APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Eassie Lord Philip	[2010] HCJAC 64 Appeal No: XC190/10 OPINION OF THE LORD JUSTICE CLERK in the APPEAL by SEBASTIAN BIELECKI Appellant; against THE LORD ADVOCATE Respondent: _______

For the appellant: McCluskey; Capital Defence Lawyers, Edinburgh

For the Lord Advocate: Mure QC, AD; Crown Agent

23 June 2010

Introduction

[1] This is an appeal against a decision of Sheriff Crowe dated 26 February 2010 by which he ordered the extradition of the appellant to Poland in terms of section 21(3) of the Extradition Act 2003 and refused a devolution minute tendered on the appellant's behalf.

[2] On 4 November 2008 the District Court of Legnica, Poland, issued a European Arrest Warrant (EAW) in relation to sentences of imprisonment imposed on the appellant. The sentences arose out of four prosecutions in the Regional Court in Glogów‎ in the period November 2006 to October 2007. They related to offences of inter alia housebreaking, theft, robbery, vandalism, supply of a drug and possession of drugs. The appellant was imprisoned in Wroclaw Prison in connection with these offences between July and November 2007.

[3] The appellant resisted extradition on the grounds that (1) by reason of systemic overcrowding in Polish prisons, his rights under article 3 of the Convention would be violated if he were to be returned to Poland to serve his sentences; and (2) that extradition to Poland and imprisonment there would violate his rights under article 8 to respect for his private and family life.

The sheriff's findings in fact

[4] The appellant is 22 years old. He came to Scotland in November 2007 immediately after his release from Wroclaw Prison. His parents and his brother live here. He has had a relationship with Miss Allanah Taylor for two years and has been cohabiting with her and her child. In his Report the sheriff tells us that the appellant has now married Miss Taylor. The appellant and Miss Taylor gave evidence and the sheriff accepted them both as credible and reliable witnesses.

[5] The sheriff found that during the period of the appellant's imprisonment in Wroclaw he was kept in a two-man cell in which there were five or six other prisoners. Four bunks had been fitted into the cell. The remaining two or three prisoners had to sleep on mattresses placed in the middle of the floor or under the bunks. The appellant was allowed a shower once a week which he took in a large shower area along with 30-40 other prisoners. He was confined to his cell for 23 hours each day and was allowed an hour's exercise. Once a week he had a shower instead of the exercise period. Meals were provided three times a day but were of poor quality, being mostly bread. Inmates who had money could obtain better food and better conditions, including a single cell with television installed. The appellant and his cellmates regularly received less food than other inmates partly as a punishment and partly because they had no money. Bullying, violence and sexual abuse regularly took place among inmates. The appellant, though not victimised, had been afraid and worried about being attacked. The prison was dirty. He had seen rats in his cell and in the corridors. Prison warders patrolled the prison with dogs. There was no opportunity for education or work.

Further information from the Polish authorities

[6] On hearing the appellant's evidence the sheriff sought further information regarding current conditions in Polish prisons (cf Howes v HM Adv [2009] HCJAC 94; Gomez v Secretary of State for the Home Department [2010] EHHC 168 (Admin)). The Crown lodged a letter dated 5 January 2010 from Judge Bartlomiej Treter of the requesting court. Judge Treter said that if the appellant was extradited, he would be placed initially in the remand unit in Warsaw-Bialoleka, would then be transferred to Wroclaw and might thereafter be transferred to Wolów or Glogów. Judge Treter added that information provided by the penitentiary judge of the District Court in Wroclaw "shows that now the problem of overpopulation does not exist in the Penal Institution in Wroclaw. And living conditions have been improved due to completion of repairing-building works in this institution."

[7] The Polish authorities provided detailed statistical information relating to each of the Polish penal institutions as at 11 January 2010 by way of demonstrating the extent to which conditions had improved.

The sheriff's conclusions

Article 3

[8] The sheriff concluded that there had been a continuation of the work done in recent years by the Polish authorities to reduce prison overcrowding and that consequently there was a much improved position from that which had been obtained a few years ago. The up-to-date statistics relating to Wolów Prison showed that the prison's official capacity of 1020 in 2004 had been reduced to 989, which suggested that the previous cell capacity had been altered by the combining of cells or the withdrawal of unsuitable ones from use. This was in line with the recommendations made by the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment after its visit to Poland in 2004. Moreover Judge Treter's letter indicated that living conditions in Wroclaw Prison had been improved by the repairing and building works.

