MAREK JAKUBOWSKI v REGIONAL COURT IN BIALYSTOK III CRIMINAL DIVISION, POLAND

Section 20 of the Extradition Act 2003 must be interpreted consistently with article 4a of the Framework Decision and ECHR article 6. The provision concerns proceedings which finally determine guilt and impose a sentence after reconsideration of the merits. A preliminary cassation review conducted on written submissions is not necessarily a decision in absentia where the requested person participated to the full extent permitted by domestic law. The section 20 safeguard protects fair-trial rights, but should not be extended beyond its purpose. In an article 8 proportionality assessment, the public interest in fulfilling extradition obligations, the seriousness of the offending and the requested person’s fugitive status may outweigh family life established in the United Kingdom. Unexplained delay and hardship do not necessarily make extradition disproportionate.

This was an appeal against an extradition order made on 3 March 2020. The order was based on a conviction European Arrest Warrant issued by the Regional Court in Bialystok concerning four Polish convictions.

The appellant challenged extradition under section 20 of the Extradition Act 2003, arguing that a later cassation appeal had been determined in his absence and that no retrial would be available. He also argued that surrender would disproportionately interfere with his ECHR article 8 family life, developed in the United Kingdom since 2005.

The central issues were whether the cassation procedure engaged section 20 and whether the extradition judge had erred in the article 8 proportionality assessment.

1. Section 20 and the cassation proceedings. Section 20 of the Extradition Act 2003 gives effect to article 4a of the Framework Decision and protects the requested person’s ECHR article 6 rights. The relevant question is whether the proceedings fall within the concept of the trial resulting in the decision: they must rule on guilt and impose a penalty following reconsideration of the merits in fact and law. Proceedings lacking those characteristics do not engage article 4a or section 20.
2. The court strongly suspected that the Polish cassation procedure did not meet that description, because cassation appeals ordinarily concern restricted legal grounds and do not involve reconsideration of the merits. However, the appellant had not provided sufficient evidence explaining the nature and scope of the procedure under the Polish Code of Criminal Procedure.
3. Even assuming that section 20 applied, the appeal failed. The Supreme Court’s preliminary review on the papers was not a decision in absentia. The appellant participated through written submissions filed by his lawyers, to the full extent permitted by the applicable procedure. The description of the process as a hearing did not alter its substance.
4. The appellant had been present at the original trial and the merits appeal. There was no prima facie evidence that the conviction or sentence resulted from proceedings contrary to article 6. In those circumstances, the evidential burden lay on him to provide material showing such a breach. The section 20 ground therefore failed.
5. Article 8. Applying the Celinski balance-sheet approach, the interference with family and personal life had to be weighed against the substantial public interest in fulfilling extradition obligations and the seriousness of the sentences remaining to be served. The appellant’s fugitive status, including reasonably drawn inferences that he had supplied false personal details to UK police, was relevant. Family hardship was a common consequence of extradition and did not itself make surrender disproportionate.
6. The unexplained interval between the first warrant being discharged and execution of the second warrant did not materially reduce the public interest in extradition or increase the weight of the family life established in the United Kingdom. The error in stating that more than five years remained to be served, rather than just over four years, was immaterial. The article 8 ground also failed.
7. Disposition. The appeal was dismissed.

• High Court (Administrative Court): the appeal against the extradition order made on 3 March 2020 was dismissed.