Scottish Sheriff Court Decisions

Court references 2B1367 and 2B1368/09

IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH

UNDER THE EXTRADITION ACT 2003

POLAND v ADAM KROPIWNICKI Prisoner in HM Prison Saughton, Edinburgh

Act Mr. D Dickson Crown Office International Unit

Alt Mr. Govier Advocate instructed by Mr. Templeton of Messrs. Wilson McLeod Solicitors, Edinburgh

Edinburgh 16^th December 2009

The Sheriff having resumed consideration of the requests made under the provisions of the Extradition Act 2003 by the Republic of Poland for the extradition of Adam Kropiwnicki, Prisoner in HM Prison Saughton, Edinburgh answers in the AFFIRMATIVE the question in section 21(1) of said Act and orders in terms of section 21(3) of the said Act, that the said Adam Kropiwnicki be extradited to Poland conform to the warrants of even date.

NOTE

Introduction

[1] This case involves two European Arrest Warrants which were issued by the Polish authorities in respect of the accused. The first EAW was issued on 14 March 2008 and involved charges of theft and assault and robbery, the other was issued on 22 September 2009 for an assault and robbery. Extradition was opposed on the basis that overcrowding was systemic in Polish prisons and if returned to Poland to serve the sentences of imprisonment which had been imposed the accused's Art 3 rights would be violated

Procedural History

[2] The cases first called at Edinburgh Sheriff Court on 18 November 2009. A Preliminary Hearing was fixed for 26 November and the full Extradition Hearing for 2 December 2009 and bail was refused. A Devolution Minute was lodged on 26 November but no appearance has been entered by the Advocate General. The Extradition Hearing commenced on 2 December and was continued until 9 December due to lack of court time and to enable defence counsel to ascertain whether the accused would give evidence. In the event no evidence was led from witnesses and parties completed their submissions. I closed the hearing and continued the case until today to consider the circumstances presented to me in argument and the various authorities submitted.

[3] When this case called before me on 2 December 2009 the issue seemed to focus on whether the accused's Human Rights would be violated if extradited to Poland. Mr. Govier earlier raised the prospect of a challenge in relation to the passage of time in terms of section of the Extradition Act 2003 but in the event this was not raised in terms.

[4]After hearing parties I refused a motion to adjourn the case to a later date. Mr. Govier had taken over the case from another counsel on 30 November. Mr. Govier accepted that he had dealt with the case of Koziel v Poland recently before Sheriff Maciver in a similar timescale and concerning the same area of challenge.

Procedure at the Extradition Hearing

[5] On behalf of the Lord Advocate Mr. Dickson pointed out that the accused had at the initial calling of the cases on 18 November accepted that he was the person referred to in the warrants and the procedures set out in section 8 had been complied with. Accordingly I was able to answer the question posed at section 7(2) of the 2003 Act in the affirmative and proceed to section 10.

[6] The warrants were dated 14 March 2008 and 22 September 2009 and both had been issued by the Regional Court in Bialystok in Poland. The accused had been sentenced to a term of imprisonment in excess of four months on each charge, namely five months' and two years' imprisonment on the first EAW and 2 years' imprisonment in respect on the second one. The charges in the earlier warrant were theft and assault and robbery-both of which were offences in Scotland. In the second warrant the offence was assault and robbery. Accordingly it was submitted that section 65(3) of the 2003 Act applied. There was agreement that all of the offences in the warrants were extradition offences and so the court moved on to consider whether there were any bars to extradition under section 11 of the 2003 Act.

[7] It was accepted on behalf of the accused that there were no bars to extradition and accordingly I moved on to consider section 20 of the 2003 Act. It was accepted that the accused had been present at both trials. He had been sentenced but apparently failed to appear at a later date to serve the sentences. Accordingly I moved on to consider section 21 of the 2003 Act and whether extradition would be compatible with the accused's Convention Rights.

The Issue-whether extradition would be compatible with the accused's Convention Rights

[8] I was referred by Mr. Dickson to Rozaitiene v The Republic of Lithuania [2009] NIQB 3, Higgins LJ at paragraph [29] where the court noted the approach taken in Saadi v Italy (2008) 49 EHRR 30, a decision of the Grand Chamber of the European Court of Justice and quoted paragraph 132 of that decision:-

"In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the court considers that the protection of art 3 of the convention enters into play when the applicant establishes... that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned."

