CO/2918/2012, CO/2861/2012, CO/2747/2012
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GLOBE
| Artur Krolik
|- and -
|Several Judicial Authorities of Poland
Miss Hannah Pye and Miss Katherine Tyler (instructed by Crown Prosecution Service) for the Respondents
Hearing date: 24 July 2012
Crown Copyright ©
President of the Queen's Bench Division :
This is the judgment of the court.
The legal principles
"At issue here is the raison d'ętre of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights."
The court drew a distinction between minor infringements and systemic flaws which might result in inhuman or degrading treatment.
The volume of cases seeking to raise Polish Prison Conditions
Lewczuk v Poland  EWHC 2960 (Admin)
Sietens v Latvia  EWHC 3438 (Admin)
Sawko v Poland  EWHC 68 (Admin)
Targosinksi v Poland  EWHC 312 (Admin)
Gorczynski v Poland  EWHC 512 (Admin)
Mazurkiewicz v Poland  EWHC 659 (Admin)
Golab v Poland QBD (Administrative Court) 26 May 2011 (Unreported)
Susz v Poland  EWHC 1862 (Admin); Official Transcript
Sypniewska v Poland  EWHC 899(Admin)
Krzyzak v Poland  EWHC 810 (Admin)
R(Stopyra) v Poland  EWHC 903 (Admin)
Monaterski v Poland  EWHC 1311 (Admin)
Holman v Poland  EWHC 1503 (Admin)
Lacki v Poland  EWHC 1747 (Admin)
Hartung v Poland  EWHC 1884 (Admin)
In addition to those cases there have been decisions in Scotland.
Poland v Machon Sheriff Court (Lothian and Borders) Edinburgh, 09 July 2010 2010 G.W.D. 29-603
Kropiwnicki (Adam) v Lord Advocate  HCJAC 41; 2010 JC 229; 2010 SCL 1049; 2010 SCCR 583 2010 G.W.D. 17-338
i) Any appeal raising the issue must (1) clearly identify any new factual issues not considered in this appeal or earlier cases which are said to give rise to a breach of Article 3 by reason of the conditions in Polish prisons, (2) set out a summary of the evidence relied on in support and (3) explain how it meets the criteria for evidence of the type to which we have referred at paragraphs 6 and 7.
ii) Any such appeal will be listed within days of it being lodged at the court. If there are no new factual issues and the evidence is not of the type identified, the court will consider whether it should be heard then and there and, if appropriate, dismissed.
iii) As it is highly unlikely that new factual issues will arise or that the type of evidence required will be provided, it is anticipated that there will be few, if any, further appeals which raise the issue.
iv) District Judges should require a requested person or the advocate representing the requested person who seeks to raise an Article 3 issue relying on Polish prison conditions to identify any new factual issues not considered in this appeal or earlier cases and whether the evidence in support is of the type to which we have referred. If the requested person or his advocate fails to do so, then the District Judge should ordinarily be entitled to deal with the claim briefly by relying on the decisions of this court.
The evidence before the District Judge
The evidence adduced on the appeal in this case
i) Difficulties in categorising prisoners: According to Polish law a new inmate should be housed in temporary cells pending classification for the purpose of sending a prisoner to an appropriate institution. The system of classification does not work properly or in a timely manner. There were difficulties in ensuring prisoners were placed in appropriate cells, their personal safety ensured and they were in an environment conducive to their individual development.
ii) Lack of rehabilitation: Due to overcrowding in the prisons and an insufficient number of prison officers, it was not possible to develop programmes for the rehabilitation of offenders and to implement those programmes.
iii) Overcrowding: The Strasbourg court had found in Orchowski that overcrowding in Polish prisons constituted a systemic problem. There had been no material change or improvement. Prisons were as at 29 June 2012 at 98.4% of capacity. As a result there were difficulties in controlling prisoners, there were insufficient prison officers, insufficient protection for vulnerable prisoners and an insignificant number of activities for prisoners.
iv) Cell space: International organisations, particularly the Council of Europe Committee on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), had said that each prisoner should be provided with 4m2 of prison cell area. That has not been met.
v) Poor health care facilities: The number of medical officers employed in the prison service had significantly decreased and the provision of health care was inadequate.
vi) Lack of independent monitoring: Poland was a party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and the Optional Protocol. The Optional Protocol required Poland to establish an independent authority to monitor prisons. Although the Human Rights Defender had been appointed to act as a monitor from January 2008, there was no additional budget for that. The mechanisms provided were therefore ineffective and illusory.
