Neutral Citation Number: [2012] EWHC 2357 (Admin)

Case Nos: CO/2864/2012, CO/2915/2012, CO/2868/2012
CO/2918/2012, CO/2861/2012, CO/2747/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/08/2012
Before :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
MR JUSTICE GLOBE
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Between :

	Artur Krolik
Sylwester Kazmierczak
Piotr Zwolinski
Tomasz Lachowski
Tomasz Soltan
Daniel Walachowski	Appellants	
	- and -		
	Several Judicial Authorities of Poland	Respondent	

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Mr Mark Smith (instructed on a Direct Access basis) for the Appellants
Miss Hannah Pye and Miss Katherine Tyler (instructed by Crown Prosecution Service) for the Respondents

Hearing date: 24 July 2012
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Approved Judgment

President of the Queen's Bench Division : 

This is the judgment of the court.
1.	These six extradition appeals have been listed together as in each case the sole issue is the same, namely whether to extradite the appellants under either accusation or conviction European Arrest Warrants would be a breach of Article 3 of the Convention by reason of prison conditions in Poland.  In four of the appeals this issue was raised before the District Judge; in two of them it was not.  It is not necessary to set out the facts relating to each appellant.
2.	The purpose of hearing the six appeals together was to enable the court (1) to consider whether, in the light of the very large number of cases to which we refer at paragraph 8 below, the evidence adduced before this court raises any issue which has not already been considered; (2) to  consider whether it is the type of evidence that is anywhere near sufficient to establish a case under Article 3; and (3) to set out the way in which this court will deal with any further appeals raising the issue relating to Polish prison conditions in the future.
The legal principles
3.	The law is clear.  First, the circumstances in which this court as appellate court can be provided under s.29(4) of the Extradition Act 2003 with evidence which was not adduced before the District Judge is set out in the judgment of this court in Szombathely City Court v Fenyvesi [2009] EWHC 231.  If there is an intention to rely before this court, which is an appellate court, on evidence that was not adduced before the District Judge, then a statement must be served explaining the circumstances.  
4.	Second, it is very clear from a long line of authority in this court that Poland, as a Member State of the Council of Europe, is presumed to be able and willing to fulfil its obligations under the Convention, in the absence of clear, cogent and compelling evidence to the contrary.  It is not necessary for this court to restate the position.  It is well summarised in Targonsinski v Judicial Authority for Poland  [2011] EWHC  312 (Admin) and Agius v Court of Magistrates Malta [2011] EWHC 759 (Admin) at paragraphs 12 to 20.  In such a case it would have to be shown that there is a real risk of the requested person being subjected to torture or to inhuman or degrading treatment: see R(Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraph 24.
5.	Third, the presumption is of greater importance in the case of Member States of the European Union in relation to a European Union Instrument.  In N.S. v Secretary of State for the Home Department (C-411/10 and 493/10, 21 December 2011), the Luxembourg Court in a decision in relation to the removal of an asylum seeker to Greece, held there was a strong but rebuttable presumption that a Member State would abide by the Convention, as the common European asylum system was based on the assumption that states would abide by the Convention and that other states could have confidence in that regard.  The court said at paragraph 83:
“At issue here is the raison d’être 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.
6.	Fourth, the type of evidence necessary to rebut the presumption and establish a breach was made clear by the Luxembourg court – a significant volume of reports from the Council of Europe, the UNHCR and NGOs about the conditions for asylum seekers (see paragraph 91 of the decision in N.S.).  The Luxembourg court also had the decision of the Strasbourg Court in M.S.S v Belgium and Greece (21 January 2011) as evidence before it. 