[9] It was submitted standing the terms of Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), at paragraph 11 (infra) and Baksys v Ministry of Justice of the Republic of Lithuania [2007] EWHC 2838 (Admin) at paragraph 11 that in terms of the Extradition Act 2003 in was a matter for the accused to produce evidence in support of such a contention. It was not part of the 2003 Act process for the requested state "to request evidence relating to an issue raised by the other side. Of course there may come a time when it has to produce such evidence if it wishes to resist the implications of evidence advanced and proffered by an appellant or one who seeks to resist the effect of the warrant. But unless and until such evidence is produced, no such obligation arises.

[10] Reference was again made to Rozaitiene (supra) at paragraph [32] which states:-

"Where he alleges under section 21 that his extradition would not be compatible with his Convention rights within the meaning of the Human Rights Act 1998, the onus is on him to show substantial grounds for believing that his rights under Article 3 or 6 would be violated."

[11] At paragraph [6] of the Rozaitiene case reference was made to Office of the King's Prosecutor, Brussels v Cando Armas and Another [2005] UKHL 67 and in particular paragraph 53:-

"Accordingly, the grounds on which a member state can decline to execute a European arrest warrant issued by another member state are very limited. Article 3 sets out grounds on which execution must be refused. Article 4 sets out grounds on which execution may be refused. None of these grounds enable the merits of the proposed prosecution or the soundness of the conviction or the effect of the sentence to be challenged. There is one qualification that should, perhaps be mentioned. The execution of an arrest warrant can be refused if, broadly speaking, there is reason to believe that its execution could lead to breaches of the human rights of the person whose extradition is sought:"

[12] Mr. Dickson asserted that the only evidence produced was the case of Orchowski v Poland ECtHR 22 October 2009. That seemed insufficient standing what was said in Cando Armas (supra) at paragraph 132. Accordingly there needed to be substantial evidence that the accused faced a real risk of a human rights violation if extradited. In Miklis (supra) there were reports from experts which described prison conditions as "life threatening"- see paragraph 13, fourth bullet point.

Submissions on behalf of the accused

[13] Mr. Govier's argument was that the accused's Article 3 ECHR rights would be infringed if he was sent back to Poland to serve the sentences which had been imposed upon him. He said that the overcrowding in Polish prisons was systemic and sending Mr. Kropiwnicki back to serve the sentences would result in him being subjected to inhuman or degrading treatment or punishment.

[14] I was referred to R (Ullah) v Special Adjudicator [2004] 2 AC 323 an immigration and asylum case, Lord Bingham at page 352 paragraph 24:-

"it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment:...In Dehwari v Netherlands (2001) 29 EHRR CD 74 at 75 (para 61).. the Commission doubted whether a real risk was enough to resist removal under art 2, suggesting that the loss of life must be shown to be a "near certainty".

[15] I was then referred to Miklis v Deputy Prosecutor General of Lithuania (supra), Lord Justice Latham at paragraph 11:-

"The fact that human rights violations take place is not of itself evidence that a particular individual would be at risk of being subjected to those human rights violations in the country in question. That depends upon the extent to which the violations are systemic, their frequency and the extent to which the particular individual in question could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse. .....The material could go no further than raising a speculative, as opposed to a real risk of his being harmed in prison. And that goes nowhere near in establishing substantial grounds for believing that there would be a real risk of Article 3 ill-treatment in the sense that the authorities themselves would either be responsible for it, or be unable or unwilling to provide him protection from it."

[16] Mr. Govier referred me to the recent case of Orchowski v Poland (supra). In that case a serving Polish prisoner was found to have had his Article 3 rights violated. He had served his sentence in various institutions including Slupsk Remand Centre, Sztum Prison, Gdansk Remand Centre, Wejherowo Remand Centre, Kaminsk Prison, Goleniow Prison, Warszawa Mokotow Remand Centre and Wroclaw Prison. Complaints were made about conditions in all of these institutions apart from Wroclaw Prison where he is presently incarcerated.

[17] The Court in considering the merits of the case at paragraphs 113-115 noted the complaints were in relation to overcrowded cells with less than 3m2 of space per person, limited time outside his cell of only one hour per day, insanitary conditions concerning the right to one shower a week only and infrequent changes of clothes and bed linen. It was alleged that "the problem of overcrowding in Polish detention facilities was of a systemic nature and that it was widespread and persistent."

[18] The Court found unanimously in Mr. Orchowski's favour that there had been a violation of Article 3 of ECHR rights due to prison overcrowding and awarded him 3,000 Euros damages. I suggested that it was significant that the court had gone no further than to award damages. It appeared that conditions in Wroclaw Prison were not incompatible with prisoners' convention rights.

