OPREA v REGIONAL COURT IN LUBLIN, POLAND

For extradition following a conviction in absentia, the requesting authority must prove to the criminal standard that the person knew the date and place of the relevant hearing. An incomplete or confusing European arrest warrant cannot be supplemented by assumptions. A court must give legally adequate reasons for an adverse credibility finding.

In an Article 8 extradition assessment, exceptionality is not a legal threshold. It is a predictive tool reflecting the weighty public interest in extradition. The court must conduct the required proportionality balance.

The appellant appealed against a district judge’s order at Westminster Magistrates’ Court requiring his extradition to Poland. The extradition concerned a conviction and suspended sentence imposed after proceedings in which the appellant had not attended the relevant hearing.

Permission was granted on grounds concerning deliberate absence under section 20 of the Extradition Act 2003 and proportionality under section 21 and Article 8 of the ECHR. The central issues were whether the European arrest warrant established the appellant’s awareness of the date and place of the hearing, and whether extradition would be a disproportionate interference with Article 8 rights.

The appeal was allowed on the section 20 ground and the appellant was discharged in respect of the European arrest warrant.

1. Deliberate absence. The respondent had to prove to the criminal standard that the appellant was aware of the date and place of the October 2016 hearing. It was not sufficient to show that he had previously agreed with a prosecutor that he was guilty and what penalty should be imposed.
2. European arrest warrant. The warrant was flawed because Box D, option 2 did not explain how the respondent could establish that the appellant knew the date and place of the hearing. The court was required to take a constructive and sensible approach to the documentation, as described in Taranenco v Bucharest Section 1 Court (Romania) [2020] EWHC 1198, but that approach did not permit the court to supply missing information by assumption.
3. Reasons. The district judge’s conclusion that the appellant was evasive and untruthful was inadequately reasoned. Comparing the evidence recorded with the findings made, there was no legally adequate basis for concluding that the section 20 requirement had been proved.
4. Article 8. Exceptionality is not a legal test in extradition cases. Following HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, it is a predictive tool reflecting the weighty public interest in extradition. Had the section 20 ground not succeeded, the judge would have undertaken the balance-sheet exercise and concluded that extradition would not have been disproportionate. That conclusion was not determinative.

• Westminster Magistrates’ Court: on 19 February 2021, a district judge ordered the appellant’s extradition to Poland.
• High Court (Administrative Court): the appeal was allowed on the section 20 ground and the appellant was discharged.