Pawel Jozef Litwinczuk v Regional Court, Zamosc, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 13 October 2021 |
| Neutral Citation | [2021] EWHC 2735 (Admin) |
| Docket Number | Case No: CO/3399/2020 & CO/3852/2020 & CO/3941/2020 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2735 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/3399/2020 & CO/3852/2020 & CO/3941/2020
(1) Ben Joyes (instructed by Sonn Macmillan Walker) for the First Appellant
(2) Stefan Hyman (instructed by Taylor Rose McMillan Williams) for the Second Appellant
(3) Catherine Brown (instructed by Taylor Rose McMillan Williams) for the Third Appellant
Alexander dos Santos (instructed by CPS Extradition Unit) for the Respondents in all the appeals
Hearing date: 29 September 2021
Approved Judgment on Application for permission to amend
A. Introduction
Each of the Appellants is the subject of an extradition order which requires his surrender to a judicial authority in Poland to serve a sentence of imprisonment. By these applications each Appellant seeks permission to amend his Grounds of Appeal to include a claim that extradition to Poland would be in breach of ECHR article 3. The specific article 3 issue is overcrowding in Polish prisons. If the space available per prisoner in a multi-occupancy cell is less than 3m 2 there is a presumption that the prison conditions do not meet the minimum required for compliance with ECHR article 3: see Mursic v Croatia (2017) 65 EHRR1 at paragraphs 122 – 128 and 136 to 141. The Appellants' contention is that if they are surrendered to serve the sentences of imprisonment imposed on them, they will do so in overcrowded prisons in cells where the space per person would be less than the minimum personal space necessary for presumed compliance with article 3. None of the Appellants raised this matter at his extradition hearing. The contention was first raised by Mr Litwinczuk in Perfected Grounds of Appeal dated 17 November 2020.
Mr Litwinczuk's surrender is sought pursuant to a European Arrest Warrant issued on 30 March 2020 which was certified by the National Crime Agency on 14 May 2020. The warrant is a conviction warrant. It rests on two judgments of the Polish Court: one which became final on 17 March 2014, imposing a 7-month suspended sentence; the other which became final on 23 November 2013 imposing a 1 year suspended sentence. Both sentences were activated on 10 October 2016 after Mr Litwinczuk had failed to comply with the conditions of the suspension order. An extradition order was made against him on 16 September 2020. In addition to the proposed article 3 ground, the grounds of appeal against the extradition order included the contention that the effect of recent judicial reform in Poland was such that the relevant requesting court had ceased to be a Judicial Authority for the purposes of section 2 of the Extradition Act 2003, and a claim that extradition would be in breach of his rights under ECHR article 8. These grounds were considered on the papers by Johnson J on 21 January 2021. He refused permission to appeal on the article 8 ground and stayed consideration of the section 2 ground of appeal pending judgment of the Divisional Court in Wozniak v Regional Court in Gniezno, Poland (CO/4299/2019). So far as concerned the application for permission to amend to rely on the article 3 ground, Johnson J extended the representation order to permit an expert report to be obtained and stayed consideration of the application for permission to amend.
Mr Lukaszek has lived in the United Kingdom since 2012. He is the subject of an extradition order made on 16 October 2020. That order was made based on a European Arrest Warrant issued on 18 July 2019 and certified by the National Crime Agency on 1 October 2019. The warrant is a conviction warrant in respect of a sentence imposed on 12 September 2011 of 8 months imprisonment suspended for 4 years. The sentence was activated on 12 December 2012. Mr Lukaszek's application for permission to appeal against the extradition order was considered on the papers by Steyn J on 18 February 2021. She refused permission to appeal on an article 8 ground and stayed a section 2 argument pending judgment in Wozniak. Renewed Grounds of Appeal (dated 24 February 2021) included a proposed article 3 ground of appeal. An application to amend to add the article 3 ground of appeal was made on 12 March 2021. On 5 March 2021 Mr Lukaszek had also made an application for permission to instruct an expert to provide a report in support of the proposed article 3 ground of appeal. Murray J considered all these applications at a hearing on 18 March 2021. He made an order joining this appeal with Mr Litwinczuk's appeal and staying consideration of both the renewed application for permission to appeal on the article 8 ground and the application for permission to amend.
Mr Tadaszak's appeal is against an extradition order also made in respect of a conviction warrant. The order was made on 22 October 2020. The European Arrest Warrant had been issued on 8 July 2020 and had been certified by the National Crime Agency on 31 July 2020. The warrant rested on two convictions: the first dated 9 January had resulted in a sentence of 15 months suspended for 4 years; the second dated 3 June 2013 led to an 8-month sentence of imprisonment suspended for 3 years. The first sentence was activated on 20 March 2014, the second on 26 March 2014. Mr Tadaszak's application for permission to appeal against the extradition order was considered on the papers by Lane J on 15 February 2021. He refused permission to appeal on an article 8 ground and stayed a section 2 ground of appeal pending the judgment in Wozniak. The application for permission to appeal was renewed by notice dated 22 February 2021. On 10 March 2021 submissions filed in support of the renewed application for permission to appeal included an application for permission to amend the article 3 ground of appeal. At the same time an application was made for permission to instruct an expert to provide a report in support of the article 3 ground. By an order made on 18 March 2021, Eady J refused the renewed application for permission to appeal on the article 8 ground, and stayed the application for permission to amend, and joined Mr Tadaszak's appeal with the appeals of Mr Litwinczuk and Mr Lukaszek.
B. Decision
The factual premises for the applications for permission to amend (relied on by all the Appellants) are first, a report dated 29 August 2019 of the United Nations Committee against Torture (the Committee of Experts established under article 17 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to monitor compliance by States who are parties to the Convention, with the obligations arising under that Convention); second, an expert report dated 8 March 2021 prepared pursuant to the permission granted by Johnson J, by Maria Radziejowska, a Polish advocate specialising in criminal defence and extradition cases and human rights law; third, an addendum to that report dated 23 March 2021; and fourth, a transcript of evidence given by Mikolaj Pietrzak at an extradition hearing at Westminster Magistrates' Court on 30 June 2021 in the case of Pawel Muntian v Polish Judicial Authority. Mr Pietrzak is a Polish lawyer. He also specialises in criminal defence and extradition cases and human rights law. At the hearing in Mr Muntian's case, he was questioned based on a report dated 3 March 2021 that he had prepared jointly with Ms Radziejowska. I am told that this report is, in all material respects, identical to Ms Radziejowska's report of 8 March 2021.
I approach these applications by asking whether there is a case to answer that the surrender of any of the Appellants to serve sentences of imprisonment in Poland will expose them to a real risk of article 3 ill-treatment. I have been referred to a number of judgments of the Divisional Court and the Court of Justice of the European Union including: Aranyosi [2016] QB 921, Dorobantu [2020] 1 WLR 2485, Krolik v Polish Judicial Authority [2012] EWHC 2357 (Admin), and Visha v Criminal Court of Monza, Italy [2019] EWHC 400 (Admin). The cumulative effect of these decisions is as follows. There is a presumption that Council of Europe States and states within the European Union are willing and able to fulfil their obligation not to subject any person to article 3 ECHR ill-treatment. This presumption of compliance is strong and will prevail save where “exceptional circumstances” are demonstrated.
The nature of the presumption and the circumstances in which it may be displaced are set out in full in the judgment of the CJEU in Dorobantu: see between paragraphs 42 and 69. The presumption of compliance will be displaced if there is information that is:
“52. … objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing member state and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. That information may be...
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