Lis & Anor v Regional Court in Warsaw, Poland & Anor (No 2)

Extradition may be refused where ordinary criminal defendants as a category face a real risk of flagrant breaches of Article 6; no separate requirement of exceptionality applies within that established category. Where no general risk is shown, the court must make a specific and precise assessment of the individual sought, having regard to personal circumstances, the offence, its factual context and information from the issuing authority. Changes affecting judicial appointments, without evidence of actual distortion of criminal justice, do not establish that risk. Difficulties in disaggregating a sentence likewise do not establish a particular risk of bias where effective mechanisms exist to comply with specialty obligations.

The proceedings concerned two appellants whose extradition to Poland had been considered in the Court’s earlier judgment in Lis, Lange and Chimielewski v Poland (No 1) [2018] EWHC 2848 (Admin). The Court had rejected a general challenge to the independence of the Polish judiciary, but permitted individual arguments based on the test in LM C-216/18.

Lis relied on changes to the Warsaw courts and alleged a risk of trial before a judge selected by the executive. Lange relied on the need to disaggregate an aggregate Polish sentence after extradition had been refused for one component offence. The central issue was whether either appellant had established substantial grounds for believing that extradition would expose him to a real risk of a flagrant denial of justice.

1. Outcome. Both appeals were dismissed. The Court held that neither appellant had established a real risk of a flagrant breach of Article 6.
2. General and individual risk. If ordinary criminal defendants as a category were at real risk of flagrant Article 6 breaches, extradition would be barred and there would be no additional requirement of exceptionality. The language of exceptionality arose because no such general risk had been established. Where the general challenge fails, the court must make the specific and precise assessment required by LM C-216/18, considering the person’s circumstances, the nature of the offence, its factual context and information from the issuing authorities.
3. Lis. Evidence that court presidents and judges had been removed or replaced did not show that criminal defendants before the Warsaw court were actually subject to compromised justice. A serving Warsaw judge stated that the disputes between the judiciary and Government had not affected criminal justice. There was no evidence of an actual Article 6 breach involving an ordinary, non-political criminal defendant. Lis’s case had no political or special interest, and the asserted risk was therefore not established.
4. Lange. Earlier difficulties concerning the disaggregation of Polish sentences did not demonstrate a systemic problem. Brodziak and Others v Poland [2013] EWHC 3394 (Admin) had resolved the Court’s anxiety by reference to Poland’s compliance with international obligations. In Kortas v Poland [2017] EWHC 1356 (Admin), the Court found mechanisms capable of communicating the offences covered by extradition and concluded that later events did not establish systemic non-compliance. There was no particular basis for believing that judges in Zielona Gora would distort the disaggregation process because one excluded offence involved verbal abuse of police officers.
5. Final order. The grounds advanced by Lis and Lange were rejected.

• High Court (Administrative Court): In Lis, Lange and Chimielewski v Poland (No 1) [2018] EWHC 2848 (Admin), the Court rejected the generic challenge to extradition based on the Polish judiciary but allowed individual grounds to be advanced.
• High Court (Administrative Court): The present Court considered the individual grounds advanced by Lis and Lange and dismissed both appeals.