Poland V. Adam Kropiwnicki
| Jurisdiction | Scotland |
| Judge | Sheriff F.R. Crowe |
| Court | Sheriff Court |
| Date | 16 December 2009 |
| Published date | 12 January 2010 |
Court references 2B1367 and 2B1368/09
IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH
UNDER THE EXTRADITION ACT 2003
POLAND v ADAM KROPIWNICKI Prisoner in HM Prison Saughton, Edinburgh
Act Mr. D Dickson Crown Office International Unit
Alt Mr. Govier Advocate instructed by Mr. Templeton of Messrs. Wilson McLeod Solicitors, Edinburgh
Edinburgh 16th December 2009
The Sheriff having resumed consideration of the requests made under the provisions of the Extradition Act 2003 by the Republic of Poland for the extradition of Adam Kropiwnicki, Prisoner in HM Prison Saughton, Edinburgh answers in the AFFIRMATIVE the question in section 21(1) of said Act and orders in terms of section 21(3) of the said Act, that the said Adam Kropiwnicki be extradited to Poland conform to the warrants of even date.
NOTE
Introduction
[1] This case involves two European Arrest Warrants which were issued by the Polish authorities in respect of the accused. The first EAW was issued on 14 March 2008 and involved charges of theft and assault and robbery, the other was issued on 22 September 2009 for an assault and robbery. Extradition was opposed on the basis that overcrowding was systemic in Polish prisons and if returned to Poland to serve the sentences of imprisonment which had been imposed the accused's Art 3 rights would be violated
Procedural History
[2] The cases first called at Edinburgh Sheriff Court on 18 November 2009. A Preliminary Hearing was fixed for 26 November and the full Extradition Hearing for 2 December 2009 and bail was refused. A Devolution Minute was lodged on 26 November but no appearance has been entered by the Advocate General. The Extradition Hearing commenced on 2 December and was continued until 9 December due to lack of court time and to enable defence counsel to ascertain whether the accused would give evidence. In the event no evidence was led from witnesses and parties completed their submissions. I closed the hearing and continued the case until today to consider the circumstances presented to me in argument and the various authorities submitted.
[3] When this case called before me on 2 December 2009 the issue seemed to focus on whether the accused's Human Rights would be violated if extradited to Poland. Mr. Govier earlier raised the prospect of a challenge in relation to the passage of time in terms of section of the Extradition Act 2003 but in the event this was not raised in terms.
[4]After hearing parties I refused a motion to adjourn the case to a later date. Mr. Govier had taken over the case from another counsel on 30 November. Mr. Govier accepted that he had dealt with the case of Koziel v Poland recently before Sheriff Maciver in a similar timescale and concerning the same area of challenge.
Procedure at the Extradition Hearing
[5] On behalf of the Lord Advocate Mr. Dickson pointed out that the accused had at the initial calling of the cases on 18 November accepted that he was the person referred to in the warrants and the procedures set out in section 8 had been complied with. Accordingly I was able to answer the question posed at section 7(2) of the 2003 Act in the affirmative and proceed to section 10.
[6] The warrants were dated 14 March 2008 and 22 September 2009 and both had been issued by the Regional Court in Bialystok in Poland. The accused had been sentenced to a term of imprisonment in excess of four months on each charge, namely five months' and two years' imprisonment on the first EAW and 2 years' imprisonment in respect on the second one. The charges in the earlier warrant were theft and assault and robbery-both of which were offences in Scotland. In the second warrant the offence was assault and robbery. Accordingly it was submitted that section 65(3) of the 2003 Act applied. There was agreement that all of the offences in the warrants were extradition offences and so the court moved on to consider whether there were any bars to extradition under section 11 of the 2003 Act.
[7] It was accepted on behalf of the accused that there were no bars to extradition and accordingly I moved on to consider section 20 of the 2003 Act. It was accepted that the accused had been present at both trials. He had been sentenced but apparently failed to appear at a later date to serve the sentences. Accordingly I moved on to consider section 21 of the 2003 Act and whether extradition would be compatible with the accused's Convention Rights.
