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The emperor’s new clothes? Specialty protection in Poland

The Divisional Court has handed down judgement in the case of Kortas v Poland [2017] EWHC 1356, in which it considered a challenge to the efficacy of specialty protection in Poland.

Specialty protection is the principle whereby a requesting state undertakes not to try or punish a requested person for any offence committed prior to extradition, save for the offences for which he or she has been extradited. The principle is crucial to the operation of extradition arrangements and is enshrined in the Framework Decision, which established the European Arrest Warrant Scheme.

The vexed question of specialty protection in Poland has given rise to litigation in the Divisional Court previously. Poland permits the imposition of ‘merged sentences’ for multiple offences. Where a requested person’s extradition is ordered for some, but not all, of the offences for which the merged penalty was imposed, the requesting state must ‘de-merge’ or ‘disaggregate’ the sentence to ensure that the requested person does not serve time for an offence for which he was not extradited. This appears to be difficult to achieve, in practice.

In the Divisional Court case of Brodziak v Poland [2013] EWHC 3394, the appellants produced expert evidence to show that the polish judicial authority could not disaggregate a merged penalty. Richards LJ was troubled by this evidence but concluded that the presumption that a member of the EAW scheme would respect specialty was not rebutted, because the law theoretically allowed disaggregation in certain circumstances, and “there is no evidence … of even a single case in which an extradited person has been required in practice to serve a sentence relating in whole or in part to an offence for which he was not extradited.”

The Appellant’s legal team in Kortas tracked down the 3 appellants in the case of Brodziak to see whether their sentences had been disaggregated. It transpired that 2 of the 3 appellants’ Mr Brodziak and Mr Dunec, sentences were not disaggregated. Expert evidence pointed to a systemic issue.

Perhaps surprisingly, the Divisional Court in Kortas concluded that the presumption of compliance had not been rebutted. It did note that “a potential problem of communication arose” and set down the following guidance to deal with the issue:

1. In the event that a requested person is extradited for some but not all of the offences specified in a conviction warrant, it is necessary for that information to be conveyed to the Polish judicial authority in unequivocal terms. The order issued by Westminster Magistrate’s court should make the position clear.

2. The CPS must inform the judicial authority of the outcome; and

3. The written judgement of the district judge, or the divisional court if appropriate, should accompany the requested person on surrender.

In the future where specialty issues may arise practitioners should ensure that the above guidance is put into place. It may be that the guidance will be sufficient to deal with the issue. If it is not, further litigation will be necessary.

The issue of specialty protection and ‘merged’ sentences arises in a number of other jurisdictions. Romania and Hungary seem to operate a similar sentencing policy. As with ongoing prison conditions litigation, it seems that evidence from persons who have been previously extradited is what is required to challenge the oft-mentioned presumption that Member States will act in accordance with their international obligations.

Emilie Pottle of 36 Extradition was led by Hugh Southey QC and acted for the Appellant in this case.

A full copy of the judgement is available here.

Florence Iveson of 36 Extradition was led by Mark Summers QC acted for the Respondent.