Extradition procedure
Extradition proceedings serve the purpose of surrendering a prosecuted person at the request of a foreign state to conduct criminal proceedings against him or to execute a penalty or a protective measure imposed on him.
The proceedings are initiated by the competent authority of the foreign state (in the case of Belarus – the district prosecutor’s office competent for the place where the crime was committed), which submits to the competent authority of the state where the person stays a request for surrender of the prosecuted person. In case of Poland, the competent authority will be one of the district prosecutor’s offices with jurisdiction over, among others, the place of detention of the prosecuted person.
The prosecutor then interrogates the person and, if necessary, secures evidence located in the country, and having collected the material, transfers the case for surrender of the fugitive to the locally competent regional court.
The district court at the session shall give the prosecuted person an opportunity to give explanations verbally or in writing. The public prosecutor and the defence counsel of the prosecuted person, as well as a translator if the foreigner does not speak Polish, are entitled to take part in the session.
The prosecuted person has the possibility to apply for appointing him a defence counsel ex officio, if he duly demonstrates that he is not able to cover the costs of defence without detriment to necessary maintenance of himself and his family.
On the other hand, the court is obliged to appoint a defence counsel ex officio for a prosecuted person if there is a justified doubt whether the prosecuted person can conduct defence in an independent and reasonable manner, which particularly concerns foreigners residing on the territory of the Republic of Poland.
If there are no negative prerequisites with regard to the fugitive (e.g. Polish citizenship, statute of limitations, possibility of infringement of freedom and rights of the fugitive in the issuing state) and all positive prerequisites are fulfilled (i.e. double criminality of the act, commission of an offence in the territory of the state demanding surrender, competence of the authority requesting surrender of the fugitive, no doubts as to the identity of the fugitive and lack of exercise of the right of asylum by the fugitive), then the district court issues a decision on admissibility of extradition of the fugitive.
The decision of the regional court on extradition may be appealed against (Art. 603 § 4 of the Code of Criminal Procedure).
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19970890555/U/D19970555Lj.pdf
A complaint shall be served both against the decision declaring extradition admissible and against the decision declaring extradition inadmissible. If the decision on admissibility of extradition is final, i.e., no complaint is lodged or the complaint is not accepted, the district court transfers the case files together with the final decision to the Minister of Justice, who, having decided on the request, notifies the competent authority of the foreign state about it. The final decision on the legal admissibility of the surrender of the prosecuted person always rests with the Minister of Justice.
For the duration of the extradition proceedings, the person prosecuted may be remanded in temporary custody. Extension of temporary arrest for a period longer than 12 months may be made by a decision of the court of appeal. At the stage of judicial extradition proceedings, pre-trial detention may be applied for a period not exceeding 2 years including the period of pre-trial detention pursuant to the decision of the district court ruling on the legal admissibility of extradition.
A request for surrender of a prosecuted person must meet several formal requirements, which are specified, inter alia, by the International Covenant on Civil and Political Rights
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19770380167/O/D19770167.pdf
the European Convention on Human Rights
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19930610284/T/D19930284L.pdf
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment of 10 December 1984,
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19890630378/O/D19890378.pdf
as well as the European Convention on Extradition of 13 December 1957
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19940700307/O/D19940307.pdf
The request for surrender of the prosecuted person should be made in writing and delivered to the competent authority in the country in which the prosecuted person is present. In addition, the request shall be accompanied by the original or a certified copy of the decision enforceable in the prosecuting state and shall, inter alia, describe the factual acts for which the surrender of the prosecuted person is requested – including the time and place of the acts, their legal qualification, and an indication of the legal provisions applicable to the case.
Countries define the conditions for the execution of extradition in international agreements. An example may be the Agreement No. 359 of 26 October 1994 between Belarus and Poland on legal assistance and legal relations relating to civil, family, labour and penal affairs.
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19951280619/O/D19950619.pdf
In the agreement in question, the Republic of Poland and the Republic of Belarus have established, inter alia, the following conditions for extradition proceedings:
– surrender for the purpose of criminal liability shall take place only on account of such offences which, according to the laws of both countries, are punishable by a penalty whose upper limit exceeds one year of deprivation of liberty or by a more severe penalty,
– surrender for enforcement shall occur only for such an offence which is a criminal offence under the law of both countries and where the person whose surrender is requested has been sentenced to a penalty involving deprivation of liberty of at least six months or a more serious penalty,
– if the offence is punishable by death under the law of the requesting state and not punishable by the law of the requested state, the death penalty may not be pronounced or carried out in the territory of the requesting state,
– the request for extradition must contain the identification of the requesting authority, the text of the laws of the requesting state under which the act is considered an offence, the name of the person whose extradition is sought, details of his nationality and place of residence, a sketch of him, a photograph, and an indication of the amount of harm caused by the conduct of the person sought,
– the state receiving the extradition request shall take immediate measures for the provisional arrest of the person prosecuted.