7.	The reasoning of the decision in N.S. is plainly applicable to the Framework Decision which forms the basis of Part I of the Extradition Act 2003.  It reinforces the decisions of this court in Targonsinski and Agius.  It also confirms the observations of Mitting J in Tworskowski v Judicial Authority of Poland [2011] EWHC 1502 at paragraph 15 as to the type of evidence required, namely that something approaching an international consensus is required, if the presumption is to be rebutted. 
The volume of cases seeking to raise Polish Prison Conditions
8.	Despite this clear position, this court has been inundated with appeals where extradition has been challenged on the basis of the conditions in Polish prisons. Since the decision of the Divisional Court in Pisarek v the Regional Court in Elblag 11 [2010] EWHC 877 (Admin) decided on 23 March 2010 where this court considered Polish prison conditions in the light of the decision of the Strasbourg court in Orchowski v Poland (17885/04, 22 October 2009),  there have been at least the following cases in each of which the challenge has failed:
Lewczuk v Poland [2010] EWHC 2960 (Admin)
Sietens v Latvia [2010] EWHC 3438 (Admin)
Sawko v Poland [2011] EWHC 68 (Admin)
Targosinksi v Poland [2011] EWHC 312 (Admin)
Gorczynski v Poland [2011] EWHC 512 (Admin)
Mazurkiewicz v Poland [2011] EWHC 659 (Admin)
Golab v Poland QBD (Administrative Court) 26 May 2011 (Unreported) 
Susz v Poland [2011] EWHC 1862 (Admin); Official Transcript
Sypniewska v Poland [2012] EWHC 899(Admin) 
Krzyzak v Poland [2012] EWHC 810 (Admin)
R(Stopyra) v Poland [2012] EWHC 903 (Admin)
Monaterski v Poland [2012] EWHC 1311 (Admin)
Holman v Poland [2012] EWHC 1503 (Admin)
Lacki v Poland [2012] EWHC 1747 (Admin)
Hartung v Poland [2012] 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 [2010] HCJAC 41; 2010 J.C 229; 2010 S.C.L. 1049; 2010 S.C.C.R. 583 2010 G.W.D. 17-338
9.	As the law is clear, it cannot be and is not in the interests of justice and the proper conduct of the business of this court, that appeals raising the issue of Polish prison conditions in relation to Article 3 are dealt with in the ordinary way. 
10.	For the future therefore:
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
11.	The extradition hearing in the cases of  Artur Krolik, Sylwester Kazmierczak, Piotr Zwolinski, Tomasz Lachowski took place before District Judge Purdy.  The only issue raised was a breach of Article 3 by reason of the conditions in Polish prisons.  The evidence relied on was principally in the form of a letter of 8 June 2011 from the Deputy Human Rights Ombudsman to the Director of the Polish Prison Service and a reply dated 5 July 2011.  These were documents that were subsequently considered by Keith J on 14 March 2012 in Krzyzak v Regional Court of Tarnow [2012] EWHC 810 and by this court on 3 July 2012 in Hartung v The Circuit Court of Szczecin [2012] EWHC 1884.  In a written judgment on 12 March 2012 District Judge Purdy held that on the evidence before him nothing had changed since the decisions of this court in 2011.  The contention therefore failed. 
12.	In the cases of Tomasz Soltan and Daniel Walachowski, no such issue was raised; the hearings were uncontested; the issue was raised only on the appeal.
The evidence adduced on the appeal in this case
13.	On behalf of the appellants, a report had been prepared by Ms Maria Ejchart and Dr Piotr Kladoczny dated July 2012 with two short additional reports.  The authors of the reports monitor the situation in Polish prisons on a regular basis working with or for the Helsinki Foundation for Human Rights.  However, the opinions presented in the report were their own views.  Ms Maria Ejchart works for the Helsinki Foundation for Human Rights in Warsaw; Dr Piotr Kladoczny has worked at the Institute of Criminal Law at the Faculty of Law and Administration at the University of Warsaw since 1990 and at the Helsinki Foundation for Human Rights since 1996.  Since 2008 he has been the Head of the Institute of Law at the University.  He contributes extensively to legal literature and opinions.
14.	The report set out a detailed account of the organisation of Polish prisons.  The main failures in the prison service were identified in the report as follows:
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.
15.	Notwithstanding the principles ordinarily applicable as set out in the decision in Szombathely City Court v Fenyvesi, we took the exceptional course in the overall interests of justice to admit that evidence in the light of the numerous appeals to which we have referred and desirability of making the position for the future clear.
