Dzuibek v Circuit Court Katowice (Poland)

In an extradition appeal, a person subject to a suspended sentence who leaves the issuing state in breach of an obligation to notify the authorities may properly be treated as a fugitive. That status weakens an Article 8 claim. It does not, however, determine proportionality. The court must consider all relevant circumstances, including the seriousness and age of the offending, the person’s conduct, family and private life, any outstanding compensation, and delay. Unexplained and excessive delay in activating or executing an extradition warrant may carry very substantial weight. In an appropriate case, it may make extradition disproportionate even where the Article 8 claim would otherwise fail.

The appellant challenged an order made by a District Judge for his extradition to Poland to serve 18 months’ imprisonment for an offence of obtaining property by deception committed in 2001. The sentence had originally been suspended and was later activated after an alleged subsequent offence.

The European arrest warrant contained errors and gave little information about the subsequent offence or sentence. Further information was later provided. The appellant accepted that he had left Poland without complying with obligations to notify the authorities. The central issues were whether he could be treated as a fugitive, whether he could rely on section 14 of the Extradition Act 2003, and whether extradition would be disproportionate under Article 8 because of delay and his private and family life.

1. The appeal was allowed. Extradition would not be proportionate in the circumstances.

2. The District Judge was entitled to rely on the appellant’s evidence that he had left Poland without complying with the conditions of his suspended sentence. Applying the approach confirmed in Wisniewski v Poland [2016] 1 WLR 3750, a person who leaves the country in breach of an obligation to notify may properly be regarded as a fugitive. The appellant therefore could not take advantage of section 14 of the Extradition Act 2003.

3. Fugitive status weakened the appellant’s Article 8 claim. His criminal conduct in the United Kingdom also weighed against him. The District Judge had properly undertaken the balancing exercise required by Celinski.

4. Delay remained a decisive consideration. The offence was approximately 16 years old, the warrant had not been activated for about six years after the Polish authorities knew that the appellant was in the United Kingdom, and the reasons for the subsequent delay were unexplained. That delay provided a very weighty advantage to the appellant.

5. Although the offending was not trivial, it was not at the most serious end of the scale. The appellant had lived in the United Kingdom for about ten and a half years, had a partner who relied on him, and asserted that most of the financial liability had been paid. Considering all the circumstances, extradition to serve the outstanding sentence would be disproportionate.

1. District Judge: ordered the appellant’s extradition to Poland on 1 October 2015.

2. High Court (Administrative Court): allowed the appeal under section 26 of the Extradition Act 2003 and held that extradition would be disproportionate.