[9] The sheriff took into account the background of trust under which the EAW system is designed to operate. He also relied on the fact that Poland was a party to the EU Council Framework Decision of 13 June 2002. He considered that the Polish authorities had done as much as might be expected of them in the light of Orchowski v Poland (Application No 17885/04, 23 Oct 2009) and, more particularly, the appellant's evidence about prison conditions in Wroclaw in 2007. It was clear from Orchowski that since early 2009 prisoners could be housed in an institution in a way that would not give rise to article 3 complaints. While the statistics disclosed that various prisons were over capacity, the levels were nothing like those that had prevailed in 2006. While prison overcrowding had not been eliminated, the statistics for prisons located in the Wroclaw District showed a reduction from 24% overcrowding in November 2006 to a current overall figure of less than 5%.

[10] The sheriff considered that in terms of R (Wellington) v Secretary of State for the Home Department ([2008] UKHL 72), a relativist approach could be adopted in the light of these changed circumstances. The test, in his view, was whether substantial grounds had been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to article 3 in the receiving country (Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25, at para 67). In that context the requested country had to make an assessment of the conditions in the requesting country against the standards of article 3. Having sought reassurance from the Polish authorities, the sheriff made his assessment on the evidence presented to him. He was satisfied that there was no real risk that the appellant would face violations of article 3 in the prisons in which he was likely to be imprisoned if extradited.

Article 8

[11] The sheriff decided that the evidence given by the appellant and Miss Taylor did not reach the requisite standard set in Jaso v Central Criminal Court No 2 of Madrid (2007 EWHC 2983 (Admin), at para 57) and in Reid v HM Adv ([2009] HCJAC INFO). He considered that, as in all such cases, extradition would have adverse consequences for the individual concerned and for his private life and his family. In this case the appellant had no close family in Poland. Nevertheless the sheriff did not consider that the evidence on this issue was sufficient to justify his refusing to order extradition.

Submissions for the appellant

[12] Counsel for the appellant referred us to the argument unsuccessfully advanced for the appellants in Kropiwnicki v Lord Adv ([2010] HCJAC 41) and in Engler v Lord Adv ([2010] HCJAC 32). He accepted that we would be bound to reject that argument; but he formally advanced it in order to preserve his client's position. Secondly, he argued that Kropiwnicki and Engler were distinguishable in this case because the appellant had given evidence, accepted by the sheriff, as to conditions in Wroclaw Prison and the Crown had not attempted to rebut it save on the question of overcrowding. In support of this submission counsel advanced the startling proposition that in the proceedings before the sheriff the onus was on the Crown to disprove the appellant's case beyond reasonable doubt. This proposition was based on a complete misunderstanding of section 206 of the Extradition Act 2003. I propose not to discuss it further.

[13] Lastly, counsel submitted that the separation caused by the extradition of the appellant would damage his family life beyond repair and accordingly that the interference in his family life would be disproportionate to the legitimate aim of his being extradited.

New evidence

[14] In Engler v Lord Adv (supra) we discussed the stringent conditions on which new evidence can be entertained by this court in an extradition appeal. Undeterred by that decision, counsel for the appellant told us in the course of his speech that he relied on new evidence to the effect that Miss Taylor is pregnant with the appellant's child, that she suffers from depression and that she has admitted to self-harming. He asked us to take these facts into account since they were agreed by the Crown.

[15] The advocate depute told us that this was not so. He said that counsel for the appellant had shown him some documents allegedly bearing on these matters shortly before the appeal was called. He said that the Crown was in no position to admit or deny any of the representations of fact now made at the Bar. Counsel for the appellant replied to that by saying that there must have been a misunderstanding between him and the advocate depute.

[16] In the event counsel for the appellant failed to produce any firm evidence of any kind to support the representations of fact made by him. I propose therefore to disregard them in their entirety.

