Krolik and Others v Several Judicial Authorities of Poland
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 17 August 2012 |
| Neutral Citation | [2012] EWHC 2357 (Admin) |
| Docket Number | Case Nos: CO/2864/2012, CO/2915/2012, CO/2868/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 August 2012 |
[2012] EWHC 2357 (Admin)
President of the Queen's Bench Division
and
Mr Justice Globe
Case Nos: CO/2864/2012, CO/2915/2012, CO/2868/2012
CO/2918/2012, CO/2861/2012, CO/2747/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mark Smith (instructed on a Direct Access basis) for the Appellants
Miss Hannah Pye and Miss Katherine Tyler (instructed by Crown Prosecution Service) for the Respondents
Hearing date: 24 July 2012
This is the judgment of the court.
These six extradition appeals have been listed together as in each case the sole issue is the same, namely whether to extradite the appellants under either accusation or conviction European Arrest Warrants would be a breach of Article 3 of the Convention by reason of prison conditions in Poland. In four of the appeals this issue was raised before the District Judge; in two of them it was not. It is not necessary to set out the facts relating to each appellant.
The purpose of hearing the six appeals together was to enable the court (1) to consider whether, in the light of the very large number of cases to which we refer at paragraph 8 below, the evidence adduced before this court raises any issue which has not already been considered; (2) to consider whether it is the type of evidence that is anywhere near sufficient to establish a case under Article 3; and (3) to set out the way in which this court will deal with any further appeals raising the issue relating to Polish prison conditions in the future.
The legal principles
The law is clear. First, the circumstances in which this court as appellate court can be provided under s.29(4) of the Extradition Act 2003 with evidence which was not adduced before the District Judge is set out in the judgment of this court in Szombathely City Court v Fenyvesi [2009] EWHC 231. If there is an intention to rely before this court, which is an appellate court, on evidence that was not adduced before the District Judge, then a statement must be served explaining the circumstances.
Second, it is very clear from a long line of authority in this court that Poland, as a Member State of the Council of Europe, is 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. It is not necessary for this court to restate the position. It is well summarised in Targonsinski v Judicial Authority for Poland [2011] EWHC 312 (Admin) and Agius v Court of Magistrates Malta [2011] EWHC 759 (Admin) at paragraphs 12 to 20. In such a case it would have to be shown that there is a real risk of the requested person being subjected to torture or to inhuman or degrading treatment: see R(Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraph 24.
Third, the presumption is of greater importance in the case of Member States of the European Union in relation to a European Union Instrument. In N.S. v Secretary of State for the Home Department ( C-411/10 and 493/10, 21 December 2011), the Luxembourg Court in a decision in relation to the removal of an asylum seeker to Greece, held there was a strong but rebuttable presumption that a Member State would abide by the Convention, as the common European asylum system was based on the assumption that states would abide by the Convention and that other states could have confidence in that regard. The court said at paragraph 83:
"At issue here is the raison d'être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights."
The court drew a distinction between minor infringements and systemic flaws which might result in inhuman or degrading treatment.
Fourth, the type of evidence necessary to rebut the presumption and establish a breach was made clear by the Luxembourg court—a significant volume of reports from the Council of Europe, the UNHCR and NGOs about the conditions for asylum seekers (see paragraph 91 of the decision in N.S.). The Luxembourg court also had the decision of the Strasbourg Court in M.S.S v Belgium and Greece (21 January 2011) as evidence before it.
The reasoning of the decision in N.S. is plainly applicable to the Framework Decision which forms the basis of Part I of the Extradition Act 2003. It reinforces the decisions of this court in Targonsinski and Agius. It also confirms the observations of Mitting J in Tworskowski v Judicial Authority of Poland [2011] EWHC 1502 at paragraph 15 as to the type of evidence required, namely that something approaching an international consensus is required, if the presumption is to be rebutted.
