Kowalski, R (On the Application Of) v Judicial Authority Poland

LORD JUSTICE JACKSON: This is an appeal in an extradition case. The facts giving rise to this appeal are as follows: the appellant is a Polish national now living in the United Kingdom. He is married here to a lady who also comes from Poland and he has two children.

The Polish authorities allege that the appellant committed four offences in Poland in 2004 and 2005. They say that in May 2004 he, acting with others, assaulted and robbed two victims. He stole three mobile phones, a cash card and jewellery. The victim sustained serious injuries. It is alleged that two weeks later, at the end of May 2004, the appellant broke into a house by force. The appellant and his colleagues used force against the occupants of the house, tied them up and stole a Peugeot vehicle and cash.

It is alleged that the following month, in June 2004, the appellant and others broke in to a poultry house with force and stole various items from there. Finally it is alleged that on 19 June 2005 the appellant and others barged into a village shop. They beat the owners, tied them with electric cable and stole cash from the shop.

On 2 June 2010 the Regional Court in Poland issued a European Arrest Warrant requesting that the appellant be arrested and surrendered to the Polish judicial authorities in order to stand trial for those offences.

The appellant was duly arrested. He was brought before the City of Westminster Magistrates' Court on 9 November 2010. The appellant was represented on that occasion by a solicitor, Mr Wong. Mr Wong called the appellant as a witness. The appellant gave evidence to the effect that he had a wife and children in this country. He also suffered from type one diabetes. He should not be separated from his family in this country. He feared that he would not receive appropriate treatment in prison in Poland. Also, he asserted that he was not guilty of any of the offences alleged.

Mr Wong made submissions to the District Judge essentially on two matters. First, Mr Wong submitted that by reason of the passage of time it would be unjust or oppressive to extradite the appellant to Poland. Secondly, Mr Wong submitted that it would be a breach of the appellant's human rights to extradite him to Poland, given the appellant's medical condition and his family life in this country. In making those submissions, Mr Wong placed reliance upon sections 14 and 21 of the Extradition Act 2003.

District Judge Riddle considered those submissions, but rejected them. He concluded that the passage of time was not sufficient to bar extradition. He considered that the appellant could be properly treated for his medical condition in Poland. He considered that the interruption which would necessarily occur in the appellant's family life in this country was not such as to constitute a breach of Article 8 of the European Convention on Human Rights or such as to provide a bar to extradition pursuant to section 21 of the Extradition Act 2003.

The appellant appeals to this court. His grounds of appeal take two points: first, it is said that the District Judge erred in failing to find that it would be unjust, oppressive and prejudicial to extradite him. Secondly, he says that the District Judge ought to have held that ordering extradition would be incompatible with the appellant's human rights under the European Convention on Human Rights.

At the hearing of the appeal today Mr Kowalski appears in person and Miss Gemma Lindfield appears for the respondent.

In opening his appeal, Mr Kowalski really made three points: first, he said that he simply does not want to go back to Poland. Secondly, he said that he is innocent of the offences with which he was charged in Poland. Thirdly, he said that he has close links with this country because his wife and now his two children all have a home here.

On behalf of the respondent, Miss Lindfield submits that the guilt or innocence of the appellant is not a matter for this court; that is a matter to be determined by the criminal court in Poland. Secondly, Miss Lindfield submits that the presence of a wife and family in this country undoubtedly gives rise to a family life here for the appellant, however the extradition process generates a necessary interruption of family life for a period and, bearing in mind the qualification of Article 8, that does not constitute an infringement of the appellant's rights under Article 8 of the European Convention on Human Rights. Thirdly, Miss Lindfield points out that there is no evidence before this court to the effect that Poland cannot treat the appellant properly for his diabetes.

In reply, Mr Kowalski submitted that the Polish courts could not be trusted to deal with the criminal proceedings against him fairly. Mr Kowalski emphasised that his home is in this country. His wife and children must stay here; there is no way they can uproot and leave Poland. Thirdly, Mr Kowalski submitted that the Polish prisons are not of a high standard and he is fearful that his diabetes will not be properly treated.

I have carefully considered the points made by Mr Kowalski, but I cannot accept his submissions. The question of whether he is guilty or innocent of the four alleged offences must be a matter for the courts in Poland. This court does not accept the proposition that the Polish courts cannot be trusted to conduct the criminal proceedings fairly. It is the essence of the extradition arrangements made between member states of the EU that each state has confidence in the criminal process of other states, and therefore will return citizens to the appropriate state to stand trial for any offences of which they are accused. I do accept Mr Kowalski's point that his home is here and his wife and children are here. However, in my view the extradition process brings a necessary interruption of family life and that does not give rise to a breach of Article 8.

So far as the appellant's medical condition is concerned, the District Judge concluded that that could be treated appropriately within the Polish prison system. There is no evidence in these proceedings to suggest that the District Judge erred in reaching that conclusion. There is no evidence to contradict what the judge found, and in any event this appeal is concerned with questions of law rather than the correctness of findings of fact.

For all of these reasons, I conclude that the grounds of appeal have no substance and this appeal must be dismissed. Thank you very much, Mr Kowalski.