I was not clear where the present accused might serve his sentences in Poland if extradited. It also seemed from consideration of the dicta in Miklis (supra) at paragraph 11 that it was for the accused or witnesses called on his behalf to lead evidence why the accused would be specifically vulnerable if extradited. Mr. Govier said that in light of my earlier decision to refuse an adjournment he had no special witness to call. I asked if his client wished to give evidence and adjourned for him to take instructions on this matter. In the event when we resumed I was told that the Interpreter was unable to continue and accordingly I had no alternative but to adjourn the case until 9 December.

[19] When I resumed consideration of the case on 9 December I was advised that the accused would not be giving evidence nor would be calling any witnesses. Counsel indicated that the challenge to extradition rested on the case of Orchowski v Poland (supra) and related authorities. Counsel confirmed that the accused was still insisting on the Devolution Minute which had been lodged on 26 November. The argument in relation to the Minute was identical to the one advanced in terms of section 21 of the 2003 Act. The accused wished to preserve his position on both fronts. Counsel indicated however that the challenge to extradition was restricted to Art 3 of ECHR and no argument was being advanced in respect of Art 8.

[20] Counsel referred me to Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25, a Grand Chamber case where at paragraphs 67 and 68 the Court set out the relevant principles:-

"It is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have 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. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§ 89-91).

It would hardly be compatible with the "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble refers, were a Contracting State knowingly to surrender a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment (see Soering, cited above, pp. 34-35, § 88)."

[21] Next I was taken to the case of Saadi v Italy (supra) at paras 125-7:-

"However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, §§ 90-91; Vilvarajah and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v. France, judgment of 29 April 1997, Reports 1997‑III, § 34; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007).

In this type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I).

  Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation (see Ireland v. the United Kingdom, judgment of 8 January 1978, Series A no. 25, § 163; Chahal, cited above, § 79; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001-XI; and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 335, ECHR 2005-III). As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim's conduct (see Chahal, cited above, § 79), the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001, and Ramirez Sanchez v. France [GC], no. 59450/00, §§ 115-116, 4 July 2006)."

[22] Counsel turned back to the case of Orchowski v Poland (supra.) The applicant in that case was a serving prisoner who had complained about the conditions he had experienced in seven out of the eight institutions in which he had been incarcerated. These complaints were mainly directed towards the lack of space afforded to him as a prisoner. I was referred to paragraph 75. of the judgment which quoted from Article 110 of the Polish Code of Execution of Criminal Sentences and specified that:-

"the area of the cell shall be no less than 3 square metres per detainee."

[23] Paragraph 76 of Orchowski describes how the Minister of Justice issued an Ordinance in 2000 followed by a replacement in 2003 on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded on a nationwide scale the overall capacity of such establishments. The Director General of the Polish Prison Service has to report this fact to the Minister of Justice, regional prison directors and individual governors of the establishments. Steps have to be taken to adapt prison quarters to comply with the conditions required for a cell. Paragraph 2 of the Ordinance goes on to state:-

"3. In the event that the establishment's capacity is exceeded, detainees shall be placed in supplementary cells for a specified period of time.

4. In the event that the additional accommodation in the supplementary cells is used up, detainees may be placed in conditions where the area of a cell is less than 3 square metres per person."

[24] Counsel pointed out that paragraph 77 of Orchowski said that:-

"Detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice."

[25] Counsel then referred to paragraph 89 of Orchowski which highlighted the measures undertaken by the authorities in Poland to reduce the rate of overcrowding in detention centres:-

"The Government submitted that the problem of overcrowding in Polish detention facilities had started in September 2000. It was at its worst in November 2006 with the rate of overcrowding peaking at 24%. Since then, however, a series of robust measures had been undertaken to fight the problem of overcrowding. As a result, the rates of overcrowding, calculated for all detention facilities, dropped by September 2008 to 6.8% and calculated only for prisons and remand centres, to 8.1%. According to the statistics published by the prison service authorities, in June 2009 those rates were 3.2% and 4% respectively."

[26] Mr. Orchowski had complained that his detention in the conditions of the prisons and remand centres which he had been held since 2003 amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. He alleged at paragraph 93:-

"that the overcrowding and insanitary conditions, which had persisted during the long years of his incarceration, had had an adverse effect on his physical health and caused him humiliation and suffering."

[27] Counsel referred to paragraphs 113-115 which specify the merits of the case from Mr. Orchowski's viewpoint. The Court's assessment appears at paragraphs 119 et seq. Certain parts of this section were highlighted to me:-

"119 The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV).

As the Court has held on many occasions, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether a treatment is "degrading" within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67‑68, 74, ECHR 2001-III; Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001‑VIII).

