Rebecca Hill and Mark Smith
Since the introduction of the European Arrest Warrant scheme the UK has extradited more individuals to Poland than any other European State. Various arguments about poor prison conditions, protection from non-state actors, inadequate health care and malicious prosecutions have each been litigated and ultimately dismissed by our Courts.
The cumulative effect is that, save in exceptional cases, it has been profoundly difficult to resist extradition to Poland. The key principle to date was that as a member of the European Union and a signatory to the European Convention on Human Rights, there is a presumption that extradites to Poland will have their rights protected. Rebuttal of that presumption required that a Requested Person meet the near impossible challenge of adducing clear and cogent evidence, approaching an international consensus; Agius v Malta  EWHC 759, §§18-19 and Krolik & Ors v Polish Judicial Authorities  EWHC 2357, §7.
Against this background, it may be surprising that for several months the High Court did not uphold the extradition of any accused person sought by Poland. Instead, all accused persons and many convicted had their cases stayed, pending determination of lead cases called Lis v Poland (CO/6151/2016) and Lange v Poland (CO/4738/2017).
Pawel Lis, Dariusz Lange, Piotr Pawel Chmielewski v Regional Court in Warsaw, Poland, Zielona Gora Circuit Court, Poland, Regional Court in Radom, Poland  EWHC 2848 (Admin) was heard before the Divisional Court on 7 June 2018, with judgment being handed down on 31 October 2018.
Lis and Lange both turned on the question of whether return to Poland represents a real risk of a flagrant breach of Article 6 of the European Convention on Human Rights. This first became an issue following a judgment of the Irish High Court published on 12th March 2018 (Minister for Justice & Equality v Celmer  IEHC 119). The case considered the impact of recent constitutional changes in Poland upon the impartiality of the judiciary and in turn the compatibility of extradition with an accused individual’s right to a fair trial.
In making their assessment the Irish Court had regard to a European Commission Reasoned Proposal, dated 20th December 2017 entitled ‘Proposal for a council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law’, together with Opinions from the European Commission for Democracy through Law (‘the Venice Commission’). In summary, the nature of the Polish constitutional changes and the Venice Commission’s position upon them (as set out in their Opinion dated 8th December 2017) are as follows:
"Taken together the merger of the office of the Minister of Justice and that of the Public Prosecutor General, the increased powers of the Public Prosecutor General vis-à-vis the prosecution system, the increased powers of the Minister of Justice in respect of the judiciary (Act on the organisation of Common Courts) and the weak position of checks to these powers (National Council of Public Prosecutors) result in the accumulation of too many powers for one person. This has direct negative consequences for the independence of the prosecutorial system from political sphere, but also for the independence of the judiciary and hence the separation of powers and the rule of law in Poland.”
Having assessed the evidence before it the Irish High Court reached the following findings:
- This Court concludes, based upon the information before it, that the rule of law in Poland has been systematically damaged by the cumulative impact of all the legislative changes that have taken place over the last two years. [Para 124]
- The totality of changes in Poland, especially as regards the constitutional role in safeguarding independence of the judiciary by the National Council for the Judiciary, combined with the Polish government persisting with invalid appointments to the Constitutional Tribunal and refusing to publish certain judgments, also amounts to an undermining of the rule of law. It is a basic principle underpinning democracy that the state will function in accordance with law. [Para 127]
- If the respondent is surrendered, he will be returning to face trial in a jurisdiction where the Minister of Justice is now the Public Prosecutor and is entitled to play an active role in prosecutions. The same Minister of Justice has a disciplinary role over the Presidents of Courts. This has the potential for a chilling effect on those Presidents, with consequential impact on the administration of justice. As the Venice Commission notes at para 103 of Opinion No. 904/2017: “the president of the courts in the Polish system have vast powers vis-a-vis the ordinary judges and play important role in the case-management process …, which makes the strong dependence on the presidents before the MoJ even more problematic.” [Para 128]
- There is a risk to this respondent being subjected to arbitrariness in the course of his trial, precisely because the system’s wide and unchecked powers is inconsistent with a democratic state subject to the rule of law. [Para 133]
- The recent changes in Poland have been so damaging to the rule of law that this Court must conclude that the common value of the rule of law in Poland has been breached. Indeed both the common values of the rule of law and democracy in Poland have been breached by these changes. As is apparent from the foregoing, the common values, set out in the TEU, are no longer accepted by Poland.[Para 135]
The Court concluded that the systemic breaches in Polish rule of law are such that they would ordinarily engage the Aranyosi approach of seeking further information from a Judicial Authority (Aranyosi & Caldararu (Joined cases C-404/15 and C-659/15 PPU)  QB 921). However, given the undermining of the mutual trust upon which such requests are ordinarily predicated, the Court did not consider such an approach appropriate. Instead, having reached a finding that a member state has breached the common values of rule of law and democracy the Court concluded that a ruling from the CJEU must be sought.
On 28th June 2018 the Advocate General issued an opinion that in summary swerved questions of the fundamental erosion of the rule of law and instead concluded that domestic courts must assess whether in a given individual’s case the lack of judicial independence in Poland will have such a serious impact as to destroy the fairness of that individual’s trial. The thrust of this opinion was adopted by the Court when, on 25th July it published it’s decision (reported as ML - Case C-216/18 PPU)
The position since Lis and Lange:
Judgment in Lis and Lange was handed down by the Divisional Court on 31 October 2018. The judgment can be viewed here. In short, it was held that:
- There is no general basis to decline extradition to Poland, but there is sufficient concern about Polish judicial independence that applicants with exceptional cases should have the opportunity to advance reasons why there is a risk of a breach of their individual rights to a fair trial (at ).
- The court also rejected the applicants’ argument that the Polish courts no longer met the definition of ‘judicial authorities’ under Article 6 (at ).
The question for extradition practitioners is: what constitutes an "exceptional" case? The guidance from Lis itself is that the appellants' cases would not meet the test. They were "ordinary" criminal cases with "no political or otherwise sensitive content". It therefore seems that any Requested Person wishing to pursue this argument will have to evidence some political connection of the kind usually argued under section 13 of the Extradition Act (extraneous considerations).
The only other avenue open to Polish Requested Persons appears to be a more direct challenge to Lis itself. The extensive expert evidence adduced in that case was given only a cursory reference and the content of the reports was not addressed at all. Those reports included expert opinion that the collapse of the Polish rule of law will indeed affect otherwise "ordinary" criminal cases, particularly through alleged pressures on the judiciary to increase remand and conviction rates, as well as the number of custodial sentences.
It remains to be seen whether any direct challenge to Lis will succeed, although it is perhaps more likely that most Polish extraditees will have to wait for further legislative developments in Poland before they can launch a fresh attack against their extradition under Article 6.
Rebecca Hill is an experienced criminal advocate with specialist expertise in extradition and a strong interest in human rights and their engagement within the criminal justice system. Rebecca is ranked in Chambers and Partners as a band 2 leader in the field of Extradition at the London Bar. She has been ranked since 2012. Rebecca is ranked as a Tier 2 leading individual in the Legal 500 in the field of International Crime and Extradition.
Mark Smith is a barrister specialising in crime, extradition, family and civil work. He appeared regularly in the High Court (Admin) in relation to extradition appeals, as well as in criminal matters in the Crown Court for both the prosecution and defence. He is also experienced in proceeds of crime and prison proceedings.