England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17th March 2010

1. MR JUSTICE GRIFFITH WILLIAMS: This is an appeal under section 26 of the Extradition Act 2003 ("The Act") by Waclaw Kotwa against a decision of District Judge Nicholas Evans sitting in the City of Westminster Magistrates' Court on 28 January to order his extradition to Poland. The appellant is wanted to serve what remains of three separate sentences imposed in respect of seven offences of fraud, he having spent some time on remand in custody. Of the first sentence of one year's imprisonment, passed on 2 May 2005, there are seven months and 18 days of that sentence remaining; of the second sentence of two years 10 months' imprisonment passed on 28 October 2005 there are one month and 18 days remaining, and of the last sentence of 10 months' imprisonment passed on 28 September 2007 there are nine months remaining. He was arrested on 14 September 2009 at an address in Bradford pursuant to a European Arrest Warrant issued on 23 January 2009 by the Chief Justice of the Regional Court at Rzeszow. The extradition hearing took place on 28 January when extradition was resisted on grounds under sections 13, 14, and 21 of the Act. The District Judge concluded the submissions made on the appellant's behalf were hopeless. The appellant, who appears in person before this court, has provided no grounds of appeal but informs this court that he seeks to challenge the decision of the District Judge on human rights grounds.
2. I consider first extraneous considerations. Section 13 of the Act provides in its material parts:

"A person's extradition to a Category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that -

(b) if extradited he might be punished, detained or restricted in his personal liberty by reason of his race."

3. The evidential burden upon the appellant is to show a causal link between the issue of the warrant, his detention, punishment or prejudice which he asserts he will suffer. He must show that there is a reasonable chance or reasonable grounds for thinking, or a serious possibility, that such events will occur: see Hilali v the Central Court of Criminal Proceedings No 5 of the National Court of Madrid [2006] EWHC 762 (Admin).
4. In my judgment the starting point in the absence of cogent evidence to the contrary must be that Poland is a country which has been a member of the European Union since May 2004 and is a State party to the European Convention on Human Rights but most importantly it has been designated a Category 1 territory for the purposes of the Act. I am satisfied the clear inference must be that Poland and those concerned in Poland with the prison system will act in good faith and respect the appellant's human rights.
5. Article 3 states that no one should be subjected to torture or to inhuman or degrading treatment or punishment. The standard of proof to establish a bar to extradition by reason of Article 3 is that there must be strong grounds for believing that there is a real risk of the appellant being subjected to torture or to inhuman or degrading treatment or punishment.
6. The evidence of the appellant in the Magistrates' Court was that his partner is a Roma born in Poland, that he will be treated in prison as a Roma because his partner is a Roma and so he will suffer prejudice and problems. He told the District Judge that he will be attacked by fellow prisoners or prison guards, that he will be punched, kicked, or maybe stabbed to death. He said that he had previously served at least four years in a Polish prison between 2000 and 2006, but when asked by the District Judge, he said that during that time he had suffered no violence, although he had witnessed violence against others. The District Judge's note reads, "he was unable to explain why if returned he would suffer violence. He asked me to show him some sympathy."
7. The appellant relied also on his Article 8 right to respect for his private and family life. He said his imprisonment in Poland for what remains of his sentence will interfere with his family life. The principle to be applied has been expressed recently by the President, Lord Phillips, in Norris v the Government of the United States of America [2010] UKSC 9 paragraph 56.
8. The appellant's evidence before the Magistrates' Court was that his partner had one kidney removed in 2006 in Poland and that she has a lump on her heart. In this court he explained that was a swelling on the left ventricle. He told the District Judge she believes she has cancer and suffers from liquid on her lungs. Although he referred to the existence a medical report dated 19 December 2007 written in Polish he told the District Judge she has not sought any medical help in this country. She is apparently employed full time at a meat factory.
9. In this court the appellant made a number of representations about matters which he contends would breach his Article 3 and Article 8 rights. In addition to those matters he mentioned to the District Judge he told this court that Polish prisons have a notorious reputation for being overcrowded; for not fulfilling their rehabilitation role; for the food given to prisoners and for such matters as privileges - he relied upon cigarettes in that regard. He told this court that a cell mate in this country told him that he had been tortured. His request is that he should be allowed to serve his sentence in this country or in any other country but Poland, where he would expect to be treated with dignity. Apart from his assertions, there is no evidence to support any of those representations.
10. In my judgment the District Judge was perfectly entitled to reach the conclusions of fact that he reached, but that is not determinative of the appeal because this court must reach its own conclusion on the evidence. Having considered all the evidence given in the Magistrates' Court and what the appellant has told this court I am not persuaded that there is any prospect that his human rights under Articles 3 and 8 will be breached. In my judgment this appeal should be dismissed.
11. LORD JUSTICE TOULSON: I agree, the appeal will therefore be dismissed.