Conclusion of an international agreement in the field of extradition results in the principle of reciprocity, which creates a presumption of good faith for each case of a request for surrender of a prosecuted person by a foreign state and obliges Poland to accept such a request.
When extradition relations between Poland and a third country are governed by an extradition agreement, the grounds for refusal of surrender should be sought first in the content of the agreement and only when this issue is not regulated by the agreement, should domestic regulations be applied (verdict of the Court of Appeal in Katowice of 02 March 2011, ref. II AKz 87/11, OSA in Katowice 2011, No 2, item 25).
Absolute positive conditions for the admissibility of surrender – international standards.
International standards conditioning extradition include such circumstances as:
– double criminality of the act, i.e., the committed act must be an offence in Poland and in the extradition requesting state,
– the offence committed in the territory of the state requesting extradition,
– request for extradition by a competent authority of the state demanding extradition,
– no doubts as to the identity of the prosecuted person,
– the fugitive person does not exercise the right of asylum.
These prerequisites must be fulfilled cumulatively, i.e., appear together for extradition to be possible. The absence of any of the above-mentioned prerequisites will result in the issuance of a decision on legal inadmissibility of this action.
Absolute grounds for admissibility – overview.
Double criminality of the act.
One of the basic conditions for the execution of extradition is double criminality of an act, consisting in the fact that in both states a given behaviour of the prosecuted person is a crime. It should be noted that what is at issue here is not the identity of sanctions, i.e., the punishment for a given act, i.e., whether both acts are punishable by the same punishment, e.g., from 1 to 5 years of imprisonment, but only a statement that both acts in Poland and in the extraditing country are crimes. For example, the equivalent of the Polish crime of fraud regulated in Art. 286 of the Polish Criminal Code is Art. 209 of the Criminal Code of the Republic of Belarus.
https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19970880553/U/D19970553Lj.pdf
Double criminality of an act occurs also when the offence provided for in Polish law corresponds at least in part to the elements (description of the offence) of the act covered by the motion, and also when under Polish law there is no identical type of offence as under the law of the requesting party, but the act described in the motion corresponds to the elements (meets the description) of one of the offences provided for in Polish law. The above means that acts committed by the person prosecuted do not have to have the same name in both countries, e.g., ‘fraud’, ‘theft’, ‘violation of physical inviolability’, the point is that the action of the perpetrator in both countries is an action subject to criminal liability.
The commission of an offence in the territory of the extradition requesting state.
The Polish court should be convinced that the presented evidence makes it sufficiently probable that a criminal offence has been committed by the person prosecuted in the territory of the requesting state. They do not have to be source evidence, if the facts making the commission of the act plausible, resulting from the application and the materials attached to it, do not raise any doubts.
Absolute negative grounds for inadmissibility of surrender – overview.
Polish citizenship of the perpetrator and exercising the right to asylum in Poland.
No surrender may take place if the person who is the subject of an extradition request is a Polish citizen or enjoys the right of asylum in the Republic of Poland.
The fact that the person who is the subject of an extradition request holds another citizenship besides Polish citizenship is irrelevant in this case.
A person benefiting from the right of asylum is only the person referred to in Art. 90 sec. 1 of the Act of 13 June 2003 on granting protection to foreigners within the territory of the Republic of Poland.
https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20031281176/U/D20031176Lj.pdf
According to this provision it is only a foreigner, i.e., a person who does not have Polish citizenship. The right of asylum is granted to a foreigner by the Head of the Office for Foreigners.
Granting the right of asylum requires two premises to be met cumulatively, i.e., the necessity to provide the applicant with protection on the territory of the Republic of Poland and an important interest of the Republic of Poland.
Example:
A foreigner of Afghan origin is an active community politician in Afghanistan. Due to the events of 15 August 2021, i.e., the coup d’état by the Taliban, the Islamic Emirate of Afghanistan has been re-established. The foreigner is not a supporter of the strict Sharia-based law and therefore refuses to join the new authorities of the Islamic Emirate of Afghanistan, which is not recognised by the international state bodies. As a result, there is a strong likelihood that he may face the death penalty or other persecution because of his political and religious views. The important interest of the Republic of Poland is revealed in the obligation to respect human dignity, the protection of which is the duty of the Republic of Poland.
The negative condition for issuing an extradition order will not be met regarding a person who:
– obtained a permit for tolerated stay (i.e., a person who was refused refugee status),
– obtained temporary protection,
– obtained the refugee status,
– declares an intention to apply for residence in Poland (decision of the Court of Appeal in Katowice of 4 September 2002, II AKz 846/02, KZS 2003, No 4, Item 75, SN of 11 January 2000, II KO 289/99, OSNKW 2000, No 3-4, item 38).
