Kamil Galbarczyk v The Regional Court in Radom, Poland

Activation of a previously suspended custodial sentence ordinarily falls within Article 5(1)(a) of the ECHR and does not engage Article 5(4), even where a domestic-law precondition is alleged to have been misunderstood or missed. Article 5(4) cannot apply selectively merely because domestic law provides an appeal in some cases or because activation was carried out by a particular tier of court.

Resistance to extradition on Article 5(4) grounds requires clear and cogent evidence of a real risk of a flagrant breach. Mutual trust between Convention states and the absence of a general duty on the extraditing court to investigate the requesting state’s process remain important. A specified domestic remedy may be Convention-compatible where the alleged defect can be presented as factual and previously unknown.

The appellant was wanted for extradition to Poland following a conviction in his presence for involvement in organised vehicle theft. A two-year custodial sentence was imposed in 2015, suspended for four years. After he stopped maintaining contact with probation, the sentence was activated by an appellate court on 25 March 2019.

The District Judge ordered extradition on 4 July 2023. The appellant sought to argue that activation was unlawful under Polish domestic law because he had received neither the required written warning nor a summons. He contended that the appellate court’s decision not to remit the matter deprived him of an appeal and created a real risk of a flagrant breach of Article 5(4) ECHR. The issue was whether extradition was incompatible with that Convention right.

1. Permission to appeal refused. The District Judge’s reasons and conclusion were unassailable. The alleged Article 5(4) incompatibility was not reasonably arguable.

2. Imprisonment under an activated suspended sentence is imprisonment pursuant to a criminal conviction and ordinarily falls within Article 5(1)(a) ECHR. Article 5(4) is therefore not normally engaged. That position remains coherent where the complaint is that a domestic-law criterion or procedural precondition was misappreciated or misapplied.

3. The appellant’s proposed distinction based on the existence of an appeal right was untenable. If Article 5(4) did not apply where domestic law provided no appeal, it could not logically become applicable merely because domestic law provided an appeal in other circumstances or because a particular court exercised the activation power without remitting the case.

4. The alleged failure to send the required documents did not disclose a realistic flagrant violation. The appellant had discontinued contact with probation while in the United Kingdom, and a warning had been sent to the last mobile number available. The suggested remedy under Article 24 of the Executive Penal Code could address circumstances of a factual nature that were previously unknown. On the appellant’s own case, the omission of the required documents could be characterised as factual and overlooked.

5. The analysis was reinforced by mutual trust and recognition between Convention states. Poland was presumed to comply with its Convention responsibilities, which were ultimately matters for the requesting state. If necessary, the appellant could seek a Convention-compatible approach to Article 24 after extradition.

6. The governing threshold was deliberately high: clear and cogent evidence of a real risk of a flagrant breach of a Convention right. There was also no general duty on the extraditing court to inquire into the fairness or due process of the requesting state’s proceedings. None of the appellant’s arguments, individually or cumulatively, met that threshold.

• District Judge: extradition ordered on 4 July 2023.
• High Court (Administrative Court): Saini J refused permission to appeal on the papers. Fordham J agreed and refused permission to appeal.