122.  The extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were "degrading" from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, 7 April 2005).

In its previous cases where applicants had at their disposal less than 3 m² of personal space, the Court found that the overcrowding was so severe as to justify of itself a finding of a violation of Article 3 of the Convention (see, among many others, Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, § 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §47-49, 29 March 2007; Labzov v. Russia, no. 62208/00, § 44, 16 June 2005).

123.  The Court must have regard to the findings of the Constitutional Court and different State authorities, which identified the systemic nature of the problem of overcrowding of detention facilities in Poland (see paragraph 85 above).  In this connection the Court refers to the judgment of 26 May 2008 in which the Constitutional Court found that a person cannot be afforded humane treatment in a prison cell, in which individual living space is less than 3 m² (Article 41 § 4 of the Constitution) and that overcrowding of such a serious character as had existed in Poland, could in itself be qualified as inhuman and degrading treatment (Article 40 of the Constitution).

The Court observes that Article 40 of the Constitution is drafted almost identically to Article 3 of the Convention. Therefore, the Court, mindful of the principle of subsidiarity, finds that the above-mentioned ruling of the Constitutional Court can constitute a basic criterion in the Court's assessment whether the overcrowding in Polish detention facilities breaches the requirements of Article 3 of the Convention. In consequence, all situations in which a detainee is deprived of the minimum of 3 m² of personal space inside his or her cell, will be regarded as creating a strong indication that Article 3 of the Convention has been violated."

[28] The Court's judgment in Orchowski on the overcrowding issue concluded at paragraph 131:-

"The Court notes that the Government acknowledged that the majority of the detention facilities in question had been overpopulated at the material time. Moreover, it is not convinced by the Government's assertion, which is not supported by conclusive documentary evidence, that the applicant's cells, only with the exception of a few short periods of time, had remained unaffected by that problem and that the living conditions which he had been afforded had complied with Convention standards.

It is to be further observed in this connection that the applicant's allegations of overcrowding were, to a great extent, corroborated by the letter sent to his lawyer by the Office of the Prison Service and the letter sent by the prison administration to the Ministry of Justice.

The Court therefore finds it established to the standard of proof required under Article 3 of the Convention that the majority of the applicant's cells, in which he had been held for most of his detention were overcrowded beyond their designated capacity, leaving the applicant with less than 3 m² of personal space and at times, with less than 2 m². Even if occasionally the cell was within or below its designated capacity, the applicant was usually afforded only a little more than 3 m² of personal space (see paragraphs 28, 38 and 42 above)."

Other aggravating features of the living and sanitary conditions during detention are to be found at paragraph 132.

[29] The Court concluded in Mr. Orchowski's favour at paragraphs 134 and 135:-

"It has been established that the applicant in the instant case for the most part of his detention had been afforded below 3 and at times, even below 2 m² of personal space inside his cells.

In addition, as the applicant's personal space was particularly limited for almost the entire day and night, he had to have his meals inside his overcrowded cell and to shower along with the group of strangers, sometimes as many as twenty-four, and finally, as he had constantly been moved between cells and facilities, the Court considers that those conditions obviously did not allow any elementary privacy and aggravated the applicant's situation (see Kalashnikov v. Russia, no. 47095/99, § 99, ECHR 2002-VI).

  Having regard to the circumstances of the case and their cumulative effect on the applicant, the Court considers that the distress and hardship endured by the applicant exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3. Therefore, there has been a violation of Article 3 of the Convention on account of the conditions in which the applicant has been detained since 2003."

[30] The Polish Government acknowledged certain failures at para 146:-

"The Government acknowledged the existence and the systemic nature of the problem of overcrowding in Polish detention facilities. They stressed, however, that since the problem had already been identified at the national level, a number of measures had been undertaken to improve gradually the situation and to ultimately eradicate the problem. The Government also observed that it was unlikely that further similar applications would be brought before the Court since the civil law in Poland provided an effective remedy for persons detained in inhuman and degrading conditions. Taking into account the above considerations and the Constitutional Court's judgment of 26 May 2008 ordering further reforms of the law and the reorganisation of the penitentiary system, there was no need for the Court to order any general measures in this area."

The Court's assessment began at paragraph 147:-

"In this context, the Court observes that approximately 160 applications raising an issue under Article 3 of the Convention with respect to overcrowding and consequential inadequate living and sanitary conditions are currently pending before the Court. Ninety-five of these applications have already been communicated to the Polish Government.