The mere initiation of proceedings aimed at obtaining asylum does not constitute an obstacle to issuing an extradition order either.
From the perspective of the existence of extradition obstacles listed in Art. 604 § 1 of the Code of Criminal Procedure the moment of actual surrender of a person to a foreign state is crucial. Obtaining Polish citizenship or asylum seeker status after the court has issued a decision on legal admissibility of surrender is therefore considered as an extradition obstacle.
Obstacle of limitation.
Pursuant to Art. 604 § 1 item 3 of the Code of Criminal Proceedings, surrender is inadmissible if the statute of limitations for an act has expired, or if the statute of limitations for the execution of a validly imposed sentence has expired – depending on whether the application concerns surrender for the purposes of instituting criminal proceedings or for the purposes of executing a sentence or a protective measure.
The statute of limitations is the period after which the perpetrator of an offence cannot be held criminally responsible. In the Polish Penal Code, the institution of the statute of limitations has been regulated in Art. 101 of the Penal Code, according to which the punishability of an offence ceases if from the time of its commission it has elapsed:
– 30 years – when the act constitutes a crime of murder,
– 20 years – if the act constitutes another crime,
– 15 years – if the act is a misdemeanour punishable by imprisonment for a term exceeding 5 years,
– 10 years – if the act constitutes a criminal offence punishable by imprisonment for a term exceeding 3 years,
– 5 years – in the case of other offences.
On the other hand, the statute of limitations on enforcing a validly imposed sentence means the inability to enforce an already validly imposed sentence against a convicted person if a period specified by law has elapsed since the date on which the conviction became final. A sentence may not be enforced if the following period has elapsed since the conviction became final
30 years – in case of a conviction to a sentence of imprisonment exceeding 5 years or a more severe sentence,
15 years – in the case of a sentence of imprisonment for a term not exceeding 5 years
10 years – in the case of a different sentence.
The periods of limitation under Polish law, i.e., those specified in the Polish Penal Code, are decisive.
Example:
The crime of human trafficking is punishable by imprisonment for at least 3 years. Therefore, the statute of limitations for this crime shall expire after 20 years from the day on which the perpetrator acted. On the other hand, after the verdict of the Regional Court in Warsaw of 05.08.2021 sentencing the perpetrator of the crime of trafficking in human beings to 4 years of absolute imprisonment, it will no longer be possible to execute this punishment if until 27.08.2036 the sentence imposed has not been executed. The enforcement proceedings in the case of prescription of execution of the sentence shall be discontinued.
Criminal proceedings for the same act by the same person have been finally terminated.
This principle is referred to in Latin as ne bis in idem. It is a negative procedural prerequisite specified in Art. 17 par. 1 point 7 of the Code of Criminal Procedure. The essence of this premise is that proceedings shall not be instituted, and instituted proceedings shall be discontinued, if criminal proceedings for the same act against the same person have been finally concluded.
Prohibition to conduct proceedings in the meaning of Art. 17, par. 1, point 7 of the Code of Criminal Procedure takes place when proceedings concerning the same act committed by the same person have been finally concluded, while the new proceedings coincide with the subject matter of the proceedings in the already concluded case and when the subject matter of the proceedings is a part of the subject matter of the adjudicated case. Accepting a different legal qualification of an act, i.e., qualifying it under a different offence indicated in the regulations or differences in the description of the way the perpetrator acted, does not open the possibility for new proceedings. Also new proceedings are not allowed in the case of incomplete previous examination of the case. Res judicata does not allow for repeated proceedings against the same person for the same act in the legal sense.
The obstacle specified in the provision referred to above is updated by every final judgment, both a conviction (this also concerns the sentence on a warrant) and an acquittal or conditional discontinuance of proceedings, as well as every final decision concluding the case.
Example:
A citizen of Ukraine was charged in his country with the crime of theft. The public prosecutor presented him with a charge of theft consisting in the fact that on 10 July 2021 at 12:21 a.m. in an undetermined place he took an iPhone owned by an undetermined citizen of Austria for the purpose of appropriation. During preparatory proceedings surveillance video from the place where the theft was committed was secured, which indicated that another citizen of Turkey was the perpetrator of the crime. In view of the above, the prosecutor discontinued preparatory proceedings against the first suspect. The same Ukrainian citizen then came to the Republic of Poland to work. Subsequently, an application for the surrender of the Ukrainian citizen was submitted to the District Prosecutor’s Office in Warsaw because the Prosecutor reopened proceedings for the theft of an iPhone against the citizen of Ukraine, as a mistake had been made in the wrong identification of the perpetrator, who ultimately turned out to be the citizen of Ukraine. In this case, there is a negative procedural condition in the form of ne bis in idem, which results in legal inadmissibility of the surrender of the Ukrainian citizen.
Contradiction of surrender with Polish law and possible infringement of freedoms and rights of the surrendered person.