The volume of cases seeking to raise Polish Prison Conditions
Despite this clear position, this court has been inundated with appeals where extradition has been challenged on the basis of the conditions in Polish prisons. Since the decision of the Divisional Court in Pisarek v the Regional Court in Elblag 11 [2010] EWHC 877 (Admin) decided on 23 March 2010 where this court considered Polish prison conditions in the light of the decision of the Strasbourg court in Orchowski v Poland (17885/04, 22 October 2009), there have been at least the following cases in each of which the challenge has failed:
Lewczuk v Poland [2010] EWHC 2960 (Admin)
Sietens v Latvia [2010] EWHC 3438 (Admin)
Sawko v Poland [2011] EWHC 68 (Admin)
Targosinksi v Poland [2011] EWHC 312 (Admin)
Gorczynski v Poland [2011] EWHC 512 (Admin)
Mazurkiewicz v Poland [2011] EWHC 659 (Admin)
Golab v Poland QBD (Administrative Court) 26 May 2011 (Unreported)
Susz v Poland [2011] EWHC 1862 (Admin); Official Transcript
Sypniewska v Poland [2012] EWHC 899(Admin)
Krzyzak v Poland [2012] EWHC 810 (Admin)
R(Stopyra) v Poland [2012] EWHC 903 (Admin)
Monaterski v Poland [2012] EWHC 1311 (Admin)
Holman v Poland [2012] EWHC 1503 (Admin)
Lacki v Poland [2012] EWHC 1747 (Admin)
Hartung v Poland [2012] EWHC 1884 (Admin)
In addition to those cases there have been decisions in Scotland.
Poland v Machon Sheriff Court (Lothian and Borders) Edinburgh, 09 July 2010 2010 G.W.D. 29–603
Kropiwnicki (Adam) v Lord Advocate [2010] HCJAC 41; 2010 J.C 229; 2010 S.C.L. 1049; 2010 S.C.C.R. 583 2010 G.W.D. 17–338
As the law is clear, it cannot be and is not in the interests of justice and the proper conduct of the business of this court, that appeals raising the issue of Polish prison conditions in relation to Article 3 are dealt with in the ordinary way.
For the future therefore:
i) Any appeal raising the issue must (1) clearly identify any new factual issues not considered in this appeal or earlier cases which are said to give rise to a breach of Article 3 by reason of the conditions in Polish prisons, (2) set out a summary of the evidence relied on in support and (3) explain how it meets the criteria for evidence of the type to which we have referred at paragraphs 6 and 7.
ii) Any such appeal will be listed within days of it being lodged at the court. If there are no new factual issues and the evidence is not of the type identified, the court will consider whether it should be heard then and there and, if appropriate, dismissed.
iii) As it is highly unlikely that new factual issues will arise or that the type of evidence required will be provided, it is anticipated that there will be few, if any, further appeals which raise the issue.
iv) District Judges should require a requested person or the advocate representing the requested person who seeks to raise an Article 3 issue relying on Polish prison conditions to identify any new factual issues not considered in this appeal or earlier cases and whether the evidence in support is of the type to which we have referred. If the requested person or his advocate fails to do so, then the District Judge should ordinarily be entitled to deal with the claim briefly by relying on the decisions of this court.
The evidence before the District Judge
The extradition hearing in the cases of Artur Krolik, Sylwester Kazmierczak, Piotr Zwolinski, Tomasz Lachowski took place before District Judge Purdy. The only issue raised was a breach of Article 3 by reason of the conditions in Polish prisons. The evidence relied on was principally in the form of a letter of 8 June 2011 from the Deputy Human Rights Ombudsman to the Director of the Polish Prison Service and a reply dated 5 July 2011. These were documents that were subsequently considered by Keith J on 14 March 2012 in Krzyzak v Regional Court of Tarnow [2012] EWHC 810 and by this court on 3 July 2012 in Hartung v The Circuit Court of Szczecin [2012] EWHC 1884. In a written judgment on 12 March 2012 District Judge Purdy held that on the evidence before him nothing had changed since the decisions of this court in 2011. The contention therefore failed.
In the cases of Tomasz Soltan and Daniel Walachowski, no such issue was raised; the hearings were uncontested; the issue was raised only on the appeal.
The evidence adduced on the appeal in this case
On behalf of the appellants, a report had been prepared by Ms Maria Ejchart and Dr Piotr Kladoczny dated July 2012 with two short additional reports. The authors of the reports monitor the situation...
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