to serious offences committed between 1989 and 2006.

He challenged extradition on grounds including alleged excess service of sentence, risk of ill-treatment contrary to Article 3, interference with family life under Article 8, passage of time under section 14 of the Extradition Act 2003, and the contention that the accusation warrants sought him only as a suspect. The central issue was whether any of those grounds barred extradition.

1. The appeal was dismissed. The District Judge had properly rejected the challenge based on the appellant’s alleged service of sentence. The warrant was to be preferred to the appellant’s evidence, which the District Judge had found unimpressive.
2. The Article 3 claim failed. The appellant relied on an asserted risk of assault in Polish custody because he had allegedly acted as a police informer, and on the possibility of protective solitary confinement. Following the approach referred to in Krolik and Others v Poland [2012] EWHC 2357 (Admin), the evidence needed to be clear, cogent and compelling. There was no relevant evidence meeting that threshold, or establishing a real risk of Article 3 ill-treatment.
3. The Article 8 claim also failed. The appellant’s wife was unwell and he supported a 16-year-old daughter, but the family hardship carried modest weight. In light of HH v Deputy Prosecutor for the Italian Republic, Genoa [2012] UKSC 25, the United Kingdom’s international extradition obligations had to be given substantial weight. Article 8 rights would prevail only exceptionally, and the circumstances did not meet that standard.
4. Section 14 of the Extradition Act 2003 did not bar extradition for the passage of time. The appellant was a fugitive from justice, and the delay did not make extradition unjust or oppressive. The additional hardship relied upon was not specific to the relevant warrant and added nothing beyond the rejected Article 8 case.
5. Read as a whole, the accusation warrants sought the appellant’s extradition so that he could stand trial, rather than merely for investigation as a suspect. The further argument was therefore without merit. The court also indicated that appeals should be listed promptly to prevent abuse of the extradition process. An assessment order for costs was made.

1. High Court (Administrative Court) — Kusnierski v District Court In Krakow Poland [2013] EWHC 250 (Admin): appeal against the Westminster Magistrates’ Court extradition order dismissed.