The likelihood of a violation of the rights and minimum procedural standards set out in Art. 3 (no one shall be subjected to torture or to inhuman or degrading treatment or punishment) and Art. 6 (everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law) of the European Convention on Human Rights must be apparent from findings with respect to the practice of the authorities of the requesting state in cases of this kind.
Evidence of the practice of the judicial authorities in the requesting state may be:
– official analyses of international organisations established to monitor compliance with the prohibitions against torture (e.g., the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment)
https://www.coe.int/en/web/cpt/poland
– official analyses carried out by human rights organisations (e.g. Humans Right Watch (https://www.hrw.org/), Helsinki Foundation for Human Rights (https://www.hfhr.pl/), Amnesty International (https://amnesty.org.pl/)
If an analysis of official documents of international organisations shows that the requesting state does not ensure basic standards of protection of human rights and minimum freedoms, then the premise of 'well-founded fear’ should be considered proven.
According to the case-law of the European Court of Human Rights, extradition is not admissible in a situation where the person whose extradition is requested could be subjected in the requesting country to torture or to treatment or punishment regarded as inhuman or degrading.
It would be contrary to Polish law to surrender a prosecuted person who in Poland or in another state has been granted refugee status pursuant to Art. 1 of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19911190515/O/D19910515.pdf
The assessment as to whether surrender is contrary to Polish law is a matter for the court deciding on the legal admissibility of extradition.
The person surrendered may be sentenced to death or executed.
The condition set out in that provision applies where the offence for which surrender is sought is punishable in the requesting state by the death penalty. However, that concern shall be eliminated if the requesting state guarantees under its law that capital punishment will not be imposed or, if it has already been imposed, that it will not be carried out.
For example, on the basis of Art. 67 of the Agreement No. 359 of 26 October 1994 between Belarus and Poland on legal assistance and legal relations relating to civil, family, labour and penal affairs, the states have restricted the application of the death penalty in such a way that if an offence is punishable by the death penalty under the law of the requesting state and is not punishable by such penalty under the law of the requested state, the death penalty may not be pronounced or carried out on the territory of the requesting state.
Examples of states where the death penalty is still carried out today are:
– Iran,
– Egypt,
– Iraq,
– Saudi Arabia,
– Republic of Belarus.
Relative grounds for refusal of surrender – competencies of the Minister of Justice
The obstacles listed in Art. 604 § 2 of the Code of Criminal Procedure, described as relative, are addressed to the Minister of Justice, who takes the final decision on the surrender. Relative obstacles may constitute grounds for refusal of surrender, even though surrender is not legally inadmissible.
Art. 604 § 2 of the Code of Criminal Procedure. provides that ‘surrender may be refused in particular’, which indicates that the catalogue of these obstacles is not exhaustive. Therefore, the Minister of Justice may also refuse surrender due to another circumstance not explicitly indicated in Art. 604 § 2 of the Code of Criminal Procedure.
If, on the other hand, the regional court found the legal inadmissibility of the surrender of the person prosecuted, the Minister of Justice has no power to change the decision of the regional court. He only issues a decision confirming the position of the regional court regarding the legal inadmissibility of surrender.
The situation is different in the case of all relative grounds, the catalogue of which is open. The Minister of Justice may refuse to surrender a prosecuted person even if the district court or the court of appeal has authorised the surrender.
Examples of relative premises are:
– the person concerned has a permanent place of residence in the Republic of Poland,
– the offence was committed on the territory of the Republic of Poland or on a Polish vessel or aircraft,
– criminal proceedings are pending with respect to the same act committed by the same person,
– the offence is subject to prosecution on a private prosecution,
– under the law of the state which submitted the request for surrender, the offence is punishable by deprivation of liberty for a term of up to one year or by a lesser penalty, or such a penalty has been ordered
– the offence for which surrender is requested is of a military or fiscal nature or is of a political nature,
– the requesting state does not ensure reciprocity (this principle means that one country grants certain rights to the citizens of another state if its own citizens enjoy the same rights in that country).
The Law Office Sawicki i Wspólnicy conducts many cases involving the surrender of persons prosecuted by foreign states and staying on the territory of the Republic of Poland. One of the cases of a Belarusian citizen was described by the nationwide daily newspaper Rzeczpospolita:
https://www.rp.pl/Prawo-karne/303159991-Polska-nie-dopusci-do-ekstradycji-Bialorusina.html
https://www.facebook.com/sawickiwspolnicy/posts/521432049202107
https://www.facebook.com/sawickiwspolnicy/posts/538918254120153
Feel free to contact our Law Office directly. Experienced lawyers will provide you with professional legal advice and will undertake your defence in the matter of extradition.
Authors:
Kamil Dolniak
junior lawyer
Piotr Sawicki
attorney-at-law
Extradition procedure.
