As a neighbouring country of Germany, it should come as no surprise that there are extensive extradition proceedings between Germany and Poland. In 2021, 359 extradition requests from Poland were handled in Germany. These were mostly based on offences such as theft, fraud, battery, road traffic offences, and counterfeit charges.

The process of extradition is a legally complex affair and can be very burdensome for the person affected. Our team of extradition and Interpol lawyers offers extensive knowledge in extradition law, current jurisdiction as well as long-standing experience in defending our clients against European Arrest Warrants and Interpol Red Notices. Please do not hesitate to contact us now for skilled and timely legal advice.

Poland became a member of the European Union in 2004, the same year the European Arrest Warrant (EAW) came into force in the EU. The European Arrest Warrant serves to streamline the extradition process between European Union member states and allow them to pursue prosecutions and custodial sentences across EU borders. An EAW is valid in the entire Union and can have severe consequences for the person affected. Considering this severity, states must carry out a proportionality check prior to issuing the EAW. This must consider all relevant factors, including the severity of the offence, the likely penalty, the interests of the victim of the offence and the likelihood of detention in the issuing member state, to determine whether the EAW is justified.

A primary principle of the EAW is the principle of mutual recognition. This principle allows direct contact between judicial authorities and means that within the EU, there is a level of trust, based on the fundamental values on which the Union is established, that the necessary criteria regarding the issuance of an EAW will be met by the other member states. This presumption of trust makes defending against an EAW more intricate and requires experienced and skilled legal assistance.

The Russian war of aggression poses severe challenges for Ukraine’s public organizsation in all areas, including compliance with international agreements and treaties. In a statement from April 2022, two months after the Russian Invasion of Ukraine started, the Permanent Mission of Ukraine to the Council of Europe has stated that the Ukrainian side would not be able to fully implement its obligations under certain international treaties for the period of the armed aggression of the Russian Federation. That being until the violation of Ukraine’s sovereignty is fully terminated and territorial integrity of Ukraine’s borders is guaranteed. These agreements also include the European Convention on Extradition and its additional protocols.

However, there are still extradition requests from Ukraine. Just recently in November 2023 a French court was faced with a Ukrainian extradition request concerning an individual wanted for embezzlement. The French court decided that the applicant state, Ukraine, is unable to guarantee that the individual will be brought before a court capable of guaranteeing basic procedural guarantees and therefore refused the request.

The competent judicial authority of Poland must issue the EAW. It needs to include:

• the identity of the person sought,
• their nationality,
• a description of the offence and the circumstances in which it is suspected to have happened, like time and place,
• the degree of participation,
• and the maximum penalties for the offence.

The offence must be punishable by imprisonment for a minimum period of at least one year or the execution of a custodial sentence or detention order when the sentence passed has to be of at least 4 months to meet the minimum threshold laid down by the EAW Framework Decision.

• An EAW has a strict time limit. The state in which the person has been arrested has to make a final decision on the execution of the EAW within 10 days, provided the requested person consents to his or her surrender. If not, the decision must be made no later than 60 days after the arrest.
• Double criminality check: the offense must be a crime in Poland and the requested country; however, this is not required for the 32 categories of offences laid down in the framework decision for the EAW. These include offenses like arson, kidnapping, rape, and terrorism.
• Decisions on the issuance must be made by the Polish authority without any political considerations.
• The Polish judicial authority must have carried out a “proportionality check” (see above).

Further possible obstacles to an extradition request must always be examined according to the specific situation of our client. Grounds for refusal to execute a European Arrest Warrant can be found in the framework decision on the European Arrest Warrant and the International Mutual Assistance Act. Article 3 of the Framework Decision on the European Arrest Warrant lists reasons in which case the requested member country “shall” refuse to execute the arrest warrant. These are as follows:

• Amnesty: the offence, the arrest warrant is based upon, is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law,
• The requested person has already been judged by a Member State in respect of the same acts,
• Incapacity: a lack of criminal responsibility due to their age or mental state.

Article 4 lists the grounds for optional non-execution of the European arrest warrant:

• parallel criminal proceedings are pending in the requested country.
• When the requested Member State has decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings.
• Statute of limitations: the prosecution is already statute-barred.
• if the European Arrest Warrant has been issued for the purpose of execution of a custodial sentence or detention order and the requested person is located in the requested state and the requested state undertakes to execute the sentence or detention order in accordance with its domestic law.
• The offence has been committed in whole or in part in the territory of the requested state.
• The offence has been committed outside the territory of the issuing Member State and the law of the requested state does not allow prosecution for the same offences when committed outside its territory.

Other, additional extradition obstacles stated in § 83 of the International Mutual Assistance Act are:

• when a judgment was passed in absentia,
• the prospect of life imprisonment.

A highly controversial judicial reform, as well as several rulings by the Polish Constitutional Court, have given rise to concern in recent years and reinforced the assumption that the independence of the courts in Poland is currently not guaranteed and that the right to a fair trial is at risk. Recently, it is therefore possible and common that extradition to Poland will be rejected by German courts for this reason.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Polish Prisons in September 2020 and had to report the following:

• Allegations of physical ill-treatment: inmates reported about painful and prolonged handcuffing, slaps, and kicks during questioning inside the police station, excessive force in terms of being handcuffed behind the back and pressed against the ground with the face down.
• Allegations of verbal abuse and threats.
• Inmates were systematically deprived of the possibility of contacting their lawyer.

Additionally, the delegation that visited was briefed on a recent modification in legislation. According to both the Human Rights Commissioner and representatives from non-governmental organizations (NGOs), this amendment could be construed as potentially enabling courts to admit evidence acquired through torture and various other types of ill-treatment.

We, at Schlun&Elseven have frequently worked on legally complex extradition cases and have longstanding experience in dealing with European Arrest Warrants and all other types of extradition requests.  

Our line of action is to start by analysing our client’s case and circumstances in detail and examine on what grounds the extradition request can be challenged. We are also aware of how time-sensitive defending against extradition is and will work tirelessly to invalidate any charges against our clients. Please do not hesitate and contact our team now for timely and tailored legal advice.