Conclusions
Article 3

[17] In my opinion, there is no substance in this ground of appeal. Counsel for the appellant suggested that this case was distinguishable from Kropiwnicki and Engler. I agree with that in the sense that the sheriff in this case had before him firm and authoritative evidence from the Polish authorities that demonstrated the considerable improvement in Polish prison conditions that had been achieved by 11 January 2010. That evidence supplemented and updated the information produced by the Polish authorities to the Strasbourg Court in Orchowski v Poland (supra). On the up-to-date information to which I have referred, the sheriff was entitled to conclude, for the reasons that he gave, that the appellant had failed to meet the test that applies in a case of this kind.

[18] In my opinion the sheriff reached the right conclusion. A Divisional Court in England has recently taken the same approach (Pisarek v Poland, 23 March 2010).

Article 8
[19] In my opinion, the case on article 8 is hopeless. Imprisonment is almost invariably disruptive to the family life of the prisoner. But the question for the sheriff was whether the appellant had demonstrated some "extraordinarily compelling feature" that would justify a refusal of the extradition of the appellant to serve sentences lawfully imposed upon him (Norris v USA [2010] 2 WLR 572, Lord Phillips of Worth Matravers at paras 54 and 56; cf also Jaso v Central Criminal Court No 2 of Madrid, supra; Ruiz v Central Criminal Court No 5 of Madrid, [2007] EWHC 2983 (Admin)). I can see nothing in the mere fact that the appellant would be separated from his parents, his brother and Miss Taylor and her child to justify a refusal to extradite the appellant.

Disposal

[20] I propose to your Lordships that we should refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Eassie Lord Philip	[2010] HCJAC 64 Appeal No: XC190/10 OPINION OF LORD EASSIE in APPEAL by SEBASTIAN BIELECKI Appellant; against THE LORD ADVOCATE Respondent: _______

For the appellant: McCluskey; Capital Defence Lawyers, Edinburgh

For the Lord Advocate: Mure QC, AD; Crown Agent

23 June 2010

[21] I agree with the conclusion reached by your Lordship in the chair that this appeal should be refused.

[22] While it was no doubt the case that, on the evidence of the appellant, accepted by the sheriff, the prison conditions of which the appellant spoke during his remand in 2007 might be seen as unacceptable and giving rise to potential violations of Art 3 ECHR, the question for the sheriff necessarily looked to present circumstances, and not historical circumstances in 2007. The sheriff had up-to-date information from the Polish judge which satisfied him that in present circumstances there were no substantial grounds for concluding that the appellant, if returned, would be at any real risk of being imprisoned in conditions which could properly be said to amount to a contravention of Art 3. I consider that it cannot be said that he was not entitled to reach that conclusion. The statistical information on the extent of overcrowding clearly indicated that, as respects overcrowding, matters had improved substantially and that by comparison with the situation prior to 2007 the percentage overcrowding was now low in the prisons in which the appellant was likely to be placed; and the information supplied also indicated that physical improvements had been carried out to the prison conditions in the prison in which the appellant was most likely to be placed.

[23] As to the invocation of Art 8 ECHR, the test in extradition cases is inevitably a high one, since imprisonment by its nature involves disruption of family life. It was accepted that the test was a high one, and I agree that the sheriff was entitled to conclude that the test for proper apprehension of an Art 8 violation was not met. I agree with the criticisms advanced by your Lordship of the manner in which counsel for the appellant sought, by ex parte submission and last minute exhibition of documents to counsel for the Lord Advocate, to introduce new evidence. But even if that evidence by assertion were admissible, for completeness, I have to say that I would not regard it as undermining or rendering inapplicable the sheriff's conclusion. It was not suggested other than that the appellant and his partner were well aware at the likely time of conception of the child, which his partner now expects, of the appellant's convictions in Poland and his being subject to extradition proceedings. They were well aware of the risk of that disruption to their family life.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Eassie Lord Philip	[2010] HCJAC 64 Appeal No: XC190/10 OPINION OF LORD PHILIP in APPEAL by SEBASTIAN BIELECKI Appellant; against THE LORD ADVOCATE Respondent: _______

For the appellant: McCluskey; Capital Defence Lawyers, Edinburgh

For the Lord Advocate: Mure QC, AD; Crown Agent

23 June 2010

[24] I agree that this appeal should be refused for the reasons set out by your Lordship in the chair.