Extradition proceedings serve the purpose of surrendering a prosecuted person at the request of a foreign state to conduct criminal proceedings against him or to execute a penalty or a protective measure imposed on him.
The proceedings are initiated by the competent authority of the foreign state (in the case of Belarus – the district prosecutor’s office competent for the place where the crime was committed), which submits to the competent authority of the state where the person stays a request for surrender of the prosecuted person. In case of Poland, the competent authority will be one of the district prosecutor’s offices with jurisdiction over, among others, the place of detention of the prosecuted person.
The prosecutor then interrogates the person and, if necessary, secures evidence located in the country, and having collected the material, transfers the case for surrender of the fugitive to the locally competent regional court.
The district court at the session shall give the prosecuted person an opportunity to give explanations verbally or in writing. The public prosecutor and the defence counsel of the prosecuted person, as well as a translator if the foreigner does not speak Polish, are entitled to take part in the session.
The prosecuted person has the possibility to apply for appointing him a defence counsel ex officio, if he duly demonstrates that he is not able to cover the costs of defence without detriment to necessary maintenance of himself and his family.
On the other hand, the court is obliged to appoint a defence counsel ex officio for a prosecuted person if there is a justified doubt whether the prosecuted person can conduct defence in an independent and reasonable manner, which particularly concerns foreigners residing on the territory of the Republic of Poland.
If there are no negative prerequisites with regard to the fugitive (e.g. Polish citizenship, statute of limitations, possibility of infringement of freedom and rights of the fugitive in the issuing state) and all positive prerequisites are fulfilled (i.e. double criminality of the act, commission of an offence in the territory of the state demanding surrender, competence of the authority requesting surrender of the fugitive, no doubts as to the identity of the fugitive and lack of exercise of the right of asylum by the fugitive), then the district court issues a decision on admissibility of extradition of the fugitive.
The decision of the regional court on extradition may be appealed against (Art. 603 § 4 of the Code of Criminal Procedure).
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19970890555/U/D19970555Lj.pdf
A complaint shall be served both against the decision declaring extradition admissible and against the decision declaring extradition inadmissible. If the decision on admissibility of extradition is final, i.e., no complaint is lodged or the complaint is not accepted, the district court transfers the case files together with the final decision to the Minister of Justice, who, having decided on the request, notifies the competent authority of the foreign state about it. The final decision on the legal admissibility of the surrender of the prosecuted person always rests with the Minister of Justice.
For the duration of the extradition proceedings, the person prosecuted may be remanded in temporary custody. Extension of temporary arrest for a period longer than 12 months may be made by a decision of the court of appeal. At the stage of judicial extradition proceedings, pre-trial detention may be applied for a period not exceeding 2 years including the period of pre-trial detention pursuant to the decision of the district court ruling on the legal admissibility of extradition.
A request for surrender of a prosecuted person must meet several formal requirements, which are specified, inter alia, by the International Covenant on Civil and Political Rights
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19770380167/O/D19770167.pdf
the European Convention on Human Rights
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19930610284/T/D19930284L.pdf
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment of 10 December 1984,
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19890630378/O/D19890378.pdf
as well as the European Convention on Extradition of 13 December 1957
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19940700307/O/D19940307.pdf
The request for surrender of the prosecuted person should be made in writing and delivered to the competent authority in the country in which the prosecuted person is present. In addition, the request shall be accompanied by the original or a certified copy of the decision enforceable in the prosecuting state and shall, inter alia, describe the factual acts for which the surrender of the prosecuted person is requested – including the time and place of the acts, their legal qualification, and an indication of the legal provisions applicable to the case.
Countries define the conditions for the execution of extradition in international agreements. An example may be the Agreement No. 359 of 26 October 1994 between Belarus and Poland on legal assistance and legal relations relating to civil, family, labour and penal affairs.
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19951280619/O/D19950619.pdf
In the agreement in question, the Republic of Poland and the Republic of Belarus have established, inter alia, the following conditions for extradition proceedings:
– surrender for the purpose of criminal liability shall take place only on account of such offences which, according to the laws of both countries, are punishable by a penalty whose upper limit exceeds one year of deprivation of liberty or by a more severe penalty,
– surrender for enforcement shall occur only for such an offence which is a criminal offence under the law of both countries and where the person whose surrender is requested has been sentenced to a penalty involving deprivation of liberty of at least six months or a more serious penalty,
– if the offence is punishable by death under the law of the requesting state and not punishable by the law of the requested state, the death penalty may not be pronounced or carried out in the territory of the requesting state,
– the request for extradition must contain the identification of the requesting authority, the text of the laws of the requesting state under which the act is considered an offence, the name of the person whose extradition is sought, details of his nationality and place of residence, a sketch of him, a photograph, and an indication of the amount of harm caused by the conduct of the person sought,
– the state receiving the extradition request shall take immediate measures for the provisional arrest of the person prosecuted.
