Scotland: Extradition to Poland would not breach right to a fair trial despite ‘breakdown in rule of law’

A Polish national convicted of a series of offences and accused of other crimes in his home country who claimed before the Scottish courts that extradition to Poland would breach his human rights has had his legal challenge dismissed in a test case.

Patryk Maciejec, 27, argued that new laws and procedures brought in by the Polish Government undermined judicial independence and created a “climate of fear” among the judiciary, meaning he could not be guaranteed a fair trial.

However, a sheriff in Edinburgh rejected the claim that extradition would amount to a contravention of his rights under article 6 of the European Convention on Human Rights, in a ruling which paves the way for 48 Polish nationals subject to European Arrest Warrants to be extradited, our sister publication Scottish Legal News reports.

European Arrest Warrant

Sheriff Frank Crowe heard that Mr Maciejec was given suspended prison sentences in Poland for housebreaking, theft and drink-driving, and was facing a charge of driving while already banned when he moved to Scotland in 2011.

Working in Edinburgh as a part-time car mechanic, he was arrested four years later under a European Arrest Warrant (EWA) and the Circuit Court of Warszawa-Pragawas seeking his extradition under the Extradition Act 2003.

His case was a test case which it was agreed would be dealt with to hear evidence and determine Article 6 challenges which were lodged in Polish extradition proceedings in the wake of concerns which were raised about new legislation and procedures brought in by the Polish Government following the general election in 2015.

The hearing was initially intended to be a test case for 33 similar cases involving Polish nationals, but there were now 48 outstanding cases awaiting the court’s decision.

Edinburgh Sheriff Court was told in December 2017 the Venice Commission, the body responsible for monitoring the rule of law for the European Union, reported that political changes in Poland put “at serious risk the independence of all parts of the Polish Judiciary”.

The European Commission had also published a ‘Reasoned Proposal in Accordance with Article 7(1) of the Treaty on European Union regarding the Rule of Law in Poland’, and launched an infringement procedure against Poland regarding the Polish law on the Supreme Court, which lowered the retirement age and forced judges to retire, before the Court of justice of the European Union ordered the Polish Government to immediately suspend the application of the provisions of the legislation.

‘Right to a fair trial’

Counsel for Mr Maciejec, who faced a provisional arrest warrant and three conviction warrants within the EWA, argued a fair system of criminal justice had to be “independent of political interference” and required to have the “appearance and hallmarks of impartiality”.

She questioned whether the lower courts were effective in dealing with Mr Maciejec’s cases when a “climate of fear” existed among Polish judges following upon “radical new laws” which had been introduced without proper consultation or based upon evidence.

The defence relied on evidence from a number of expert witnesses who expressed concerns about the effect of the judicial reforms in Poland.

The court, it was argued, required to follow the procedure set out in the case of LM [2019] 1 WLR 1004, in which the Grand Chamber of the European Court of Human Rights held that a European Arrest Warrant must not be executed if there is a “real risk” that requested person would suffer a breach of right to fair trial.

The sheriff was asked to await a decision in an ECJ case about the Polish Judicial system and whether it was independent or not.

It was submitted that the evidence adduced indicated that there had been a “breakdown in the rule of law” and it was argued that to return Mr Maciejec would be “contrary to his rights” in terms of Article 6 of the European Convention.

‘No bars to extradition’

However, the sheriff ruled that there were “no bars to extradition”.

In a written judgment, Sheriff Crowe said: “While criticisms of the Polish judicial system have emerged since the change of Government and the promotion of new laws which attracted the attention of the Venice Commission, the Reasoned Proposal from the European Commission and critical reports from the Helsinki Foundation, KOS and Amnesty International, the LM case requires further information specific to the particular case that a fair trial would not be possible, as long as Article 7 procedures are not brought into effect.”

There was expert evidence describing what the situation was like in the requesting court, and while the experts were critical of the changes in the law, they could not point to an instance of seeing an unfair trial.

He added: “Mr Maciejec could put no reason forward why his cases would attract special attention. There was no political element to the charges or the involvement of some high ranking person which might skew the process as was suggested by some examples in the experts’ reports. No specific issues were raised regarding the Warszawa-Praga court (where Mr Maciejec would be sent if extradited) which might threaten the right to a fair trial.”

The sheriff said he did not find Mr Maciejec’s evidence “impressive”.

He explained: “He was clearly a fugitive who left Poland very soon after a court ruling against him in December 2011…I did not believe his contention that he was unaware of his trial and simply absconded when the nature and number of his cases reached the stage where a prison sentence loomed.”

The sheriff also considered Mr Maciejec’s personal circumstances, noting that he was in employment and supporting a partner who was due to give birth to a child in a few months, but observed that he had been convicted of serious offences.

“As against this,” he continued, “quite apart from the public interest being in favour of extradition and that the UK should not be a safe haven for fugitives, the offences were serious and numerous and amounted to a course of conduct over a period of five years. It would appear that Mr Maciejec had come to the attention of the authorities since arriving in Scotland and had delayed the proceedings by failing to appear at a diet on 2 June 2016 and had not returned to court until 2 October 2017 when he was arrested.”

Sheriff Crowe concluded: “For these reasons I am satisfied there are no bars to extradition in terms of section 11(4) of the 2003 Act and move to section 20 of the Act. I found that Mr Maciejec deliberately absented himself from his trial and proceeded to section 21A of the Act.

“I was satisfied it was proportionate to consider extradition on the accusation offence and in considering all charges under section 21 decided that Mr Maciejec’s extradition would be compatible with his Convention Rights for the reasons I have given above and accordingly make an order under section 21 of the Extradition Act 2003 ordering his remand to be extradited to Poland within 10 days of this date.”

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