Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 1
HCA/2016/000039/XM

Lord Menzies
Lord Bracadale
Lord Turnbull

OPINION OF THE COURT

delivered by LORD MENZIES

in

EXTRADITION APPEAL

by

LECH GRYC

Appellant

against

THE LORD ADVOCATE

Respondent

Appellant:  Party

Respondent:  Dickson, AD;  Crown Agent

2 December 2016

[1]        The appellant appeals to this court against the decision of the sheriff on 22 September 2016 to order his extradition to the Republic of Poland in terms of section 21(3) of the Extradition Act 2003.  The basis of the appeal is that the appellant suffers from a medical condition for which he is receiving treatment in Scotland and that if he were to be extradited to Poland he would miss appointments and/or the opportunity of surgery.  In addition in his submissions to us today, the appellant asserts that he has been advised that he will not be allowed the opportunity to appeal against his Polish conviction in absence, nor will he have the right to have his case re‑examined.

[2]        With regard to this second point, we note that it is clearly stated in the European Arrest Warrant that

“When served the decision, the person concerned will be clearly informed about his/her right for a re‑examination of the case or for an appeal.  The person would have a right to participate in the procedures which allow for a re‑examination of the case as far as its subjects matter and new evidence are concerned.  Which can also lead to a reversal or change of the previous decision and the person concerned will be informed about the date by which he/she has to apply for such a re‑examination of the case, or to appeal i.e. 7 days.”

We therefore do not consider that there is any substance to the appellant’s latter submission.

[3]        With regard to the first and principal ground of appeal, although we have before us the medical records of the appellant which were lodged in the court below, no up‑to‑date medical reports or records have been placed before us today.  In particular there is nothing before us to suggest that the appellant suffers from a medical condition which is not capable of being treated by the Polish prison authorities. 

[4]        The threshold for refusing to extradite a person to a member state of the European Union on medical grounds is a high one.  As this court observed in Agnieszka Jantos v The Lord Advocate [2015] HCJAC 32 at paragraph [11]:

“There is a strong but rebuttable presumption that member states of the European Union will not infringe the Convention rights of persons.  Extradition is based on reciprocity and there is a general obligation to surrender those who are the subject of legitimate European Arrest Warrants to the extraditing country, except in certain specified circumstances.  A high threshold must be reached in order to satisfy the court that a requested person’s physical condition is such that it would be oppressive to extradite him (Howes v HM Advocate [2010] HCJAC 123, Lord Emslie at paras [17]-[23]).  The onus is on an appellant to demonstrate such oppression.  As a generality, it is assumed that the prison system of a Category One requesting state will provide necessary medical treatment for prisoners (Wlodarczyk v The Lord Advocate 2012 SCCR 490, LJG (Hamilton) at para [38]; Allen v HM Advocate 2010 SCCR 861, Lord Clarke at para [14]).”

[5]        We were also referred by Mr Dickson on behalf of the Lord Advocate to the observations of this court in the case of Wlodarczyk, referred to above, and in particular the passage at paragraph 38 of that Opinion in which the court observed that:

“In cases involving European Arrest Warrants it should be assumed that the requesting state has facilities to treat mental illness and to address the possibility of self harm that correspond broadly to those available within the UK.  In this connection it is pertinent that all of the states of the European Union (that is to say all of the states that may issue European Arrest Warrants) are signatories to the European Convention on Human Rights.  It must accordingly be assumed that the prison regime of such a state is compliant with the Convention, and thus has adequate measures in place to protect prisoners from self harm.  It is not material however to consider the treatment available for prisoners with mental health problems is as good as that which might be available within the UK.  The fundamental point is that a basic standard of care will be met.”

That case, of course, was concerned with the treatment of mental illness but the same considerations apply to a case involving physical conditions. 

