Kamil Galbarczyk v The Regional Court in Radom, Poland

Hearing date: 28.2.24

Draft judgment: 29.2.24

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Introduction

I have put my reasons into writing, in preference to asking Counsel to return to hear them delivered ex tempore at the end of a long court day with several intervening hearings. The Appellant is aged 40 and is wanted for extradition to Poland. Extradition was ordered by District Judge Sternberg (“the Judge”) on 4 July 2023, after hearings in January and May 2023 at which the Appellant was represented and adduced written and oral expert evidence (17.1.23 and 25.3.23) from a Polish Law Lecturer and Attorney (Dr Zygmont). The Judge also had Further Information from the Respondent (11.4.23). After the May 2023 hearing the Judge asked for, and received, a final piece of Further Information (30.5.23); and the Appellant's representatives filed a response from Dr Zygmont (16.6.23).

The extradition is in conjunction with a conviction Extradition Arrest Warrant issued on 31 May 2022 and certified on 20 July 2022, on which the Appellant was arrested on 17 September 2022, before being bailed two days later. The index offending is that he was a member of an organised criminal group operating in France and Poland between 2009 and 2011, stealing passenger and commercial vehicles, using fake purchase documents and forged vehicle identification numbers. The Appellant's role was helping to hide passenger vehicles knowing that they have been stolen in France and Germany.

The Judge unassailably found as follows. The Appellant was convicted at a trial in his presence and, in February 2015, sentenced to a two-year custodial sentence, suspended for 4 years on conditions requiring his keeping in touch with a probation officer. The 4 year probation period ended on 10 February 2019. The Appellant came to the UK in 2016 and initially discharged his obligation to keep in touch with probation. But from October 2018 he stopped keeping in touch with his probation officer, in breach of the conditions of the suspended sentence. On 21 November 2018, probation requested activation of the sentence. Activation was originally refused by a first-instance court on 10 January 2019 but then, on appeal, the sentence was activated in full on 25 March 2019.

Article 5(4)

The sole issue raised on appeal is that extradition would be incompatible with the Convention rights, because of “clear and cogent evidence” of a “real risk” of a “flagrant breach” of Article 5(4) ECHR. Mr Mak's carefully constructed argument is as follows:

i) An issue as to the domestic Polish lawfulness of the detention arises. That is because of a legal point and a factual point. The legal point is that, in Polish domestic law, a suspended sentence can only be activated where the person whose liberty is at stake has been sent (a) prior written warning and (b) a summons for the activation hearing. The appeal court (25.3.19) will have been well aware of the legal point. The factual point is that only a warning text was said, by the Respondent to the Judge, to have been sent; not a written warning; and no summons. The appeal court (25.3.19) overlooked this. It gives a basis for saying that the activation was unlawful under Polish domestic law.

ii) Article 5(4) requires that: “Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release order if the detention is not lawful”. The question is whether this entitlement is being secured, in relation to the activation (25.3.19).

iii) If the appeal court had exercised its power to remit, and if the activation had then been by the first-instance court, there would have been a right of appeal against the activation. That would have satisfied Article 5(4). That is so, even if no appeal were pursued; or even an appeal had been timed out. The fact is that, because the appeal court decided to substitute its own decision, and not to remit, that appeal right was lost. This is crucial to the analysis.

iv) It is true that an activation decision will not normally engage Article 5(4) – if a person breaches the conditions of a suspended sentence and a court activates that sentence – because the detention falls within Article 5(1)(a), as a deprivation of liberty in accordance with a procedure prescribed by law, which is the lawful detention of a person after conviction by a competent court. It is also true that if Polish domestic law had never provided a right of appeal, and an activation took place which was unappealable, this would not engage Article 5(4). That is even if a precondition in Polish domestic law, to an activation decision, was unfulfilled. But what makes the difference is that there is a right of appeal and, here, there was no remittal.

v) In the absence of any appeal right against the activation – because of the non-remittal – there would need to be some other remedy satisfying Article 5(4). There is none. The Ombudsman has been suggested, but this does not satisfy “speedily”. The Further Information (30 May 2023) suggests a right under Article 24 of the Executive Penal Code, where a court may set aside its decision on new information unknown at the time. But – as Dr Zygmont's response (16 June 2023) pointed out – that means “unknown” and “factual” information; and not a defect or the missing of a procedural step. The domestic law breach in the present case is neither factual nor unknown; it is a defect in the missing of a procedural step. In any event, as Dr Zygmont also pointed out, Article 24 is an ‘own-motion’ power, which the Appellant would have no right to invoke.

vi) This meets the standard of “clear and cogent evidence” of a “real risk” of a “flagrant breach”. The Judge's reasons did not adequately deal with the argument, was wrong not to admit Dr Zygmont's final report (16.6.23) and was wrong in the discussion of the substance of that and the other evidence. The Judge was therefore wrong to reject the Article 5(4) incompatibility of extraditing the Appellant. For today, it is sufficient that the Judge was, reasonably arguably, wrong.

Reference-Points

I think it helps to have in mind a number of basic points:

i) There is a bespoke protection, based on Article 6 ECHR fair trial rights, where a requested person is tried in their absence, raising issues about (a) deliberate absence and (b) retrial rights. In the Extradition Act 2003, it is s.20. But it, and Article 6, do not apply to an activation hearing, because that is not part of the “trial”. See eg. Miroslav Murin v District Court in Prague (Czech Republic) [2018] EWHC 1532 (Admin) at §35.

ii) Imprisonment in accordance with an activated custodial sentence, previously suspended, is imprisonment pursuant to a...