Moreover, the seriousness and the structural nature of the overcrowding in Polish detention facilities have been acknowledged by the Constitutional Court in its judgment of 28 May 2008 and by all the State authorities involved in the proceedings before the Constitutional Court, namely the Prosecutor General, the Ombudsman and the Speaker of the Sejm, (see paragraph 85 above), and by the Government (see paragraph 146 above).

The statistical data referred to above taken together with the acknowledgements made by the Constitutional Court and the State authorities demonstrate that the violation of the applicant's right under Article 3 of the Convention originated in a widespread problem arising out of the malfunctioning of the administration of the prison system insufficiently controlled by Polish legislation, which has affected, and may still affect in the future, an as yet unidentified, but potentially considerable number of persons on remand awaiting criminal proceedings or serving their prison sentences (see mutatis mutandis Broniowski v. Poland [GC], no. 31443/96, §§ 189, ECHR 2004-V).

The Court concludes that for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres revealed a structural problem consisting of "a practice that is incompatible with the Convention" (see mutatis mutandis Broniowski v. Poland, cited above, §§ 190-191, ECHR 2004-V; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 229-231, ECHR 2006-...; Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999-V with respect to the Italian length of proceedings cases)."

[31] Counsel submitted Orchowski represented a sea change or step change in the Polish authorities' response to prison conditions although Mr. Govier conceded that the Polish Constitutional Court had reached a similar decision in the case of Garbacz on 26 May 2008 Case 62/4/A/2008. In the present proceedings a letter was produced from the Regional Court in Bialystok dated 1 December 2009 addressed to the accused's solicitors. It was to the effect that if the accused was extradited he would be placed in one of the remand centres in Warsaw before being transferred to the Arrest on Remand Centre in Bialystok on the basis that prisoners usually serve their sentences in institutions near their homes. The letter went on to state:-

"It is also possible that the subject may be transferred to another unit during the course of serving his sentence, depending on the decision of the Penitentiary Board which qualifies the convicts, for example on the grounds of reoffending or their age."

I accepted this document as evidence in terms of section 202 of the 2003 Act

[32] Counsel accepted that the letter did not mention any of the institutions criticised in Orchowski but indicated that like Orchowski it appeared that if extradited the accused would most likely be transferred around the Polish prison estate and in terms of Orchowski where 7 out of 8 institutions had been overcrowded he would most likely face the same conditions. The existence of the Ordinance of 2003 mentioned in paragraph [23] above gave further credence to the systematic nature of the Polish prisons overcrowding problem.

[33] In terms of Saadi v Italy paragraph 125 (supra para [21]):-

"expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3."

Counsel submitted that substantial grounds had been shown in the present case in terms of Orchowski and that it was not necessary for the accused or any other witness to give evidence. It was a matter for the Polish authorities to produce information to satisfy the court that in the accused's case he would not suffer overcrowding if extradited. Undertakings had been given by requesting states in other cases or perhaps even sought by the authorities in the contracting state in order that they could cover the point raised in Saadi. In the case of Wellington v Secretary of State for the Home Department [2008] UKHL 72; [2009] 1 AC 335, where the appellant was sought for two murders which had been committed in the United States of America, the US prosecutor had given an undertaking that he would not seek the death penalty. In a similar vein in the case of Howse v H M Advocate [2009] HCJAC 29 at Para [10] there is described the special arrangements made for the safety and treatment of the appellant should she be extradited. No such assurances had been sought by the Crown or were offered in the present proceedings.

[34] Counsel said that it was not clear if persons arrested on an EAW and returned to Poland to serve prison sentences would get any preferential treatment to ensure there were not subjected to Article 3 violations. Standing the fact that Orchowski was a very recent decision of the Grand Chamber which had been issued in October of this year it could be considered as reflecting current Polish prison conditions, a better course would be for the present EAWs to be withdrawn. If the accused failed to return to Poland to serve the sentences of imprisonment voluntarily the authorities could raise fresh warrants in 6 months' time at which point they could inform the court that general prison conditions now complied with Article 3 or provide an undertaking that a specific institution was not overcrowded and the accused could serve his sentences there without fear of facing overcrowding.

[35] Counsel went on to say that Paragraph (13) of the preamble to the Council Framework Decision on the EAW (2002/584/JHA) stated:-

"No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subject to the death penalty, torture or other inhuman or degrading treatment."

This was an obligation on the state to which the EAW had been sent rather than the Requesting State.

