Man facing extradition to Poland fails in human rights appeal

Jaroslaw Pofelski, who claimed that he had been held in custody for a total of four years in Poland while awaiting trial before leaving the country for Scotland, argued that his extradition would be in contravention of his right to a fair trial within a reasonable time.

However, the Criminal Appeal Court held that Poland, as a Council of Europe country, was “presumed to be capable of protecting accused persons from an unfair trial” and appellant failed to show there was such a risk.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Drummond Young, heard that the appellant was seeking leave to appeal against a decision of the sheriff at Edinburgh to order his extradition to Poland in terms of a warrant issued under Part I of the Extradition Act 2003.

The appellant maintained that he was held in custody during periods between 2004 and 2006 and again between 2007 and 2009, but was not brought to trial on the charges which had been made against him between 2003 and 2004, and that he remained in Poland until 2013 without these matters being resolved.

The sheriff accepted only that the appellant had been remanded between approximately 2004 and 2006 when he was released following acquittal on one or more of the numerous charges he was then facing, but he continued to face other charges when at liberty thereafter.

The Polish authorities insisted that the delay in proceedings was due to the appellant’s “non-co-operation”.

Criminal proceedings were commenced, ended, and re-raised on more than one occasion, but the sheriff concluded that the requirement to do so was in whole or in part due to the appellant’s “non-engagement” on at least three or four occasions.

The appellant knew that the proceedings had been re-raised, or were live, in 2013, but he “thought his attendance was not necessary”.

He left for Scotland in November 2013 and before the sheriff, his agent accepted that he was a “fugitive from justice”.

The sheriff considered that the appellant’s primary concern about returning to Poland was not that he might not get a fair trial, but that he might face a lengthy remand, although he offered no evidence in support of this concern in relation to the possible timescales which he would face if returned to Poland.

However, relying on articles 5 and 6 of the European Convention on Human Rights, and sections 11 and 14 of the 2003 Act, the appellant argued that his extradition would be in contravention of his right to a fair trial within a reasonable time, and would, in any event, be “unjust”, on the basis of delay in prosecuting him.

It was acknowledged that at the hearing before the sheriff no reference was made to this alleged second period of remand, or to articles 5 and 6 of the ECHR, but counsel for the appellant sought to place before the court a document from a separate litigation before the European Court of Human Rights relating to alleged delay in proceedings, which it was submitted supported the history given by the appellant.

The appeal judges noted that the court may allow an appeal such as this only if the conditions in subsection (3) or the conditions in subsection (4) of section 27 of the Act of 2003 are satisfied.

The first of these requires that the sheriff ought to have decided a question before him in a different way, such that would require discharge of the appellant, which implies a need to identify an error on the part of the sheriff.

The second requires that an issue is raised, or evidence available, that was not raised or available at the extradition hearing, and which would have resulted in the sheriff deciding a question before him differently.

Counsel suggested that the document placed before the court fell into that category, but the evidence was available before the sheriff and was not placed before him.

Refusing the appeal, the judges observed that the first problem for the appellant was that in the proceedings before the sheriff no argument was advanced in relation to either article 5 or 6, while the second was that he was now seeking to rely on evidence which was available at the original hearing but was not led.

“Finally, there is before us no evidential basis for the assertions of fact upon which the appeal is based,” Lady Dorrian said.

Delivering the opinion of the court, the Lord Justice Clerk said: “The test to be applied where a person maintains that his article 6 rights would be infringed, were he to be extradited to another Council of Europe state, was whether he risked suffering a flagrant denial of justice in the requesting state.

“As has repeatedly been pointed out, a flagrant denial of justice involves a high test: a breach of the principles of fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.

“A Council of Europe country is presumed to be capable of protecting accused persons from an unfair trial. It is therefore for the person whose extradition was sought to adduce clear, cogent and compelling evidence capable of proving that there were substantial grounds for believing that such a risk existed.

“The appellant has not done so, and in the circumstances we are satisfied that the appellant has not advanced arguable grounds of appeal against the decision of the sheriff and his appeal will be refused.”