Extraditions should finally be taken seriously
Some 70–80 extradition requests are filed every year with the Polish authorities, to turn over persons to stand trial before a foreign court or serve a punishment abroad. Nearly half of them are issued by authorities of the Russian Federation or Belarus. These authorities demand that Poland turn over not only Russian or Belarusian citizens, but also citizens of other countries, including Ukraine. According to our findings, in the overwhelming majority of cases, the Polish authorities grant the request and turn over the individual.
For nearly two years we have defended a Ukrainian citizen whose extradition was sought by the Russian authorities. The Polish courts found that his extradition was legally permissible, and in early February the Minister of Justice consented to his extradition. While Russian forces were massing along the Ukrainian border and the American authorities were sharing intelligence about the “nearly certain invasion,” the Polish authorities prepared a convoy to deliver our client to the Russian border. It was only the outbreak of war that resulted in a stay of execution of the order, followed by a change in the decision.
As it later turned out, an application to reconsider the minister’s decision was filed not only by us, but also, in an unprecedented move, by the court that had earlier found that the extradition was legally permissible. This case, like dozens of others decided by the Polish courts, gives pause for deeper reflection on how the Polish authorities, courts and politicians consider extradition requests.
In practice, the procedure most often begins with detention in Poland of a person sought by foreign authorities via an Interpol notice or diffusion. The detainee is typically ordered to be held in detention—for months or even years—and the foreign authorities are notified and have a certain amount of time to transmit an extradition request. This document reaches the prosecutor’s office, which is required to evaluate it. If it meets the legal requirements, the prosecutor’s office will commence a judicial proceeding to decide whether extradition is legally permissible.
The judicial proceeding is held at two instances. The courts must determine whether all the legal requirements for extradition are met (affirmative grounds) and that there are no bars to extradition (negative grounds). The judicial proceeding ends in a decision on the legal permissibility of extradition. If the courts do not consent to the extradition, the individual will not be handed over (although the Polish authorities may take over the prosecution and proceed against the individual in Poland). But if the courts recognise the legal permissibility of the extradition, the matter will head to the Minister of Justice, who will take the ultimate decision. The minister must re-examine the grounds for permissibility of extradition, but his decision may also be informed by political considerations.
The prosecutor’s role
It appears from our experience that the prosecutor’s offices quite uncritically accept and uphold extradition requests from foreign authorities. This concerns not only the quality of the submissions—the requests are usually perfunctory, while the enclosed documents are selective, disordered, sometimes illegible, and even may involve entirely different persons, while the translations are often made by machine. We have rarely encountered situations where the prosecutors critically verified the documents they received and decided not to uphold evidently incomplete requests.
However, prosecutors are responsible for implementing the principle of “proper response.” In the extradition context, this means that they must not be “hired guns” standing in for the foreign authorities, but must objectively verify the requests and counteract abuses. If a request from a foreign country is incomplete, it should not be upheld and pursued by the prosecutor’s office. If the information provided raises doubts or is not explained, the request should not be presented to the court.
It has been our experience that the courts also do not take a critical approach to extradition requests, the allegations set forth in the requests, or the enclosed materials. The courts are hesitant to thoroughly analyse the risk of infringement of human rights or the quality of the diplomatic assurances they receive. The courts take the view that they are required to verify whether extradition requests meet the formal requirements, but should not conduct a “re-trial” to determine the respondent’s guilt.
This is true. However, this does not release the courts from the obligation to objectively verify the documents presented by a foreign country. The court must be convinced that the material presented at least makes a prima facie showing of commission of the alleged offence. Thus verification is essential. Any doubts or inconsistencies that are not explained should be interpreted in favour of the requested person.
The same applies to the risk of infringement of human rights—particularly the right to a fair trial and the manner of treatment of prisoners. In this respect, the courts often find that the asserted risks are hypothetical and it is hard to assume that such an infringement would actually affect the respondent. But the point is that we talk about the risk and by its very nature the degree of probability has to be assessed. In this context the courts must be open to various means of evidence (reports from NGOs, and clarifications from experts, including foreign experts), but the state should also provide guarantees enabling such materials to be obtained and presented, which can sometimes require high costs to be incurred. Not all respondents can afford to finance the sourcing of such materials themselves.
The courts also should not uncritically accept diplomatic assurances as guarantees dispelling the risk of infringement of human rights. Based on our experience, the diplomatic assurances provided to the Polish authorities can be much less specific than those provided in similar cases, by the same countries, to the authorities of countries other than Poland. This probably results from a belief that under the Polish procedure, submission of diplomatic assurances is a mere formality and the courts in any event do not have the instruments at their disposal to examine their soundness. For example, the diplomatic assurances submitted to the British courts which we have seen may run to some 20 pages and even indicate the specific unit where the subject is to serve his sentence after being extradited. The diplomatic assurances provided to the Polish authorities which we have seen are generally limited to a rote statement that the subject’s human rights will be respected.
Finally, it is hard to accept the practice where the courts refuse to have the respondent brought in to attend the court session, particularly before the appellate courts. We understand that an appearance in court by a detainee poses a logistical challenge, but that should not be the judge’s concern. It is hard to understand issuing a decision on the legal permissibility of extradition where the judge has never looked the person in the eye.
Decisions by the Minister of Justice
By its nature, the procedure before the Minister of Justice is not transparent. We have no illusions about that. We realise that this decision has a political dimension and must take into account numerous aspects we may be unaware of. But this does not mean that the decision-making process can be entirely arbitrary. It must be governed by principles of fairness and efficiency.
We believe that the time allowed for the Minister of Justice to reach a decision should be specified in the regulations. We believe that the public should be informed of extradition cases on a regular basis, and all interested parties, particularly NGOs, should be able to present their views, much like an amicus curiae. As we picture it, the Ministry of Justice could publish information on matters it is considering, set deadlines to submit positions, and consider them when taking a decision. Decisions would also have to be objectively justified in writing, and would be served on the defendant and counsel, the Ombudsman, and the diplomatic representatives of the defendant’s home country.
The regulations should also provide for the possibility of deferring a decision to enable filing of a request for reconsideration or an application to the European Court of Human Rights. Finally, each year the Ministry of Justice would be required to publish statistics on extradited persons, and together with the Ministry of Foreign Affairs oversee compliance with diplomatic assurances. Any instances of impeding such oversight, or infringement of diplomatic assurances as provided, would also be published and taken into consideration when considering future extradition requests from that country.
We base our bitter reflections on the experiences in cases conducted by us and by our colleagues. They may not apply to all extradition cases in Poland, but undoubtedly these problems are frequently encountered. They do not arise out of the bad faith of prosecutors, judges or bureaucrats, but are due to systemic deficiencies (such as overburdening of prosecutors and courts, and a lack of training) and the general perception that such cases are incidental and unimportant.
But the stakes in extradition cases are high indeed, sometimes directly impacting human life and health. We must take extradition cases seriously as a matter of course, not only in exceptional circumstances.
Łukasz Lasek, adwokat, dr Artur Pietryka, adwokat, Business Crime practice, Wardyński & Partners
This article originally was available on Dziennik Gazeta Prawna