Malarz v Regional Court of Opole, Poland – Appeal against extradition from UK dismissed

EAW – England and Wales – Poland – Appeal – Appeal dismissed – Abuse of process – Article 8 ECHR – Validity of EAW

Wojciech Malarz appealed against his extradition from the UK to Poland on a conviction EAW (“the third EAW”), where he is wanted to serve a sentence of 14 months’ imprisonment for assault. The Administrative Court dismissed his appeal, in Malarz v Regional Court of Opole, Poland [2018] EWHC 28 (Admin).

Two previous EAWs issued by Poland in respect of the assault and a separate conviction for unlawful assembly had already been discharged by the UK courts.

Abuse of process

The Court dismissed the appellant’s argument that the third EAW was an abuse of process, which he based on the fact that Poland had not stated the difference between the third and the unsuccessful first EAW concerning his assault conviction. The Court found that although it was unfortunate that no explanation was provided sooner, this was far from being cogent evidence that the judicial authority had sought to subvert or impugn the integrity of the Extradition Act 2003 or the EAW regime.

The Court also noted that an inconsistency in the third EAW stating two different limitation periods, although bordering on incompetent, did not change the fact that it was a warrant in proper form and substance on which the first instance judge was bound to act.

Article 8 ECHR

The Court acknowledged a failure by the CPS to properly oversee the appellant’s case, including with respect to the above inconsistency in stated limitation periods, leading to delays and a confounded expectation on the appellant’s part that he would not be extradited. However, although these factors weighed against the proportionality of extradition, it found that neither they nor the appellant’s developed family life in the UK outweighed the public interest in his extradition.

The Court noted that this was not the only possibly view under the Polish Judicial Authorities v Celinski test, but that the first instance judge was not wrong to take it.

Validity of the EAW

Although an earlier EAW in respect of the appellant’s assault conviction in Poland had been discharged by the UK courts, the Court found that the amended third EAW was substantively different and therefore valid. In support of this finding, it also noted that the appellant was well aware that Poland intended to press for his extradition under the third EAW.

Konecny loses appeal against extradition to the Czech Republic

Mr Konecny appealed against his extradition from the UK to the Czech Republic on a conviction EAW.  He had been convicted in his absence in 2008 of three fraud offences and sentenced to 8 years’ imprisonment. The Administrative Court dismissed his appeal, in Konecny v District Court Czech Republic [2017] EWHC 2360 (Admin).

Passage of time

It was agreed that Mr Konency was not a fugitive and was unaware of his conviction and sentence in the Czech Republic until his arrest in 2017.  He submitted that the ‘passage of time’ the court should consider under s14(b) EA 2003 started running from the date of the commission of the first offence, namely November 2004.  He also submitted that extradition would be unjust due to passage of time because it appeared that the Czech authorities had lost documents that demonstrated his innocence.

The court held that the operative date was when the appellant became unlawfully at large, which was an objective state to which his knowledge was irrelevant: “Accordingly, in my judgment, the fact that the Appellant was unaware of his conviction and sentence in the Czech Republic until 2017 is irrelevant to the question of when he became unlawfully at large. In accordance with Wiszniewski he became unlawfully at large upon the date when a lawful sentence was imposed upon him in respect of his convictions for fraud. The date when that sentence was imposed was 12 May 2008.

The court also held that extradition would not be unjust because “I am entitled to infer and do infer that the evidence presented to the court justified the convictions. Upon his return to the Czech Republic the Appellant can exercise his right to have a re-trial if so advised and I must assume or infer that such a trial will be fair within Article 6 ECHR. That being so the production of the Appellant’s documents will, if he is correct, result in his acquittal. If they are not adduced in evidence the reason for that state of affairs will be examined critically and the Appellant’s right to a fair trial respected.”

Neither did the effects of extradition reach the high bar necessary to show oppression.  The effects of delay were best dealt with under Article 8.

Article 8 ECHR

The District Judge was entitled to treat the Czech authorities’ description of Mr Konecny as a “particularly dangerous recidivist” as a factor in favour of extradition despite his good character and employment in the UK since 2007.  The lengthy sentence and right to a retrial also favoured extradition.  The delays in issuing the EAW in the Czech Republic (2013) and certifying it in the UK (2017) were unexplained, troubling and “a powerful factor militating against extradition” but ultimately it could not be said that the District Judge was wrong to find that his Article 8 rights to a private and family life did not outweigh the public interest in extradition.