[36] In Miklis (supra) the human rights challenges to extradition under section 21 of the 2003 Act were that the appellant had been a police informer but this fact had become widely known and he had been seriously assaulted. The appellant was also said to be in a fragile mental state and a history of attempts at suicide. Notwithstanding these issues the appeal failed. Counsel was critical of the test deployed by Latham LJ in Miklis at paragraph 11 which I have quoted at para [15] above. Counsel suggested that the test in Miklis which purported to take into account the extent to which the violations of the Convention were systemic, their frequency and the extent to which the particular individual in question could be said to be specifically vulnerable by reason of a characteristic which would impose him to human rights abuse (my italics) was too stringent.

[37 In Orchowski (supra) it was concluded by the Court at paragraph 135 that "the circumstances of the case and their cumulative effect on the applicant" resulted in "distress and hardship" which exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3."

Accordingly the accused in the present case faced a similar fate and it was not necessary to show any special circumstances on his behalf which might make him more susceptible to a violation of his Article 3 rights.

[38] Counsel concluded by stating that Mamatkulov and Askarov v Turkey (supra) at paragraph 67 was the correct test in this context that Article 3 would engage the responsibility of the Contracting State where substantial grounds (as evidenced by Orchowski) had been shown for believing the accused would if extradited, face a real risk of being subjected to treatment contrary to Article 3 of the Convention. The court did not require to follow Latham LJ and in any event the test deployed in Miklis (supra) did not appear to have been used previously.

Submissions on behalf of the Lord Advocate

[39] Mr. Dickson began by stating that Miklis had been approved of in The Queen (on the application of Bary and Fawaz v The Secretary of State for the Home Department [2009] EWHC 2068 (Admin) (hereinafter referred to as Bary) (see paragraph 52.) and followed in Wellington v Secretary of State for the Home Department (supra).

[40] Mr. Dickson said that he accepted Orchowski (supra) was up-to-date and accepted as stated at paragraph 146 of the Court's decision that the Polish Government acknowledged "the existence and the systemic nature of the problem of overcrowding in Polish detention facilities." He noted that paragraph 147 of the judgment referred to 160 similar applications pending before ECtHR in relation to prison conditions and that 95 of these applications had already been communicated to the Polish Government. These complaints arose from a prison population of 40,000. Paragraphs 152-154 of the judgment noted the steps being taken by the Polish authorities to improve prison conditions. Mr. Dickson highlighted in particular from paragraph 154 the emerging practice of prisoners seeking damages through the Polish civil courts; "the principles had been set out by the Polish Supreme Court of 28 February 2007 (File Ref. No. V CSK 431/06)."

[41] I was referred to Trajer v Her Majesty's Advocate 2009 SCCR 151 at para [35] and Baksys v Ministry of Justice for the Republic of Lithuania [2007] EWHC 2838 (Admin). In the former case their Lordships said:-

"we do not consider that what is said ... would itself displace the presumption which we see as arising from the membership of the Czech Republic of the European Union and its participation in the European Arrest Warrant system to the effect that prison conditions there are compatible with the provisions of the European Convention on Human Rights. Were it to emerge at some later stage that there were legitimate concerns about the conditions in which the appellant was incarcerated in the Czech Republic, following his extradition, and their compatibility with the provisions of the Convention, that is a matter which could be raised in the Czech Republic itself."

[42] Mr. Dickson submitted there was a presumption in favour of the Polish authorities complying with the Convention. If any evidence had been advanced to show that the Framework Guidelines principles would not be complied with then it would be necessary for the Requesting State to either lead evidence to the contrary or provide an undertaking to the court to avoid a particular violation occurring. No such evidence had been led in the present case to discharge the presumption that if the EAW was enforced the accused would become subject to an Article 3 violation. There had to be particular circumstances placed before the court specific to the individual before a decision not to extradite on grounds of an Article 3 violation could be taken.

[43] In the Miklis case the appellant had given evidence how his life had been affected in Lithuania when it became known he had been a police informant and allegations of police ill-treatment which were made were described by the court at paragraph 11 as going:-

"nowhere near establishing substantial grounds for believing that there would be a real risk of Article 3 ill-treatment in the sense that the authorities themselves would either be responsible for it, or be unable or unwilling to provide him protection from it."

[44] Mr. Dickson said by contrast the accused had produced no evidence to show how he would be affected if sent to an overcrowded prison. The appellant had spent no time in prison in Poland in connection with the EAW offences.