16.	After service of this report, Miss Tyler and Miss Pye had advised that evidence be obtained from Poland.  The route by which this was done was for the Crown Prosecution Service to send a request to the Serious Organised Crime Agency (SOCA).  SOCA then sent the request to the judicial authority in Poland that had issued the arrest warrant.  The judicial authority which had issued the arrest warrant was a court in Poland.  A typical response from the court was to say that, although the judge was not familiar with the details of the problems in Polish prisons, as far as the judge was aware conditions were good enough in Polish prisons to serve a sentence without special difficulties.  One of the judges had obtained information from the Director General of the Prison Service.  That was before District Judge Purdy; it comprised the letter of 5 July 2011 and a further letter of 9 January 2012.
17.	If a judge in England and Wales had been asked to comment on a similar issue, the judge would have referred the request to the Ministry of Justice, the Department of State responsible for prisons, which would provide a detailed response.  At the hearing we were told that two further letters from the Ministry were likely to be available.  They were provided first in Polish shortly after the hearing and then an English translation some 10 days later.  The first was a letter dated 19 April 2012 from the Under-Secretary of State of the Ministry of Justice to the Ombudsman for Human Rights commenting on the Ombudsman’s report on “The operation of the national preventative mechanism in Poland in 2010”.  The second letter was from Judge Monika Lewoc, Deputy Director, Department of Decision Implementation and Probation at the Ministry of Justice, commenting specifically on the reports of Ms Ejchart and Dr Piotr Kladoczny; as Mr Mark Smith pointed out, this letter concentrated on setting out the regulatory position more than answering the specific criticisms of how the Polish prison system actually works.
18.	Miss Tyler and Miss Pye, who appeared to represent the different respondents in the appeals were able to assist the court at the hearing as best they could with the evidence submitted on behalf of the appellants.  The letters of 19 April 2012 and 19 July 2012 provided significant further evidence.
19.	It is important first to set out the general evidence provided by the Ministry in its letter of 19 July 2012.  The law governing prisons is the Executive Penal Code which implements the Standard Minimum Rules for the Treatment of Prisoners and Recommendation of the Committee of Ministers of the Council of Europe to Member States on the European Prison Rules (Rec (2006)2).  Supervision of the legality and proper implementation of prisoners is exercised by penitentiary judges who have an unlimited right to enter prisons, inspect them and contact prisoners.  The letter concluded:
“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.”
20.	The responses to the detailed points made in the reports of Ms Maria Ejchart and Dr Piotr Kladoczny can be summarised as follows:
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.
21.	Although Mr Mark Smith has done his utmost to assist the court with the evidence contained in the report of Ms Maria Ejchart and Dr Piotr Kladoczny and the addenda, the evidence set out does not self evidently begin to establish the type of evidence that would be required to rebut the presumption and to find a breach of Article 3, as we have set out in paragraphs 6 and 7 above.  That in itself is sufficient to decide this appeal.
22.	In any event, the principal criticism made is that of overcrowding.  However it is clear on the evidence before us that space in a cell of 3m2 is now met in Polish prisons and the conditions which led the Strasbourg court to find a breach have been remedied; the more recent cases referred to by Ms Maria Ejchart and Dr Piotr Kladoczny all relate to persons with specific medical conditions in a period before 2008.  Apart from one day, the number of prisoners in prison was below capacity.  The detailed information provided by the Ministry of Justice shows that some of the other points made are also unfounded – for example categorisation, rehabilitation and health provision.  Even if it were possible to consider the report as evidence of the type that is required, it is simply insufficient to rebut the presumption.
Conclusion
23.	Each of the appeals therefore fails and must be dismissed.