England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		2 February 2011

1. LORD JUSTICE TOULSON: This is an appeal under section 26 of the Extradition Act 2003 against an Extradition Order, made by District Judge Evans at the City of Westminster Magistrates' Court on 28 January 2011, based on three European Arrest Warrants issued on various dates in May and June 2010 and certified by the Serious Organised Crime Agency on 6 July 2010. The EAWs were issued by courts in Lublin, Poland. They are all conviction warrants. They relate to offences of robbery, assault, possession of drugs and attempted burglary, for which the appellant received sentences of between 18 months' and 2 years' imprisonment. There remains an unexpired portion.
2. The appellant is now aged 27. He objected to the making of an Extradition Order on the basis that it would infringe his rights under Article 3 of the European Convention. In support of that objection he made a witness statement in which he said:

"I fear that if I am returned to Poland I will be subjected to degrading behaviour in the following ways:

(1) I will be made to share one roll of toilet paper with another person per month.

(2) I will only be allowed one single use razor per month.

(3) the cells are overcrowded and have five to six people per cell. The cells are the same size as British cells.

(4) there is no segregation in the prison so I could end up having to share a cell with a murderer, paedophile or rapist.

(5) the prison officers often arrange it so people serving their first sentence have to share with a paedophile which causes arguments. The prison officers get entertainment from this.

(6) the prison officers have a tendency to provoke those on first time sentences."

3. It is apparent from that statement that the complaints that he was making about the prison system in Poland, as recounted to him by others, were of a general nature. That is to say that he was describing what he believed to be systemic infringements of prisoners' rights rather than basing his statement on any particular personal experience of his own, or any risk which might apply particularly to him because of some particular characteristic rather than applying to prisoners generally.
4. The district judge was not persuaded that this evidence was sufficient to show that his extradition would contravene his rights under Article 3.
5. I agree with the district judge that his evidence fell far short of showing what would be necessary to make good his objection. The framework of the European Arrest Warrant scheme is constructed on a basis of mutual trust between the parties to the Convention, all of whom belong to the Council of Europe. The starting point is therefore an assumption that the requesting state is able to, and will, fulfil its obligations under the Human Rights Convention.
6. In KRS v United Kingdom application number 32733/08 2 December 2008, the Strasbourg Court made the following observations in a Dublin Convention case:

"The court recalls in this connection that Greece, as a contracting state, has undertaken to abide by its Convention obligations and to secure to everyone within their jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 3. In concrete terms, Greece is required to make the right to any returnee to lodge an application with this court under Article 34 of the Convention and request interim measures under Rule 39 of the rules of the court both practical and effective. In the absence of any proof to the contrary, it must be presumed that Greece will comply with that obligation in respect of returnees, including the applicant."

Mitting J cited that passage in the case of R (Jan Rot) v District Court of Lublin Poland [2010] EWHC 1820 (Admin) as applicable with at least equal force in an extradition case. I agree.

7. Mitting J continued at paragraph 11:

"There is a compelling public interest for Category 1 Convention States in seeing their own criminal law upheld in relation to those who may have infringed it. The European Arrest Warrant system is intended to provide an effective means of seeing that that important public interest is upheld without undue delay. Category 1 States can be taken to have accepted between themselves that conditions of detention and the adequacy of fairness of criminal justice systems in such states will not be required to be examined by other states when considering extradition applications by them. For those reasons, and in my opinion, for the purposes of Articles 2, 3 and if relevant 8, the treatment of a person extradited to a Category 1 State which is a signatory of the Convention is a matter between the individual extradited and that state, and not between the United Kingdom."

In the next paragraph he went on to acknowledge that an exception might apply if the constitutional order of the Convention State was overthrown, for example by a revolution. Otherwise, the passage cited appears, on its face, to amount to excluding any possibility of a defendant rebutting the presumption referred to in KRS v United Kingdom so long as the constitutional government of the requesting state remains intact.

8. If that is the correct way of reading his judgment, I respectfully consider that he put the matter too high. It is possible to envisage other circumstances in which a defendant might be able to displace the presumption.
9. In Orchowski v Poland application 17885/04, 22 January 2010, the Strasbourg Court concluded that there had been systemic violations of the Convention rights of prisoners in Polish prisons from 2000 until May 2008, but it noted that since then things had improved for a variety of reasons, including the intervention of the Polish Constitutional Court. The implications of that judgment were considered by this court in Pisarek [2010] EWHC 877 (Admin) in a case in which an appeal against an Extradition Order to Poland failed.
10. I refer to those cases for two reasons. First, if the Strasbourg Court were to find that conditions in a particular state systemically contravened prisoners' rights, I can readily envisaged a defendant who faced an application for an Extradition Order relying on such a judgment in order to displace the presumption referred to in KRS. I instance this as an example where a defendant would be able to place cogent material before the English court to displace the presumption. The second reason I mention it is because it has a direct relevance to the present case. There is no cogent or satisfactory evidence in this case to demonstrate that the conditions criticised by the Strasbourg Court during the period up to May 2008 still obtain in Poland or that this appellant's extradition would involve a contravention of his rights.
11. Given the presumption with which the court starts, it will require clear and cogent evidence to establish that in a particular case the defendant's extradition would have contravened his human rights. See the observations of Lord Bingham in Ullah [2004] 2 AC 323, particularly at paragraph 24. In this case the appellant's evidence falls far short of what would be necessary.
12. For those reasons this appeal is dismissed.
13. I am grateful to counsel for your help.
14. MR HENLEY: My Lord, just one small point. You mention in your judgment the witness statement. I think technically it was not a witness statement, because there was no statement of truth attached to it. But apart from that --
15. LORD JUSTICE TOULSON: Thank you very much.