Adam Kropiwnicky V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Eassie,Lady Paton |
| Judgment Date | 04 May 2010 |
| Neutral Citation | [2010] HCJAC 41 |
| Docket Number | XC9/10 |
| Court | High Court of Justiciary |
| Date | 04 May 2010 |
| Published date | 04 May 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Eassie Lady Paton | [2010] HCJAC 41 Appeal No: XC9/10 & XC10/10 OPINION OF THE LORD JUSTICE CLERK in APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 by ADAM KROPIWNICKI Appellant; against THE LORD ADVOCATE Respondent: _______ |
For the appellant: Carmichael QC; Wilson McLeod
For the Lord Advocate: Creally, M McKay; Crown Agent
4 May 2010
Introduction
[1] This is an appeal against the decision of Sheriff Crowe dated 16 December 2009 to order the appellant's extradition to Poland in terms of section 21(3) of the Extradition Act 2003 (the 2003 Act).
Background
[2] The appellant was arrested in Scotland on 17 November 2009 on two Part 1 Warrants issued by the Regional Court in Bialystok, Poland. For the purposes of the 2003 Act Poland is a Category 1 country (cf La Torre v Lord Adv, 2008 JC 23). The first warrant was issued on 14 March 2008. It requested the surrender of the appellant to serve sentences of imprisonment of five months and two years respectively for theft and assault and robbery. The second warrant was issued on 22 September 2009. It requested his surrender to serve a sentence of imprisonment of two years for assault and robbery.
The devolution issue
[3] The appellant lodged a devolution minute in which he opposed extradition on the ground that to return him to Poland would violate his rights under article 3 of the Convention because of systemic overcrowding and associated poor conditions in Polish prisons amounting to inhuman or degrading treatment or punishment.
Orchowski v Poland (Application no 17885/04), 22 October 2009
[4] The appellant relies on the decision of the European Court of Human Rights in Orchowski v Poland (supra). The applicant in that case was sentenced to imprisonment in Poland in 2003. Thereafter he was detained in eight prisons. He complained that the conditions in all but one of them amounted to inhuman and degrading treatment. He alleged that he had been held in overcrowded conditions; that he had been allowed little time out of his cell; that the sanitary facilities had been inadequate, and that all of this had affected his physical health and caused him humiliation and suffering. He submitted that the problem of overcrowding in Polish prisons was widespread and persistent and that Poland's constitutional court had recognised the systemic nature of the problem in proceedings taken by another prisoner in 2006.
[5] The Polish government acknowledged that there had been a systemic problem since 2000, but notified the Court that since 2006 a series of robust measures had been undertaken which had caused a sharp fall in the rates of overcrowding in all detention facilities. These measures had included a scheme to allow short term prisoners to serve their sentences outwith the prison system, and an increase in the number of prison places.
[6] The Strasbourg Court found unanimously that the applicant's rights under article 3 had been violated. These were its key findings.
"134. It has been established that the applicant in the instant case for the most part of his detention had been afforded below 3 and at times, even below 2 m² of personal space inside his cells.
In addition, as the applicant's personal space was particularly limited for almost the entire day and night, he had to have his meals inside his overcrowded cell and to shower along with the group of strangers, sometimes as many as twenty-four, and finally, as he had constantly been moved between cells and facilities, the Court considers that those conditions obviously did not allow any elementary privacy and aggravated the applicant's situation (see Kalashnikov v. Russia, no. 47095/99, § 99, ECHR 2002-VI).
135. Having regard to the circumstances of the case and their cumulative effect on the applicant, the Court considers that the distress and hardship endured by the applicant exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3. Therefore, there has been a violation of Article 3 of the Convention on account of the conditions in which the applicant has been detained since 2003."
The Court observed that 160 similar applications from Polish prisoners were currently pending before it (para 147). It concluded that for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres revealed a structural problem consisting of a practice that was incompatible with the Convention. It appeared that conditions had improved. This was its conclusion:
"152. On the other hand, the Court takes note of the fact that the respondent State has recently taken certain general steps to remedy the structural problems related to overcrowding and the resulting, inadequate conditions of detention (see paragraphs 89-91 above). By virtue of Article 46 of the Convention, it will be for the Committee of Ministers to evaluate the general measures adopted by Poland and their implementation as far as the supervision of the Court's judgment is concerned. However, the Court cannot but welcome these developments and considers that they may ultimately contribute to reducing the number of persons detained in Polish prisons and remand centres, as well as to the improvement of the overall living and sanitary conditions in these facilities. They cannot, however, operate with retroactive effect so as to remedy past violations. However, as already noted by the Constitutional Court (see paragraph 85 above), in view of the extent of the systemic problem at issue,...
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