[45] I was referred again to Wellington (supra) which was followed in Bary (supra) see paragraphs 53-70. In the former case the majority of the court had preferred a "relativist" approach to what constitutes Article 3 inhuman or degrading treatment as opposed to an "absolutist" approach if the treatment likely to be faced by an individual extradited to the requesting country would be inhuman or degrading for Article 3 purposes in a domestic context. In the speech of Lord Hoffman in Wellington which was in favour of the relativist approach, at paragraphs 23 and 24 his Lordship referred to Soering (supra) at paragraphs 88 and 89 and the distinction drawn between torture and other inhuman or degrading treatment:-

"Torture attracted such abhorrence that it would not be compatible with the values of the Convention for a Contracting State knowingly to surrender a fugitive to another State if the were substantial grounds for believing that he was in danger of being subjected to torture, "however heinous the crime allegedly committed". The position in relation to inhuman or degrading treatment is more complicated. What amounts to such treatment depends upon "all the circumstances of the case".

Lord Brown agreed and in his speech at paragraph 89 stated:-

As the ECtHR said in Saadi, a real risk of article 3 ill-treatment is "only rarely" established.

[46] Article 4.6 of the Council Framework Decision had not been given effect to by the United Kingdom so it was not possible for the accused to serve the sentences contained in the EAW in Scotland. Similarly there was no extra-territorial jurisdiction available to prosecute the accused in Scotland for the offences contained in the EAWs. As in Wellington and Soering the court was faced with a choice of extraditing the accused or releasing him. In Soering at paragraph 91 the court said:-

"In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (art. 3) of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."

[47] This principle had been developed in Saadi (supra) at paragraphs 130 and 131:-

"In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances."

The Court also cited Vilvarajah and Others v the United Kingdom judgment of 30 October 1991 at paragraph 131:-

""At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3...and that, where the sources available to it describe a general situation, an applicant's specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov" (supra))."

[48] As regards the test to be deployed in this context Mr. Dickson referred to Baksys (supra) at paragraph 11 Moses LJ giving the opinion of the court:-

"[Counsel] seeks to resist that conclusion by suggesting that since it is the Government of Lithuania seeking the extradition of his client, it was up to them to produce evidence... I do not accept that there was any such obligation on the part of the Government of Lithuania. The whole purpose, as [Counsel] made clear in her submissions, of the procedures under the Extradition Act 2003 is to give force to the comity of nations identified in Part 1 of the Order, ... who are enabled to take the benefit of a speedy and, it was hoped, comparatively inexpensive procedure under the new Act. It would run wholly counter to the scheme of that process, which allows extradition on the basis of a European Arrest Warrant, provided it complies with the statutory conditions, to require the requesting state to request evidence relating to an issue raised by the other side. Of course there may come a time when it has to produce such evidence if it wishes to resist the implications of evidence advanced and proffered by an appellant or one who seeks to resist the effect of the warrant. But unless and until such evidence is produced, no such obligation arises."

[49] Mr. Dickson submitted that this was the same as the approach adopted in Trajer at paragraph [35] (see para [41] above where the appellant's affidavit on prison conditions in the Czech Republic was not held sufficient to displace the presumption that the requesting state would comply with ECHR and its participation in the EAW system. Mr. Dickson submitted that the test adopted by Latham LJ in Miklis paragraph 11 (see para [15] above) was the correct one to deploy and that it has a basis in Saadi and Soering. He submitted that in addition to establishing that inhuman and degrading conditions were systemic in Poland the accused had to show in his own particular circumstances how there would be a real risk of his Article 3 rights being violated if extradited to serve the sentences contained in the EAWs.

[50] Mr. Dickson did not agree with the construction placed upon the passage in Mamatkulov (supra) at paragraph 67 referred to by counsel at para [20] above. Instead he commended the relativist approach adopted by the majority of their Lordships in the House of Lords case of Wellington (supra) (see para [45] above).

[51] In terms of Saadi (supra) at paragraph 133 the Polish authorities could be assumed to be aware of the risk in regard to prison overcrowding and the potential for a violation of Article 3 of the Convention; this was apparent from the Polish Government's submissions to the court in Orchowski (supra) see para [40] above. So far as the letter produced by the accused from the President of the Criminal Division of the Regional Court in Bialystok was concerned, (see para [31] above) it referred to the accused being incarcerated in "one of the arrest on remand centres in Warsaw" on his arrival in Poland if extradited, then transportation to the Arrest on Remand Centre in Bialystok. This was the only additional evidence before the court and it did not indicate that the accused would if returned be sent to one of the institutions criticised in Orchowski.