The Issue-whether extradition would be compatible with the accused's Convention Rights
[8] I was referred by Mr. Dickson to Rozaitiene v The Republic of Lithuania [2009] NIQB 3, Higgins LJ at paragraph [29] where the court noted the approach taken in Saadi v Italy (2008) 49 EHRR 30, a decision of the Grand Chamber of the European Court of Justice and quoted paragraph 132 of that decision:-
"In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the court considers that the protection of art 3 of the convention enters into play when the applicant establishes... that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned."
[9] It was submitted standing the terms of Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), at paragraph 11 (infra) and Baksys v Ministry of Justice of the Republic of Lithuania [2007] EWHC 2838 (Admin) at paragraph 11 that in terms of the Extradition Act 2003 in was a matter for the accused to produce evidence in support of such a contention. It was not part of the 2003 Act process for the requested state "to request evidence relating to an issue raised by the other side. Of course there may come a time when it has to produce such evidence if it wishes to resist the implications of evidence advanced and proffered by an appellant or one who seeks to resist the effect of the warrant. But unless and until such evidence is produced, no such obligation arises.
[10] Reference was again made to Rozaitiene (supra) at paragraph [32] which states:-
"Where he alleges under section 21 that his extradition would not be compatible with his Convention rights within the meaning of the Human Rights Act 1998, the onus is on him to show substantial grounds for believing that his rights under Article 3 or 6 would be violated."
[11] At paragraph [6] of the Rozaitiene case reference was made to Office of the King's Prosecutor, Brussels v Cando Armas and Another [2005] UKHL 67 and in particular paragraph 53:-
"Accordingly, the grounds on which a member state can decline to execute a European arrest warrant issued by another member state are very limited. Article 3 sets out grounds on which execution must be refused. Article 4 sets out grounds on which execution may be refused. None of these grounds enable the merits of the proposed prosecution or the soundness of the conviction or the effect of the sentence to be challenged. There is one qualification that should, perhaps be mentioned. The execution of an arrest warrant can be refused if, broadly speaking, there is reason to believe that its execution could lead to breaches of the human rights of the person whose extradition is sought:"
[12] Mr. Dickson asserted that the only evidence produced was the case of Orchowski v Poland ECtHR 22 October 2009. That seemed insufficient standing what was said in Cando Armas (supra) at paragraph 132. Accordingly there needed to be substantial evidence that the accused faced a real risk of a human rights violation if extradited. In Miklis (supra) there were reports from experts which described prison conditions as "life threatening"- see paragraph 13, fourth bullet point.
Submissions on behalf of the accused
[13] Mr. Govier's argument was that the accused's Article 3 ECHR rights would be infringed if he was sent back to Poland to serve the sentences which had been imposed upon him. He said that the overcrowding in Polish prisons was systemic and sending Mr. Kropiwnicki back to serve the sentences would result in him being subjected to inhuman or degrading treatment or punishment.
[14] I was referred to R (Ullah) v Special Adjudicator [2004] 2 AC 323 an immigration and asylum case, Lord Bingham at page 352 paragraph 24:-
"it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment:...In Dehwari v Netherlands (2001) 29 EHRR CD 74 at 75 (para 61).. the Commission doubted whether a real risk was enough to resist removal under art 2, suggesting that the loss of life must be shown to be a "near certainty".
[15] I was then referred to Miklis v Deputy Prosecutor General of Lithuania (supra), Lord Justice Latham at paragraph 11:-
"The fact that human rights violations take place is not of itself evidence that a particular individual would be at risk of being subjected to those human rights violations in the country in question. That depends upon the extent to which the violations are systemic, their frequency and the extent to which the particular individual in question could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse. .....The material could go no further than raising a speculative, as opposed to a real risk of his being harmed in prison. And that goes nowhere near in establishing substantial grounds for believing that there would be a real risk of Article 3 ill-treatment in the sense that the authorities themselves would either be responsible for it, or be unable or unwilling to provide him protection from it."
[16] Mr. Govier referred me to the recent case of Orchowski v Poland (supra). In that case a serving Polish prisoner was found to have had his Article 3 rights violated. He had served his sentence in various institutions including Slupsk Remand Centre, Sztum Prison, Gdansk Remand Centre,...
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