[6]        There is no material before us to rebut the presumption to which we have referred.  On the materials before us we cannot be satisfied that it would be oppressive to extradite the appellant to Poland.  We have considered carefully the report prepared for this court by the sheriff but we can find no error of law in his reasoning, nor in his disposal.  This appeal must therefore be refused. 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 1
HCA/2016/000039/XM

Lord Menzies
Lord Bracadale
Lord Turnbull

OPINION OF THE COURT

delivered by LORD MENZIES

in

EXTRADITION APPEAL

by

LECH GRYC

Appellant

against

THE LORD ADVOCATE

Respondent

Appellant:  Party

Respondent:  Dickson, AD;  Crown Agent

2 December 2016

[1]        The appellant appeals to this court against the decision of the sheriff on 22 September 2016 to order his extradition to the Republic of Poland in terms of section 21(3) of the Extradition Act 2003.  The basis of the appeal is that the appellant suffers from a medical condition for which he is receiving treatment in Scotland and that if he were to be extradited to Poland he would miss appointments and/or the opportunity of surgery.  In addition in his submissions to us today, the appellant asserts that he has been advised that he will not be allowed the opportunity to appeal against his Polish conviction in absence, nor will he have the right to have his case re‑examined.

[2]        With regard to this second point, we note that it is clearly stated in the European Arrest Warrant that

“When served the decision, the person concerned will be clearly informed about his/her right for a re‑examination of the case or for an appeal.  The person would have a right to participate in the procedures which allow for a re‑examination of the case as far as its subjects matter and new evidence are concerned.  Which can also lead to a reversal or change of the previous decision and the person concerned will be informed about the date by which he/she has to apply for such a re‑examination of the case, or to appeal i.e. 7 days.”

We therefore do not consider that there is any substance to the appellant’s latter submission.

[3]        With regard to the first and principal ground of appeal, although we have before us the medical records of the appellant which were lodged in the court below, no up‑to‑date medical reports or records have been placed before us today.  In particular there is nothing before us to suggest that the appellant suffers from a medical condition which is not capable of being treated by the Polish prison authorities. 

[4]        The threshold for refusing to extradite a person to a member state of the European Union on medical grounds is a high one.  As this court observed in Agnieszka Jantos v The Lord Advocate [2015] HCJAC 32 at paragraph [11]:

“There is a strong but rebuttable presumption that member states of the European Union will not infringe the Convention rights of persons.  Extradition is based on reciprocity and there is a general obligation to surrender those who are the subject of legitimate European Arrest Warrants to the extraditing country, except in certain specified circumstances.  A high threshold must be reached in order to satisfy the court that a requested person’s physical condition is such that it would be oppressive to extradite him (Howes v HM Advocate [2010] HCJAC 123, Lord Emslie at paras [17]-[23]).  The onus is on an appellant to demonstrate such oppression.  As a generality, it is assumed that the prison system of a Category One requesting state will provide necessary medical treatment for prisoners (Wlodarczyk v The Lord Advocate 2012 SCCR 490, LJG (Hamilton) at para [38]; Allen v HM Advocate 2010 SCCR 861, Lord Clarke at para [14]).”

[5]        We were also referred by Mr Dickson on behalf of the Lord Advocate to the observations of this court in the case of Wlodarczyk, referred to above, and in particular the passage at paragraph 38 of that Opinion in which the court observed that:

“In cases involving European Arrest Warrants it should be assumed that the requesting state has facilities to treat mental illness and to address the possibility of self harm that correspond broadly to those available within the UK.  In this connection it is pertinent that all of the states of the European Union (that is to say all of the states that may issue European Arrest Warrants) are signatories to the European Convention on Human Rights.  It must accordingly be assumed that the prison regime of such a state is compliant with the Convention, and thus has adequate measures in place to protect prisoners from self harm.  It is not material however to consider the treatment available for prisoners with mental health problems is as good as that which might be available within the UK.  The fundamental point is that a basic standard of care will be met.”

That case, of course, was concerned with the treatment of mental illness but the same considerations apply to a case involving physical conditions. 

[6]        There is no material before us to rebut the presumption to which we have referred.  On the materials before us we cannot be satisfied that it would be oppressive to extradite the appellant to Poland.  We have considered carefully the report prepared for this court by the sheriff but we can find no error of law in his reasoning, nor in his disposal.  This appeal must therefore be refused.