Lezon v Regional Court In Tarnow, Poland

In an extradition case based on convictions already obtained, the requested person must establish on the balance of probabilities that the trial and appeal process was flagrantly unfair. If that high threshold is met, surrender may be barred because detention following such a process would risk breaching Article 5 of the European Convention on Human Rights.

The use of Polish judicial assessors, without more, does not establish a flagrant denial of justice, particularly where convictions were reviewed by judges with security of tenure. A person’s past assistance to authorities is not a relevant factor in the Article 8 proportionality balance. Delay in executing a European Arrest Warrant carries no weight where the requested person was a fugitive and the requesting authorities were not shown to have been dilatory.

The appellant challenged an order for his extradition to Poland under Part 1 of the Extradition Act 2003. He had been convicted and sentenced in Poland for seven fraud offences after trials in his presence. He argued that the proceedings were unfair because judicial assessors had been involved and because a prosecutor, later convicted of corruption, might have influenced the proceedings. He also relied on Article 8, referring to his family life, his assistance to the authorities in the prosecutor’s case and delay following an earlier European Arrest Warrant.

The District Judge rejected both Convention arguments and ordered extradition. The Administrative Court considered whether the trial and appeal process had been flagrantly unfair and whether extradition would be a disproportionate interference with Article 8 rights.

1. Disposition. The appeal was dismissed and the District Judge’s extradition order was confirmed.
2. Under R (Ullah) v Special Adjudicator [2004] 2 AC 323, a person relying on Article 6 or Article 5 as a bar to extradition must satisfy a high threshold. Where the relevant trial and appeal process has already occurred, the requested person must prove on the balance of probabilities that it was flagrantly unfair. If so, there must be substantial grounds for concluding that extradition would create a real risk of detention contrary to Article 5.
3. The court followed Wisniewski v Regional Court in Elbag, Poland [2012] EWHC 3040 (Admin) and Powierza v District Court, Warzawa, Poland [2013] EWHC 36 (Admin). The involvement of Polish judicial assessors did not, in the circumstances, meet the flagrant-breach threshold.
4. Urban v Poland [2010] ECHR 1903 did not establish that a defect at trial could never be cured on appeal. The evidence did not show that the prosecutor had influenced either the trials or the appeals. The proposed expert evidence was not decisive and was not received under the principles in Fenyvesi [2009] EWHC 231 (Admin).
5. For Article 8, the question was whether the District Judge’s conclusion was wrong, applying Celinski and others v Poland and others [2015] EWHC 1274 (Admin). Assistance given years earlier and delay while the appellant was a fugitive did not make extradition disproportionate.

The District Judge rejected the appellant’s Article 6 and Article 8 objections and ordered extradition. The Administrative Court dismissed the appeal and confirmed that order.