Marceli Krzyzak and Another v Regional Court of Tarnow, Poland and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE KEITH |
| Judgment Date | 14 March 2012 |
| Neutral Citation | [2012] EWHC 810 (Admin) |
| Docket Number | CO/1644/2012,CO/6671/2011 |
| Date | 14 March 2012 |
| Court | Queen's Bench Division (Administrative Court) |
[2012] EWHC 810 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Keith
CO/1644/2012
CO/1661/2012
Mr M Smith (instructed on direct access) appeared on behalf of the Appellants
Mr M Grandison (instructed by the Crown Prosecution Service) appeared on behalf of the 1st Respondent
Miss H Hinton (instructed by the Crown Prosecution Service) appeared on behalf of the 2nd Respondent
(As Approved)
These two appeals against orders for extradition were listed separately for hearing today, but since they raise the same issue, and since both appellants are represented by the same counsel, they have been heard together.
On 9 February, the appellants, Marceli Krzyzak and Dawid Fugas, were arrested pursuant to European arrest warrants issued by the Regional Court of Tarnow and the Circuit Court of Katowice, Poland, on 30 November 2010 and 10 October 2011 respectively. The warrants had been certified by the Serious Organised Crime Agency on 20 February 2011 and 2 December 2011. Mr Krzyzak's extradition was sought so that he could serve the remaining term of sentences totalling 5 years and 4 months' imprisonment for offences of fraud and theft. Mr Fugas's extradition was sought so that he could serve two sentences of imprisonment: one for 2 years and 10 months, being the remaining term in respect of a sentence of 3 years' imprisonment for an offence of robbery with violence, and the other for a term of 1 year's imprisonment for an offence of battery. They appeared at the City of Westminster Magistrates' Court on the day following their arrest. They were each represented by a duty solicitor. No issues relating to their extradition were raised by their solicitors. District Judge Evans ordered Mr Krzyzak's extradition to Poland, and District Judge Zani ordered Mr Fugas's extradition to Poland. They now appeal against those orders, Ouseley J having ordered that the appeals could be heard by a single judge.
Poland has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Part 1 of the Act therefore applies to these proceedings. Section 21(1) of the Act (which is in Part 1) requires the court to decide whether someone's extradition to a category 1 territory would be incompatible with their rights under the European Convention on Human Rights. The skeleton arguments prepared by the appellants' counsel, Mr Mark Smith, in support of these appeals are in identical terms and they rely on a single ground of appeal, namely that the extradition of Mr Krzyzak and Mr Fugas to Poland would be incompatible with their rights under Article 3 of the Convention not to be subjected to inhuman or degrading treatment or punishment in the light of prison conditions in Poland.
That is not, at first blush, a particularly promising line of attack. To resist your extradition on the basis that your rights under Article 3 would be infringed on your return, you have to show that there are strong grounds for believing that you face a real risk of being subjected to inhuman or degrading treatment or punishment: see, for example, R v Special Adjudicator ex parte Ullah [2004] UKHL 26 at [24]. Indeed, the court starts from the assumption that states which are signatories to the Convention will comply with their obligations under it, and that they will therefore protect those who are extradited to that state from treatment or punishment which can properly be characterised as inhuman or degrading: see, for example, R(Targosinski) v Judicial Authority of Poland [2011] EWHC 312 (Admin) at [5].
That overcrowding in Polish prisons and remand centres has in the past revealed a structural problem which was incompatible with the Convention is undeniable. That much was found by the European Court of Human Rights in Orchowski v Poland (Application no 17885/04). But things have moved on since then. The Administrative Court in Pisarek v Regional Court in Elblag II [2010] EWHC 877 (Admin) noted that by the time judgment was handed down in Orchowski, the Polish Constitutional Court had ruled that conditions in Polish prisons exposed detainees to the risk of inhuman treatment, and had required measures to be taken to stop that. Indeed, by the end of 2009 measures had begun to be taken to address the problem, and the total prison population in Poland was then below the total capacity level, instead of exceeding it as it had historically done for a long time. The court concluded that it had not been established that the appellant's extradition to Poland then would place him at risk of ill-treatment of the kind prohibited by Article 3.
Pisarek has been considered in a number of cases since then, but there is an observation by Mitting J in the case of Tworkowski v Judicial Authority of Poland [2011] EWHC 1502 (Admin) at [15] which I have regarded as helpful:
"… the circumstances in which an applicant can satisfy a District Judge that, if extradited, his Article [3] rights would be breached in the requesting state—if that state is a category I Convention state—are likely to be very few and far between and certainly require a good deal more than … the routine deployment of the decision of the Strasbourg Court in relation to Poland in Orchowski, or, the reports of individual experts analysing and criticising the prison conditions in the requesting state. Something approaching the sort of international consensus established in MSS is likely to be required."
The reference to MSS is a reference to MSS v Belgium and Greece (Application no 30696/09). In that case there were what Mitting J described at [14] as "numerous reports and materials" from reputable international organisations, including the UNHCR and the European Commission for Human Rights, from non-governmental organisations such as Amnesty International and Human Rights Watch, as well as from the Greek National Commission for Human Rights, all of which were published at regular intervals addressing this issue.
These two appeals are based on four...
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