"To sum up, it should be stated that in the Republic of Poland, custodial sentences at penitentiary units and remand in custody are carried out in a humane manner that respects the human dignity of inmates and preserves their civil rights and freedoms. Health care at a level equivalent to that provided to other citizens is also provided to persons who are deprived of their liberty. Control over the Polish penal system, which is exercised both within the Prison Service itself and by external institutions, including independent penitentiary judges, also provides an adequate guarantee that inmates are treated humanely. It should also be emphasised that deviations from the principles presented above, which do occur in practice, are of an extraordinary character and result in appropriate responses by competent state institution. However, in no case do they provide grounds for generalisations concerning systemic breaches or violations of the rights of persons who are inmates of Polish penitentiary units."
i) Categorisation: The letter of 5 July 2011 which was before District Judge Purdy made clear that there might be occasional cases where there were delays, but each was caused by a temporary problem. The letter of 19 April 2012 stated that in 2011 there were 21 cases where inmates had been in temporary cells for more than 14 days. This had mainly been due to delays in x-raying. Since March 2011, according to the letter from the Ministry dated 19 July 2012, electronic devices, including CCTV, had been in use to monitor prisoners whose health or life was at serious risk.
ii) Lack of rehabilitation: Though rehabilitation programmes were desirable, the lack of rehabilitation programmes could not amount to a breach of Article 3. In any event the letter of 19 April 2012 from the Ministry set out steps that were being taken to improve cultural and educational activities for the detainees.
iii) Overcrowding: In all reports and letters the figure for the number of prisoners in 2011 and 2012 was generally between 98.9% and 95.85% of prison capacity; the level of overcrowding identified in Orchowski had been remedied. Between December 2010 and January 2012 the number of prison places had been increased by 1,295. The letter of 19 April 2012 accepted that on one day in April 2012, the capacity had been temporarily exceeded, reaching 100.03%. At 13 July 2012, according to the letter from the Ministry of Justice dated 19 July 2012, the prison population was 97.5% of capacity. The letter of 19 July 2012 also stated that to reduce overcrowding the Ministry had introduced from 1 September 2009 a system of electronic surveillance to allow sentences to be served outside prison.
iv) Cell space: The letter of 5 July 2011 made clear that the goal of the prison service was to guarantee each prisoner 3m2 of space in a residential cell. That was the statutory right under Polish law, as considered in the decision in Orchowski. As was made clear in Orchowski, it was the overcrowding by reason of the acquiescence of the Polish authorities in the reduction below 3m2 that in the specific cases had contributed to the breach of Article 3. An end had been put to that acquiescence in 2007 and 2008. It was clear from the information provided that the position had radically changed and 3m2 is guaranteed. Prisoners have not less than that. To ensure that this space was provided prisoners were sometimes housed in other accommodation which complied with the requirements for residential cells. The material figure is 3m2 as laid down by the Polish Constitutional Court in its judgment of 26 May 2008. 4m2 is recommended by the CPT but not a requirement. In its analysis of Orchowski, this court made clear in Pisarek that issues had been addressed in Poland and that case was specific to conditions in earlier years.
v) Health care facilities: None of the appellants has any identifiable health issue. Nonetheless the letters of 19 April and 19 July 2012 set out detailed information as to the provision of health care in prisons.
vi) Independent monitoring: Any lack of independent monitoring would not amount to a breach of Article 3. However the detailed reports from the Ombudswoman and the way in which the Ministry has responded as is evident from the letters before the court showed that there is no lack of independent scrutiny.