Conclusion of an international agreement in the field of extradition results in the principle of reciprocity, which creates a presumption of good faith for each case of a request for surrender of a prosecuted person by a foreign state and obliges Poland to accept such a request.
When extradition relations between Poland and a third country are governed by an extradition agreement, the grounds for refusal of surrender should be sought first in the content of the agreement and only when this issue is not regulated by the agreement, should domestic regulations be applied (verdict of the Court of Appeal in Katowice of 02 March 2011, ref. II AKz 87/11, OSA in Katowice 2011, No 2, item 25).
Absolute positive conditions for the admissibility of surrender – international standards.
International standards conditioning extradition include such circumstances as:
– double criminality of the act, i.e., the committed act must be an offence in Poland and in the extradition requesting state,
– the offence committed in the territory of the state requesting extradition,
– request for extradition by a competent authority of the state demanding extradition,
– no doubts as to the identity of the prosecuted person,
– the fugitive person does not exercise the right of asylum.
These prerequisites must be fulfilled cumulatively, i.e., appear together for extradition to be possible. The absence of any of the above-mentioned prerequisites will result in the issuance of a decision on legal inadmissibility of this action.
Absolute grounds for admissibility – overview.
Double criminality of the act.
One of the basic conditions for the execution of extradition is double criminality of an act, consisting in the fact that in both states a given behaviour of the prosecuted person is a crime. It should be noted that what is at issue here is not the identity of sanctions, i.e., the punishment for a given act, i.e., whether both acts are punishable by the same punishment, e.g., from 1 to 5 years of imprisonment, but only a statement that both acts in Poland and in the extraditing country are crimes. For example, the equivalent of the Polish crime of fraud regulated in Art. 286 of the Polish Criminal Code is Art. 209 of the Criminal Code of the Republic of Belarus.
https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19970880553/U/D19970553Lj.pdf
Double criminality of an act occurs also when the offence provided for in Polish law corresponds at least in part to the elements (description of the offence) of the act covered by the motion, and also when under Polish law there is no identical type of offence as under the law of the requesting party, but the act described in the motion corresponds to the elements (meets the description) of one of the offences provided for in Polish law. The above means that acts committed by the person prosecuted do not have to have the same name in both countries, e.g., ‘fraud’, ‘theft’, ‘violation of physical inviolability’, the point is that the action of the perpetrator in both countries is an action subject to criminal liability.
The commission of an offence in the territory of the extradition requesting state.
The Polish court should be convinced that the presented evidence makes it sufficiently probable that a criminal offence has been committed by the person prosecuted in the territory of the requesting state. They do not have to be source evidence, if the facts making the commission of the act plausible, resulting from the application and the materials attached to it, do not raise any doubts.
Absolute negative grounds for inadmissibility of surrender – overview.
Polish citizenship of the perpetrator and exercising the right to asylum in Poland.
No surrender may take place if the person who is the subject of an extradition request is a Polish citizen or enjoys the right of asylum in the Republic of Poland.
The fact that the person who is the subject of an extradition request holds another citizenship besides Polish citizenship is irrelevant in this case.
A person benefiting from the right of asylum is only the person referred to in Art. 90 sec. 1 of the Act of 13 June 2003 on granting protection to foreigners within the territory of the Republic of Poland.
https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20031281176/U/D20031176Lj.pdf
According to this provision it is only a foreigner, i.e., a person who does not have Polish citizenship. The right of asylum is granted to a foreigner by the Head of the Office for Foreigners.
Granting the right of asylum requires two premises to be met cumulatively, i.e., the necessity to provide the applicant with protection on the territory of the Republic of Poland and an important interest of the Republic of Poland.
Example:
A foreigner of Afghan origin is an active community politician in Afghanistan. Due to the events of 15 August 2021, i.e., the coup d’état by the Taliban, the Islamic Emirate of Afghanistan has been re-established. The foreigner is not a supporter of the strict Sharia-based law and therefore refuses to join the new authorities of the Islamic Emirate of Afghanistan, which is not recognised by the international state bodies. As a result, there is a strong likelihood that he may face the death penalty or other persecution because of his political and religious views. The important interest of the Republic of Poland is revealed in the obligation to respect human dignity, the protection of which is the duty of the Republic of Poland.
The negative condition for issuing an extradition order will not be met regarding a person who:
– obtained a permit for tolerated stay (i.e., a person who was refused refugee status),
– obtained temporary protection,
– obtained the refugee status,
– declares an intention to apply for residence in Poland (decision of the Court of Appeal in Katowice of 4 September 2002, II AKz 846/02, KZS 2003, No 4, Item 75, SN of 11 January 2000, II KO 289/99, OSNKW 2000, No 3-4, item 38).
