Kolasinski v District Court In Gorzow Wielkopolski, Poland

In extradition proceedings engaging family life under Article 8, delay is highly fact-sensitive. Extradition should be avoided on the interests of dependent children only in very rare cases where, allowing proportionately for those interests, a comparable domestic court would not have imposed an immediate custodial sentence. Delay in locating a person abroad is not necessarily culpable. The absence of evidence that the remaining parent cannot care for the child weighs against resisting extradition.

The appellant challenged a Westminster Magistrates’ Court order for his extradition to Poland to serve a sentence of one year, five months and 28 days for appropriating approximately £14,000. The sentence had initially been suspended and was later activated in the appellant’s absence.

The appeal alleged errors under section 21 of the Extradition Act 2003 and Article 8 of the European Convention on Human Rights. The appellant relied principally on delay and the effect of extradition on his seven-year-old son. The central issues were whether the delay was sufficiently culpable and whether the family circumstances made extradition disproportionate.

1. The appeal was dismissed. The order for extradition was upheld.
2. Delay in extradition proceedings is fact-sensitive. The periods between the suspended sentence and the European Arrest Warrant, between the warrant and its certification, and between certification and execution did not disclose seriously culpable delay. The difficulty and expense of locating a person who has moved abroad were relevant considerations.
3. The approach stated by Lord Judge CJ in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 was applied. Where extradition is resisted on the basis of dependent children’s Article 8 rights and their welfare, it should be avoided only in very rare cases if a domestic sentencing court, on broadly similar facts and allowing proportionately for the children’s interests, would nevertheless have imposed an immediate custodial sentence.
4. A custodial sentence would have been imposed in the domestic equivalent of this case. The family circumstances were not unusual, and there was no evidence that the appellant’s partner could not care for their son. Extradition was therefore proportionate.
5. Bondziul v Provisional Court of Lublin (Poland) [2013] EWHC 3648 (Admin) was distinguished on its facts and did not assist the appellant.
6. Because family proceedings were due to take place shortly afterwards, the extradition order was not to take effect until after 11 December 2014. Any further application to defer extradition would require clear evidence and would be difficult to justify.

1. Westminster Magistrates’ Court: District Judge Coleman ordered the appellant’s extradition on 10 October 2014.
2. High Court (Administrative Court): The appeal against that order was dismissed and the extradition order upheld, subject to a short deferral to permit participation in pending family proceedings.