Susz v Government of Poland
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CALVERT SMITH,LORD JUSTICE AIKENS |
| Judgment Date | 23 June 2011 |
| Neutral Citation | [2011] EWHC 1862 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 June 2011 |
| Docket Number | CO/3306/2011 |
[2011] EWHC 1862 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Aikens
Mr Justice Calvert Smith
CO/3306/2011
The Claimant did not attend and was not represented
MS C BRAMWELL (instructed by CPS) appeared on behalf of the Defendant
This is an appeal under section 26 of the Extradition Act 2003 from a decision of District Judge Zani to order his extradition to Poland on two warrants.
The appellant is a 34-year-old Polish national. On 5 April 2011, the district judge ordered his surrender on two European arrest warrants. The first, a conviction warrant, issued by the circuit court on 14 December 2007, alleged convictions for assault and threats to kill in October 2002, threats to kill in October 2001, attempted robbery and extortion in 2004 and possession of cannabis with intent to supply also in 2004. For these matters he was sentenced to 18 months' imprisonment suspended for the 2001 and 2002 offences and two and a half years' imprisonment for the 2004 offences. In June 2005 the suspended sentence was activated by the court to be served consecutively making a total sentence therefore of four years. The first warrant states that the appellant was in custody between June and December 2004 and that therefore a balance of three years, five months and 14 days' imprisonment remains to be served.
The second warrant is an accusation warrant issued by the regional court on 13 April 2010, relating to an allegation of theft of money said to have been committed between September and December 2005. The maximum sentence for this offence is usually three years' imprisonment, although for a repeat offender such as this, the maximum sentence rises to four and a half years.
Both warrants were certified by the Serious and Organised Crime Agency, the first on 5 May 2008 and the second on 22 September 2010, the appellant being arrested on 23 September 2010.
Poland is a Category 1 country for the purposes of Part 1 of the Extradition Act 2003 and this appeal, as I have said, is brought under the provisions of section 26.
Grounds of appeal.
The appellant's grounds drafted by solicitors indicate that he seeks to appeal the District Judge's decision on the following grounds.
1. The appellant's extradition should be barred by section 21 of the Act and it would be incompatible with his rights under Articles 3 and 8 of the European Convention on Human Rights.
2. The appellant's physical condition is such that it would be unjust or oppressive to extradite him.
Since the grounds were filed the appellant has sought the advice of counsel and following the receipt of that advice his solicitors applied successfully to be removed from the court record. The appellant has not appeared today and we are satisfied that he has been served with notice of today's hearing which is an adjourned hearing from a previous date on which he did not appear and that he is fully aware of the fact that his appeal is to be heard today. Since the District Judge's decision, no further evidence has been produced, although in a letter from his previous solicitors, it is suggested that he may be producing further evidence from a medical practitioner. In the event, none has been produced.
We have had also had the benefit of the skeleton argument drafted by his counsel who appeared at the Westminster Magistrates' Court. The respondents have been represented both before the Magistrates' Court and this court by Ms Bramwell who has prepared a very helpful skeleton argument for this appeal.
The appellant's evidence.
Before the District Judge the appellant sought to resist extradition on the same ground on which he now bases his appeal. He gave oral evidence at the hearing as did his partner and her sister.
In summary, his evidence was that before he was sentenced to the 2001 and 2002 offences he gave information to the authorities about the criminal activities of others and in return received a suspended rather than an immediate sentence of imprisonment. He said that as a result of the information he had given about 20 people from the area where he lived were arrested and imprisoned. He claimed that they had discovered what he had done and took revenge on him by forcibly injecting him whilst he was in prison, infecting him with the hepatitis B virus.
It seems that he reported his illness, but not the forcible injection, to the prison authorities. Hepatitis was diagnosed and he was treated in the prison hospital for a time before being returned to the main part of the prison. He was released from prison due to "revocation of preliminary detention" in December 2004. The allegations of theft related to the period between September 2005 and December 2005 and he left Poland shortly after that.
The appellant said that he, his partner, and her sister were subjected to threats while they were still in Poland and had continued to receive threats sporadically since they came to this country. He feared that, were he to be returned to prison in Poland, he would suffer further ill-treatment and his life would be in danger. He claimed that he had been threatened with being infected with the HIV virus.
Section 21 of the Act.
This section of the Act provides that a judge who is required by section 11 or 20 of the Act to proceed under section 21 must decide whether the person's extradition would be compatible with his convention rights. Section 20 applied in this case and the District Judge was therefore required to address the issue of compatibility with convention rights.
Article 3 of the Convention.
The appellant claimed first that extradition would be contrary to his rights under Article 3 of the Convention which provides that:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
The test for Article 3 cases is set out in R (Ullah) v Special Adjudicator [2004] 2 AC 352. The question to be answered is whether there are strong grounds for believing that a person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment. "Torture" encompasses deliberate inhuman treatment resulting in severe and cruel suffering whether physical or mental: Ireland v United Kingdom [1996] 23 EHRR 413. "Mistreatment" falling short of torture must reach a minimum of severity to breach Article 3: Tyrer v United Kingdom [1978] 2 EHRR 25. It is not, I think, disputed by the respondents that an assault perpetrated with the intention of, and having the effect of, infecting a person with the hepatitis B and/or HIV virus would be capable of constituting Article 3 treatment.
Usually a breach of Article 3 rights occurs as a result of conduct on behalf of a state through one or more of its agents. In certain circumstances, however, ill-treatment at the hands of a person who is not an agent of the state can give rise to such a breach. In such a case, it must be shown that the risk of a breach is real and the authorities of the receiving state are not able to obviate that risk by providing appropriate protection. HLR V France [1997] 26 EHR 29. In R v Secretary of State for the Home Department ex-parte Bagdanavicius (FC) and another [2005] UKHL 38, the House of Lords made the position clear:
"Non-state agents do not subject people to torture or the other prescribed forms of ill-treatment, however violently they treat them: what, however would transform such a violent treatment into Article 3 ill-treatment would be the state's failure to provide...
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