The mere initiation of proceedings aimed at obtaining asylum does not constitute an obstacle to issuing an extradition order either.
From the perspective of the existence of extradition obstacles listed in Art. 604 § 1 of the Code of Criminal Procedure the moment of actual surrender of a person to a foreign state is crucial. Obtaining Polish citizenship or asylum seeker status after the court has issued a decision on legal admissibility of surrender is therefore considered as an extradition obstacle.
Obstacle of limitation.
Pursuant to Art. 604 § 1 item 3 of the Code of Criminal Proceedings, surrender is inadmissible if the statute of limitations for an act has expired, or if the statute of limitations for the execution of a validly imposed sentence has expired – depending on whether the application concerns surrender for the purposes of instituting criminal proceedings or for the purposes of executing a sentence or a protective measure.
The statute of limitations is the period after which the perpetrator of an offence cannot be held criminally responsible. In the Polish Penal Code, the institution of the statute of limitations has been regulated in Art. 101 of the Penal Code, according to which the punishability of an offence ceases if from the time of its commission it has elapsed:
– 30 years – when the act constitutes a crime of murder,
– 20 years – if the act constitutes another crime,
– 15 years – if the act is a misdemeanour punishable by imprisonment for a term exceeding 5 years,
– 10 years – if the act constitutes a criminal offence punishable by imprisonment for a term exceeding 3 years,
– 5 years – in the case of other offences.
On the other hand, the statute of limitations on enforcing a validly imposed sentence means the inability to enforce an already validly imposed sentence against a convicted person if a period specified by law has elapsed since the date on which the conviction became final. A sentence may not be enforced if the following period has elapsed since the conviction became final
30 years – in case of a conviction to a sentence of imprisonment exceeding 5 years or a more severe sentence,
15 years – in the case of a sentence of imprisonment for a term not exceeding 5 years
10 years – in the case of a different sentence.
The periods of limitation under Polish law, i.e., those specified in the Polish Penal Code, are decisive.
Example:
The crime of human trafficking is punishable by imprisonment for at least 3 years. Therefore, the statute of limitations for this crime shall expire after 20 years from the day on which the perpetrator acted. On the other hand, after the verdict of the Regional Court in Warsaw of 05.08.2021 sentencing the perpetrator of the crime of trafficking in human beings to 4 years of absolute imprisonment, it will no longer be possible to execute this punishment if until 27.08.2036 the sentence imposed has not been executed. The enforcement proceedings in the case of prescription of execution of the sentence shall be discontinued.
Criminal proceedings for the same act by the same person have been finally terminated.
This principle is referred to in Latin as ne bis in idem. It is a negative procedural prerequisite specified in Art. 17 par. 1 point 7 of the Code of Criminal Procedure. The essence of this premise is that proceedings shall not be instituted, and instituted proceedings shall be discontinued, if criminal proceedings for the same act against the same person have been finally concluded.
Prohibition to conduct proceedings in the meaning of Art. 17, par. 1, point 7 of the Code of Criminal Procedure takes place when proceedings concerning the same act committed by the same person have been finally concluded, while the new proceedings coincide with the subject matter of the proceedings in the already concluded case and when the subject matter of the proceedings is a part of the subject matter of the adjudicated case. Accepting a different legal qualification of an act, i.e., qualifying it under a different offence indicated in the regulations or differences in the description of the way the perpetrator acted, does not open the possibility for new proceedings. Also new proceedings are not allowed in the case of incomplete previous examination of the case. Res judicata does not allow for repeated proceedings against the same person for the same act in the legal sense.
The obstacle specified in the provision referred to above is updated by every final judgment, both a conviction (this also concerns the sentence on a warrant) and an acquittal or conditional discontinuance of proceedings, as well as every final decision concluding the case.
Example:
A citizen of Ukraine was charged in his country with the crime of theft. The public prosecutor presented him with a charge of theft consisting in the fact that on 10 July 2021 at 12:21 a.m. in an undetermined place he took an iPhone owned by an undetermined citizen of Austria for the purpose of appropriation. During preparatory proceedings surveillance video from the place where the theft was committed was secured, which indicated that another citizen of Turkey was the perpetrator of the crime. In view of the above, the prosecutor discontinued preparatory proceedings against the first suspect. The same Ukrainian citizen then came to the Republic of Poland to work. Subsequently, an application for the surrender of the Ukrainian citizen was submitted to the District Prosecutor’s Office in Warsaw because the Prosecutor reopened proceedings for the theft of an iPhone against the citizen of Ukraine, as a mistake had been made in the wrong identification of the perpetrator, who ultimately turned out to be the citizen of Ukraine. In this case, there is a negative procedural condition in the form of ne bis in idem, which results in legal inadmissibility of the surrender of the Ukrainian citizen.
Contradiction of surrender with Polish law and possible infringement of freedoms and rights of the surrendered person.
