On 17 September 2015, the High Court dismissed the appeal of Andrzej Komar against his extradition from the United Kingdom to Poland. The Court rejected Mr Komar’s grounds of appeal that the European Arrest Warrant issued for his arrest was ambiguous, that there had been culpable delay, erroneous treatment of Article 8 of the European Convention on Human Rights (ECHR) application, and on proportionality. The judgment is here.
It is alleged that between 2 July 2001 and 1 April 2003, Mr Komar committed ‘offences against the credibility of documents’, in his capacity as the owner of the company, ‘PW Agrol Company’, through the issuance of 1780 VAT invoices for other companies.
In these invoices, Mr Komar allegedly ‘confirmed the untruth’ (in essence committed a forgery, although such terms are not used in the judgment), as to the fact of the sale of diesel oil, through which he made a financial gain of not less than 420,000 Polish Zloty. The maximum sentence for the offence is 12 years’ imprisonment. Mr Komar denies any wrongdoing.
Proceedings were commenced against Mr Komar in relation to the offences comprising the appeal in December 2005 (although Mr Komar was, in fact, sought as far back as the end of 2003 in connection with a separate set of proceedings relating to further seized VAT invoices). The decision to charge him was made on 30 May 2006. Proceedings in Poland were suspended in November 2006, as Mr Komar’s whereabouts were unknown.
On 30 August 2013, the Polish judicial authority was informed that Mr Komar was located in the UK. A domestic warrant was issued for his arrest and, on 20 December 2013, a European Arrest Warrant was issued for his arrest.
District Judge Blake, 21 May 2015
Mr Komar made three unsuccessful applications to adjourn proceedings, before District Judge Blake ordered his extradition on 21 May 2015. Mr Komar appealed the decision to the High Court, on the following grounds:
- The EAW was not a valid warrant under s. 2 EA 2003. There is real ambiguity. The EAW had not been issued for the purposes of prosecution. Parts of the warrant indicated that it was an ‘accusation’ EAW; however, the EAW also indicates that Mr Komar is not to have appeared for the ‘trial’ and is referred to as a ‘sentenced person’ with pre-trial rights, suggesting that the EAW is consistent with a conviction warrant.
- Passage of time under s. 14 EA 2003. Few measures were undertaken to locate Mr Komar in the UK, and a further delay in issuing the EAW occurred in 2013.
- District Judge Blake did not conduct the balancing exercise for Article 8 ECHR.
- Extradition would be disproportionate under s. 21A EA 2003: the allegations are 12 to 14 years old, Mr Komar was unaware that criminal proceedings had been initiated against him; Polish authorities have not yet sought to summon him to trial; the allegations do not suggest that he would be an immediate risk to the public requiring immediate detention; and he has an established private and family life in the UK where he has lived for 12 years.
High Court, 17 September 2015
The Honourable Mr Justice Cranston held, rejecting all grounds of appeal:
- The statement in the EAW that Mr Komar did not appear at the ‘trial resulting in the decision’ does not create ambiguity in light of the clear indication in boxes B and C of the EAW that Mr Komar has not been convicted. Taking a cosmopolitan approach, reference to ‘the trial’ was a reference to the decision of the Polish Court on 20 December 2013, which resulted in the domestic warrant being issued for Mr Komar’s arrest. Reference to ‘sentenced person was a perpetrator’ was a mistranslation.
- The delays are troubling. However, the delay between 2003 and 2006 may be due to the fact that the VAT frauds were complex. Further, the issue for consideration is the effect of delay and the events which have taken place, had the request been made promptly. Kakis considered. Even if some delay is culpable, the high threshold for oppression has not been reached.
- The balancing exercise for Article 8 ECHR was conducted, and Celinski applied. Delay is a factor; however, District Judge Blake concluded that the public interest in extradition outweighed the interference it would cause to Mr Komar’s private and family life. H(H) applied.
- Extradition is proportionate in light of the seriousness of the conduct and the likely penalty on conviction. There has been a substantial delay but this is because the Polish authorities could not locate Mr Komar. Considering the issue of less coercive measures available to Poland, no such measures were available. First, temporary transfer would not work because Mr Komar would be arrested in Poland, pursuant to the domestic warrant in existence for his arrest in the country. Second, the possibility of removal of the EAW, subject to a security of 50,000 Polish Zloty, was not available because Mr Komar could not afford this sum. Third, a so-called ‘Iron Letter’, guaranteeing Mr Komar a safe passage to Poland for questioning, had been refused by the Circuit Court in Czestochowa, during the course of Mr Komar’s adjournment applications. Fourth, an order made under the Framework Decision, for a European supervision order as a less intrusive means of securing Mr Komar’s attendance at trial, is not able to delay extradition proceedings under an EAW. The Court added that the High Court is not able to question the reasons given by the judicial authority in the requesting state for rejecting less coercive measures.