Extradition

Convention rights - Prison conditions in Poland

Krolik and others v Several Judicial Authorities of Poland: Queen's Bench Division, Administrative Court (London) (Sir John Thomas P and Mr Justice Globe): 17 August 2012

Six appeals were heard together as they raised the same issue, namely, whether the appellants' extradition, pursuant to either an accusation or a conviction European arrest warrant, would constitute a breach of article 3 of the European Convention on Human Rights by reason of prison conditions in Poland. The court had before it a report prepared on behalf of the appellants and two letters from the Ministry of Justice (the ministry) in Poland (dated 19 April 2012 and 19 July 2012) regarding conditions in Polish prisons. The appeals would be dismissed.

In future: (i) any appeal that raised the issue of Polish prison conditions had to (a) clearly identify any new factual issues not considered in the instant appeal or earlier cases which were said to give rise to a breach of article 3 of the Convention by reason of the conditions in Polish prisons, (b) set out a summary of the evidence relied upon in support, and (c) explain how it met the criteria for evidence capable of rebutting the presumption that a member state of the Council of Europe was able and willing to fulfil its obligations under the Convention; (ii) any such appeal would be listed within days of it being lodged at the court; if there were no new factual issues and the evidence was not of the type identified, the court would consider whether it should be heard then and there and, if appropriate, dismissed; (iii) as it was highly unlikely that new factual issues would arise or that the type of evidence required would be provided, it was anticipated that there would be few, if any, further appeals which raised the issue; and (iv) district judges should required a requested person or the advocate representing the requested person who sought to raise an issue under article 3 of the Convention relying on Polish prison conditions to identify any new factual issues not considered in the instant appeal or earlier cases and whether the evidence in support was of the type identified; if the requested person or his advocate failed to do so, then the district judge should ordinarily be entitled to deal with the claim briefly by relying on the decisions of the instant court (see [10] of the judgment).

The law was clear. First, the circumstances in which the instant court as appellate court could be provided with evidence under section 29(4) of the Extradition Act 2003 with evidence which was not adduced before the district judge was set out in Szombathely City Court v Fenyvesi [2009] 4 All ER 324. If there was an intention to rely before the instant court on evidence that was not adduced before the district judge, then a statement had to be served explaining the circumstances.

Secondly, it was very clear from a long line of authority in the instant court that Poland, as a member state of the Council of Europe, was presumed to be able and willing to fulfil its obligations under the Convention, in the absence of clear, cogent and compelling evidence to the contrary. In such a case it would have to be shown that there was a real risk of the requested person being subjected to torture or to inhuman or degrading treatment. Thirdly, the presumption was of greater importance in the case of member states of the European Union in relation to a European Union Instrument. Fourthly, the type of evidence necessary to rebut the presumption and establish a breach had been made clear by the European Court of Human Rights. Something approaching an international consensus was required if the presumption was to be rebutted (see [3]-[7] of the judgment).

The evidence did not self evidently begin to establish the type of evidence that would be required to rebut the presumption and to find a breach of article 3 of the Convention. Regarding difficulties in the categorisation of prisoners, the evidence stated that that in 2011 there had been 21 cases where inmates had been in temporary cells for more than 14 days. That delay had mainly been due to delays in obtaining x-rays. Since March 2011, electronic devices had been in use to monitor prisoners whose health or life was at serious risk.

Although rehabilitation programmes were desirable, the lack of such programmes could not amount to a breach of article 3 of the Convention. In any event, the response from the ministry set out the steps that had been taken to improve cultural and educational activities for the detainees. The previously identified levels of overcrowding had, on the evidence, been remedied.

Prison places had increased and, between December 2010 and January 2012, only on one day had capacity been exceeded. As at July 2012, the prison population had been at 97.5% of capacity. Further, electronic surveillance had been introduced to allow sentences to be served outside prison. The goal of the Polish prison service was to guarantee three metres squared of space in a residential cell. That was a statutory right. There had been an end to the authorities' acquiescence in the reduction of space below that level.

Although four metres squared had been recommended by Council of Europe Committee on the Prevention of Torture and Inhuman or Degrading Treatment of Punishment, that provision was not a requirement. The letters from the ministry set out detailed information as to the provision of health care in prisons; which was stated to be at a level equivalent to that provided to other citizens. None of the appellants in the instant proceedings had any identifiable health issue. Any lack of independent monitoring of prisons would not amount to a breach of article 3 of the Convention. However, the detailed reports provided and the way in which the ministry had responded showed that there was no lack of independent scrutiny (see [19]-[22] of the judgment).

R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home Department [2004] 3 All ER 785 applied; Orchowski v Russia (App No 17885/04) [2009] ECHR 17885/04 applied; Szombathely City Court v Fenyvesi [2009] 4 All ER 324 applied; Targosinski v Judicial Authority of Poland [2011] All ER (D) 33 (Feb) applied; Agius v Court of Magistrates, Malta [2011] All ER (D) 186 (Mar) applied; Tworkowski v Judicial Authority of Poland [2011] All ER (D) 183 (May) applied; NS v Secretary of State for the Home Department: C-411/10 [2012] All ER (D) 12 (Jul) applied; Sietens v Cesis District Court, Latvia [2010] All ER (D) 180 (Dec) considered; Sawko v Circuit Court in Gorzow Wielkopolski, Poland [2011] All ER (D) 179 (Jan) considered; Mazurkiewicz v Rzeszow Circuit Court, Poland [2011] All ER (D) 236 (Mar) considered; Gorczynski v District Court in Torun, Poland [2011] All ER (D) 38 (Apr) considered; Golab v Regional Court in Elblag, Poland [2011] All ER (D) 257 (May) considered; Susz v Government of Poland [2011] All ER (D) 173 (Jun) considered; Sypniewska v Judicial Authority of Poland [2012] All ER (D) 07 (Mar) considered; Holman v Regional Court in Warsaw Poland [2012] All ER (D) 123 (May) considered; Lacki v Regional Court in Gdansk, Poland [2012] All ER (D) 122 (Jun) considered; Stopyra v District Court of Lublin, Poland [2012] All ER (D) 104 (Jul) considered.

Mark Smith (instructed under the Direct Access Scheme) for the appellants; Hannah Pye and Katherine Tyler (instructed by the Crown Prosecution Service) for the judicial authorities

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