The likelihood of a violation of the rights and minimum procedural standards set out in Art. 3 (no one shall be subjected to torture or to inhuman or degrading treatment or punishment) and Art. 6 (everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law) of the European Convention on Human Rights must be apparent from findings with respect to the practice of the authorities of the requesting state in cases of this kind.
Evidence of the practice of the judicial authorities in the requesting state may be:
– official analyses of international organisations established to monitor compliance with the prohibitions against torture (e.g., the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment)
https://www.coe.int/en/web/cpt/poland
– official analyses carried out by human rights organisations (e.g. Humans Right Watch (https://www.hrw.org/), Helsinki Foundation for Human Rights (https://www.hfhr.pl/), Amnesty International (https://amnesty.org.pl/)
If an analysis of official documents of international organisations shows that the requesting state does not ensure basic standards of protection of human rights and minimum freedoms, then the premise of 'well-founded fear’ should be considered proven.
According to the case-law of the European Court of Human Rights, extradition is not admissible in a situation where the person whose extradition is requested could be subjected in the requesting country to torture or to treatment or punishment regarded as inhuman or degrading.
It would be contrary to Polish law to surrender a prosecuted person who in Poland or in another state has been granted refugee status pursuant to Art. 1 of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.
http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19911190515/O/D19910515.pdf
The assessment as to whether surrender is contrary to Polish law is a matter for the court deciding on the legal admissibility of extradition.
The person surrendered may be sentenced to death or executed.
The condition set out in that provision applies where the offence for which surrender is sought is punishable in the requesting state by the death penalty. However, that concern shall be eliminated if the requesting state guarantees under its law that capital punishment will not be imposed or, if it has already been imposed, that it will not be carried out.
For example, on the basis of Art. 67 of the Agreement No. 359 of 26 October 1994 between Belarus and Poland on legal assistance and legal relations relating to civil, family, labour and penal affairs, the states have restricted the application of the death penalty in such a way that if an offence is punishable by the death penalty under the law of the requesting state and is not punishable by such penalty under the law of the requested state, the death penalty may not be pronounced or carried out on the territory of the requesting state.
Examples of states where the death penalty is still carried out today are:
– Iran,
– Egypt,
– Iraq,
– Saudi Arabia,
– Republic of Belarus.
Relative grounds for refusal of surrender – competencies of the Minister of Justice
The obstacles listed in Art. 604 § 2 of the Code of Criminal Procedure, described as relative, are addressed to the Minister of Justice, who takes the final decision on the surrender. Relative obstacles may constitute grounds for refusal of surrender, even though surrender is not legally inadmissible.
Art. 604 § 2 of the Code of Criminal Procedure. provides that ‘surrender may be refused in particular’, which indicates that the catalogue of these obstacles is not exhaustive. Therefore, the Minister of Justice may also refuse surrender due to another circumstance not explicitly indicated in Art. 604 § 2 of the Code of Criminal Procedure.
If, on the other hand, the regional court found the legal inadmissibility of the surrender of the person prosecuted, the Minister of Justice has no power to change the decision of the regional court. He only issues a decision confirming the position of the regional court regarding the legal inadmissibility of surrender.
The situation is different in the case of all relative grounds, the catalogue of which is open. The Minister of Justice may refuse to surrender a prosecuted person even if the district court or the court of appeal has authorised the surrender.
Examples of relative premises are:
– the person concerned has a permanent place of residence in the Republic of Poland,
– the offence was committed on the territory of the Republic of Poland or on a Polish vessel or aircraft,
– criminal proceedings are pending with respect to the same act committed by the same person,
– the offence is subject to prosecution on a private prosecution,
– under the law of the state which submitted the request for surrender, the offence is punishable by deprivation of liberty for a term of up to one year or by a lesser penalty, or such a penalty has been ordered
– the offence for which surrender is requested is of a military or fiscal nature or is of a political nature,
– the requesting state does not ensure reciprocity (this principle means that one country grants certain rights to the citizens of another state if its own citizens enjoy the same rights in that country).
The Law Office Sawicki i Wspólnicy conducts many cases involving the surrender of persons prosecuted by foreign states and staying on the territory of the Republic of Poland. One of the cases of a Belarusian citizen was described by the nationwide daily newspaper Rzeczpospolita:
https://www.rp.pl/Prawo-karne/303159991-Polska-nie-dopusci-do-ekstradycji-Bialorusina.html
https://www.facebook.com/sawickiwspolnicy/posts/521432049202107
https://www.facebook.com/sawickiwspolnicy/posts/538918254120153
Feel free to contact our Law Office directly. Experienced lawyers will provide you with professional legal advice and will undertake your defence in the matter of extradition.
Authors:
Kamil Dolniak
junior lawyer
Piotr Sawicki
attorney-at-law
