A surrender of a foreign citizen by Poland is possible only in strictly defined cases. Moreover, in order for a citizen to be extradited, the so-called negative premises, i.e., excluding legal admissibility of the extradition, must not occur.
Negative premises for extradition are established in Article 604 of the Code of Criminal Procedure, which provides that surrender is inadmissible if:
- the person to whom the application relates is a Polish citizen or has the right of asylum in the Republic of Poland;
- the act does not contain the qualities of a prohibited act or the act does not constitute an offense or the perpetrator has not committed an offense or is not liable to punishment;
- the statute of limitations has passed;
- criminal proceedings concerning the same act committed by the same person have been finally terminated;
- it would be contrary to Polish law;
- there is a justified fear that in the country demanding surrender the person surrendered may be sentenced or executed under the death penalty;
- there is a justified fear that in a state demanding surrender, the freedom and rights of the person surrendered may be violated;
- concerns a person who is being prosecuted for the commission of a non-violent politically motivated crime.
Moreover, detailed provisions of a legal assistance agreement concluded between Poland and another country may specify additional negative premises.
Extradition takes place on the basis of an agreement between Poland and another country. Only the existence of an international agreement on mutual legal assistance entitles the foreign country to request Poland to surrender its citizen who is currently staying in Poland. Lack of such an agreement between Poland and a foreign state makes it impossible to surrender a citizen at the request of such a state.
Firstly, if the requested person is a suspect, the application of the foreign state is sent to the locally competent prosecutor’s office. Upon the order of the prosecutor’s office, the foreign citizen is usually brought to the prosecutor’s office to be charged and questioned. Then, the application of the foreign state is sent to the locally competent Regional Court, which decides whether the transfer of the person is legally admissible or not. The court may then also decide to remand the person in custody. If the transfer is found to be legally permissible and the decision becomes final, the application of the foreign state is sent to the Minister of Justice, who gives or withholds his consent to the transfer of the citizen. Only if the Minister of Justice consents to the transfer, the foreign national may be transferred.
It should be noted that the District Court’s finding that the surrender of a foreign citizen is legally permissible does not automatically result in the Minister of Justice’s consent to the surrender.
In one of our cases, we were appointed at the stage after the Court of Appeal issued a decision, upholding the District Court’s decision, stating the legal admissibility of the surrender of the Belarusian citizen. As it turned out, this citizen was prosecuted in Belarus as a result of refusing to provide Belarusian law enforcement agencies with information about persons cooperating with a candidate for the office of President of Belarus, posting in social media slogans and posts condemning the actions of the government of Belarus and organizing various anti-government rallies. As a result of his refusal to cooperate with the Belarusian law enforcement agencies, the citizen was warned that criminal proceedings would be initiated against him for alleged actions from several years ago. Due to the fear of being charged in retaliation for his refusal to cooperate and the fear of unfair trial, the citizen decided to leave for Poland. After several months, he was apprehended here and was charged with crimes committed between 2014 and 2018, as well as being placed under temporary arrest.
While awaiting the decision of the Ministry of Justice, we applied to the Office for Foreigners to grant the aforementioned citizen refugee status, in connection with his flight from Belarus for fear of being persecuted for political reasons. In the course of the proceedings, evidence was provided to confirm the reason for the Belarusian citizen’s departure to Poland. Ultimately, the Office for Foreigners granted him refugee status. As a result of the above-mentioned circumstance, despite the legally valid decision stating the admissibility of the Belarusian citizen’s surrender, the Minister of Justice issued a decision refusing to consent to the surrender of the aforementioned citizen, citing the negative reason for granting the refugee status. Based on the decision of the Office for Foreigners, the District Court revoked the detention of the aforementioned citizen.
According to our experience, there are more and more applications from Belarus for the surrender of their citizens.
As the above example shows, a decision declaring extradition admissible does not always mean that a citizen will be actually extradited. Meanwhile, the proceedings, which may seem to be conducted in a “schematic” way, may eventually turn out to be for the person concerned a complete reversal of his initial procedural situation. In criminal cases, it is particularly important because often such cases have major implications on a person’s life.