QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE BURNETT
| Polish Judicial Authority
|- and -
(alias DEL PONTI)
|Polish Judicial Authority
|- and -
|Prosecutor General's Office, Lithuania
|- and -
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Ben Watson and Laura Mackinnon (instructed by CPS) for the Respondent in Wolkowicz
Joel Smith (instructed by Tuckers) for the appellant Biskup
Ben Watson and Nicholas Hearn (instructed by the CPS) for the Respondent in Biskup
Amelia Nice (instructed by TV Edwards) for the appellant Rizleriene
Ben Watson and James Stansfeld (instructed by the CPS) for the Respondent in Rizleriene
Hearing date: 18 December 2012
AS APPROVED BY THE COURT
Crown Copyright ©
The President of the Queen's Bench Division
This is the judgment of the court.
I Suicide Cases
"(1)This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2)The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.
(3)The judge must—
(a)order the person's discharge, or
(b)adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."
(a) The meaning of s.25 of the 2003 Act
"The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed."
It was submitted that as the Article refers to temporary postponement, the exercise of the power under s.25 should only be for temporary postponement save in an exceptional case.
"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."
"But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty."
(b) The previous cases
Boudhiba v National Court of Justice, Madrid  EWHC 167 (Admin),
Prancs v Rezekne Court of Latvia  EWHC 2573 (Admin),Kwietniewski v Circuit Court in Tarnobrzeg, Poland  EWHC 3121 (Admin),Spanovic v Government of Croatia  EWHC 723 (Admin),Jansons v Latvia  EWHC 1845 (Admin),Howes v HM Advocate  HCJAC 94, (2010) SLT 337,Prosser v Secretary of State  EWHC 845 (Admin),Rot v District Court of Lublin, Poland  EWHC 1820 (Admin),S v Court of Bologna  EWHC 1184 (Admin),Wrobel v Poland  EWHC 374 (Admin),Mazurkiewicz v Poland  EWHC 659 (Admin),Griffin v Westminster Magistrates Court and Tribunal de Grand Instance, France  EWHC 943 Admin,Kozlowski v Poland  EWHC 1706 (Admin),Savage v USA  EWHC 3317 (Admin).
"(1) The court has to form an overall judgment on the facts of the particular case.
(2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him.
(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a "substantial risk that [the appellant] will commit suicide". The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.
(4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.
(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?
(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide?
(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind."
(c) The importance of preventative measures
i) First, the position whilst the requested person is being held in custody in the United Kingdom is clear. As Jackson LJ observed in Mazurkiewicz at paragraph 45, a person does not escape a sentence of imprisonment in the UK simply by pointing to the high risk of suicide. The court relies on the Executive branch of the state to implement measures to care for the prisoner under the arrangements explained in R v Quazi  EWCA Crim 2759,  Crim LR 159.
ii) Second, when the requested person is being transferred to the requesting state, arrangements are made by the Serious Organised Crime Agency (SOCA) with the authorities of the requesting state to ensure that during the transfer proper arrangements are in place to prevent suicide in appropriate cases. As Collins J helpfully mentioned in Griffin at paragraph 52, steps should ordinarily be taken in such cases to ensure that no attempt is made at suicide and proper preventative measures are in place. Medical records should be sent with the requested person and delivered to those who will have custody during transfer and in subsequent detention.
iii) Third, when the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary: see the authorities set out at paragraphs 3-7 of Krolick and others v Several Judicial Authorities of Poland  EWHC 2357 and paragraphs 10-11 of Rot. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption.
It is therefore only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective.
(d) The timescale for appeals
II Mariusz Wolkowicz (alias Del Ponti)
(a) The offences committed by Wolkowicz
(b) The course of the extradition proceedings
(c) The judgment of the Senior District Judge on s.20: deliberate absenting from trial
(d) The evidence in relation to his physical disability
(e) The conflicting psychiatric evidence
(f) The conclusion of the Senior District Judge
(g) The submission on the appeal
(h) The further evidence of Dr Rix
III Wojciech Biskup
(a) The EAWs
i) A conviction EAW was issued in the District Court in Czestochowa, Poland on 3 June 2009. It related to a conviction on 24 August 2000 by the provincial court in Czestochowa of attempted racketeering and extortion between 27 January 2000 and 1 February 2000 with others in that he attempted to coerce money from the owners of a café in Czestochowa with other persons. He was sentenced to imprisonment for one year. That warrant was certified by SOCA on 23 August 2011.
ii) On 3 October 2011 the Circuit Court in Katowice issued an accusation EAW against Biskup. The accusation warrant accused him of a number of serious offences including participation in a criminal armed organisation between November 1998 and August 1999, murder on 2 August 1999 through the use of a firearm, attempted murder through the use of a bomb in August 1999, robbery in July and August 1999, burglary in August 1998, burglary in March 1999, possession of weapons and ammunition between July 1999 and September 1999, fraud in December 1999 and fraud in numerous instances in 2000 and 2001. The warrant was certified by SOCA on 11 October 2011.
(b) The arrest of Biskup and the course of the extradition proceedings
(c) The decision of the Senior District Judge on passage of time
(d) The judge's decision on mental health and the risk of suicide
"He faces very serious allegations. There would be no suggestion in this jurisdiction that a defendant accused of the offences which are alleged against Biskup would not face trial here and, if convicted, would not be in prison. I have full confidence in the Polish authorities' ability to care for this defendant and provide adequate treatment and protection for him."
(e) Further report of Dr Pasternak
(f) Submissions on the appeal
(g) Our conclusion
IV Vilma Rizleriene
(a) The EAW
"On 9 December 2008 between 11 a.m. and 2.30 p.m. at Vilties str. 8-22, Kelme City, Vilma Rizleriene gave birth in the bathroom to a baby girl – Gedene Rizleryte and right after the birth, while her child was helpless due to the infancy, pulled off the umbilical cord with her hands and thus bleeding from the umbilical cord, due to the developed anaemia the baby girl died on the spot within the couple of minutes; thus Vilma Rizleriene intentionally killed a preteen, helpless family member – Gedene Rizleeryte."
If found guilty she is liable to be punished by imprisonment from 8 to 20 years or imprisonment for life.
(b) The psychiatric evidence before Judge Wickham
(c) Information provided by the Ministry of Justice of Lithuania
(d) Decision of the District Judge
Appeal to this court
"It is strongly arguable that by reason of her mental condition it would be unjust or oppressive to extradite Ms Rizleriene."