Extradition Requests | Why Article 8 ECHR Will Succeed Only in ‘Rare Cases’
Extradition requests can be made by foreign jurisdictions who seek to secure the return of an individual to the Requesting State, to stand trial for an alleged criminal offence or to serve a sentence which has previously been imposed.
When considering an extradition request, a UK Court will seek to balance, amongst a range of issues, the requirements of Article 8 of the European Convention on Human Rights (‘Article 8’) and the law of the Requesting State.
In Andrysiewicz v Circuit Court in Lodz (Poland) [2025] UKSC 23, the Supreme Court considered whether a request by Poland for extradition under Article 77 of the Polish Penal Code, for the purpose of fulfilling a custodial sentence, would unjustifiably impede the requirements of Article 8.
Although the request by the Polish authorities had been withdrawn, its purpose having been fulfilled, the Supreme Court opted to continue with consideration of the Appeal in order to resolve important considerations concerning the relevance of the early release provisions contained within Article 8, the interpretation of which had resulted in conflicting decisions in a number of historical cases in the High Court.
Amongst the issues which fell for consideration was the following; If a person in respect of whom an extradition request had been made, might be released early from a pending prison sentence in the Requesting State, should this affect the proportionality assessment under Article 8?
Consideration had to be given to the differing circumstances which may arise between the availability of an ‘automatic release’ and a ‘discretionary release’ given that, in the latter instance, it is difficult for a UK Court to predict if or when the release may be conducted.
Ultimately, the Supreme Court provided definitive clarification on how UK Courts should proceed by stating conclusively that the early release provisions in Article 8 will only be relevant in ‘rare cases.’
Helen Holder, a Partner at KANGS, outlines the background to Andrysiewicz v Circuit Court case, and the key points of the Supreme Court decision.
The Background
In 2016, Ewa Andrysiewicz (‘the Appellant’) was convicted in Poland of fraud offences which had occurred between 2007 and 2008. She was given a two-year prison sentence which was suspended for five years subject to observance of various conditions, including the payment of a fine.
As the result of her failing to comply with those suspension conditions, the Polish authorities activated the sentence in 2018 and, in 2020, issued an Arrest Warrant and sought her extradition from the UK to serve her sentence in Poland.
She was arrested in London on 21st January 2023 and remanded in custody. An extradition hearing followed and despite her opposition to extradition, relying on Article 8, on 23rd May 2023 at Westminster Magistrates’ Court, she was further remanded in custody.
An appeal against that Order was heard on 21st May 2024 and dismissed on 11th June 2024, when the Judge, Swift J, certified the following two points of law of general public importance, affecting the correct approach to the possibility of early release in Poland.
When the court is considering whether extradition pursuant to a conviction warrant would be a disproportionate interference with Article 8 rights:
- what weight can attach to the possibility that, following surrender pursuant to the warrant, the requesting judicial authority might, in exercise of its power permit the requested person’s release on licence (the early release provisions)? and
- to what extent, if at all, should the court assess the likely merits of an application under the early release provisions, either that the requested person has made, or that he may make?
The Judge identified three possible options:
- Option 1. Any application for early release is solely a matter for the Polish courts to which a Judge can attach no weight in the Article 8 assessment.
- Option 2. The Judge can acknowledge the existence of a power to release on licence but attach little weight to it in the Article 8 assessment, except in rare cases.
- Option 3. The Judge can assess the likely merits of an application for early release and attach significant weight in the Article 8 assessment to any ‘good prospects’ or ‘real possibility’ of success.
Swift J refused permission to appeal but such permission was granted on October 17th 2024, when an expedited hearing was ordered and fixed for 13th March 2025.
By 21st January 2025, the Appellant had served the equivalent of the entire sentence which had been imposed by the Polish court.
In view of this, the Polish judicial authority withdrew the extradition warrant, and the Supreme Court ordered the Appellant’s discharge and quashed the Extradition Order. However, the Supreme Court decided to hear and rule on the Appeal in order to clarify conflict on various points of law contained in previous decisions of the High Court.
Article 77 of the Polish Penal Code.
- The court may conditionally release a person sentenced to the penalty of deprivation of liberty from serving the balance of the penalty, only when his attitude, personal characteristics and situation, his way of life prior to the commission of the offence, the circumstances thereof, as well as his conduct after the commission of the offence, and while serving the penalty, justify the assumption that the perpetrator will after release respect the legal order, and in particular that he will not re-offend.
The Supreme Court Judgment
The Court acknowledged that it is unrealistic not to recognise the existence of Article 77 of the Polish Penal Code and that the early release provisions in Poland are not automatic, but the possibility of early release is a discretionary act of grace on the part of the Polish Courts.
It agreed with the acceptance of Option 2 of the alternatives followed by Swift J, set out above, and that, save in rare cases, a UK court should not embark on predicting the likelihood of the outcome of the application in Poland.
The Court, whilst acknowledging the importance of Article 8’s preservation in extradition proceedings, stated that the consequences of interference with it must be exceptionally serious before this can outweigh the importance of extradition.
It reaffirmed that Article 8 defences to extradition will only rarely succeed, and only where the impact on family life is exceptionally severe. More often than not, extradition proceedings that stand to impede the rights protected by Article 8, will be a secondary consideration to ensuring an offender is punished.
The Relevant Law
Article 8 of the European Convention on Human Rights (‘ECHR’).
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well -being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Definition of a ‘Rare Case’
The Court defined a ‘rare case’ as one where there is agreed or uncontested evidence demonstrating an ‘overwhelming probability’ of all four of the following:
- that the Requested Person would be released upon application under the relevant legal provisions,
- when that release would take place,
- the specific probation period and conditions that would apply,
- that the English Court’s inability to impose or supervise such conditions would not adversely affect either the offender or the public.
The Conclusion
The detailed Judgment in this reported case shows that public interest in extradition carries significant weight, and that only exceptionally severe consequences of interference with family life could overweigh that interest.
Cases where Article 8 arguments defeat extradition are now unlikely to succeed unless they clearly meet the ‘rare case’ criteria. The Judgment emphasises the practical limitations on UK courts predicting outcomes in foreign jurisdictions.
How Can We Assist You?
The team at KANGS provides extensive experience in handling extradition proceedings of every nature. If you are concerned about possible extradition for alleged offences or convictions abroad, reach out to us. Our solicitors offer confidential advice and professional legal support.
If we can be of assistance, please do not hesitate to contact us:
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Email: info@kangssolicitors.co.uk
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