[52] Mr. Dickson submitted that the Polish Constitutional Court's decision in Garbacz (supra) and the ECtHR decision in Orchowski were wake up calls for the Polish prison system in the same way as Lord Bonomy's decision in Napier v Scottish Ministers (26 April 2004) was for the Scottish Prison Service. That decision had not been to the effect that all of the Scottish prison estate was defective. Accordingly it was a matter for the accused to show how he would be affected if extradited. If he could point to problems in a specific establishment where he would be sent then it might be necessary for an undertaking to be sought from the Polish authorities. It was Mr. Dickson's contention that this threshold had not been reached. There had to be more than a possibility there had to be a real risk. It was clear that if the accused was extradited and subsequently found himself in an overcrowded prison then he could raise an action in the Polish courts or to the European Court of Human Rights to secure a remedy.

[53] Mr. Dickson said that Wellington provided that a balance must be struck between when considering inhuman or degrading treatment allegations and torture cases which violated Article 3. It was clear from Orchowski that overcrowding had occurred from time to time during the applicant's time in the Polish prison system-see paragraphs 41 and 46 of the court's opinion. In the speech of Lord Hoffman in Wellington at paragraph 24 his Lordship comments on Soering (supra) at paragraph 89 which discusses the search for a fair balance between "the demands of the general interest of the community and the requirement of the protection of the individual's fundamental rights" and says:-

"The passage makes it clear that the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the "minimum level of severity" which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account."

[54] I was referred to paragraph 26 of Wellington where Lord Hoffman commented on paragraph 110 of Soering:-

"The inference I would draw from this passage is that if Mr. Soering could not have been tried in Germany and the court had been left with the stark choice of extraditing him to Virginia or allowing him to escape justice altogether, it would not necessarily have decided that, in the context of extradition, the method of implementing the death penalty in Virginia made punishment sufficiently severe to be inhuman or degrading treatment."

Mr. Dickson referred to paragraphs 32 and 33 of Wellington where Lord Hoffman noted the relativist approach taken by the Supreme Court of Canada and while highlighting the difference between the Canadian Charter of Human Rights and ECHR concluded at paragraph 33:-

"But the Canadian cases show the practical need to construe any human rights instrument in a way which does not make extradition dependent upon compliance by the receiving country with the full panoply of rights enjoyed in the extraditing country."

Mr. Dickson said that Lord Carsewell had reached a similar view in Wellington at paragraphs 56 and 57 where he highlighted the importance of context when balancing between "the importance of facilitating extradition and the prohibition against extraditing an alleged offender to face treatment which could be classed as inhuman or degrading."

[55] In Orchowski (supra) the systemic problem of prison overcrowding had been dealt with on two levels by the Polish authorities trying to resolve the problems in prisons and prisoners seeking remedies in the Polish civil courts. Mr. Dickson said there was no evidence before the court and it was not known which prison the accused would be sent to if extradited nor that such prison would not be ECHR compliant. It was only speculation where the accused could find himself if extradited; that was not sufficient to prevent extradition. The accused had to produce positive evidence that there was a real risk Article 3 would be breached if he was sent back to Poland to serve the sentences.

[56] In light of Wellington, Saadi and Soering the purpose of extradition was based upon mutual recognition and the principles involved were balanced against the personal circumstances of the potential extraditee. In the present case the statutory basis for extradition had been made out and against that was the possibility, speculative possibility that the accused if extradited might be sent to a non-compliant prison which would violate Article 3 rights.

[57] I was referred to "Human Rights Law and Practice" (3^rd Edition) by Lord Lester of Herne Hill QC and others which refers to Wellington at page 210, paragraph 4.3.38 and states:-

"the House of Lords by a 3:2 majority held that in extradition cases raising issues of inhuman and degrading punishment (falling short of torture) in the receiving state, a "relativist" approach is required."

Mr. Dickson submitted that in the present case the balance fell towards the surrender of the accused. Mr. Dickson conceded that the Devolution Minute was properly before the court but the arguments in support of it were the same as those deployed by the accused seeking the court to answer the question posed at section 21(1) of the 2003 Act in the negative and accordingly the minute should be refused also.

Reply on behalf of the accused

[58] Mr. Govier remained critical of the test used by Latham LJ in Miklis at paragraph 11. The case of Bary was also an English Court of Appeal decision and was not binding. The case of Saadi v Italy had been decided after Miklis but made no mention of it (despite the United Kingdom submitting third-party comments see paragraphs 117-123). In Miklis the court said that particular circumstances had to be advanced before Article 3 could be invoked. Counsel commended the principles in Saadi at paragraphs 130 and 131 (see para [47] above).

[59] Counsel submitted that the House of Lords in Wellington was principally concerned with issues of sentence. It had been a majority decision on the "relativist" approach to Article 3 and in "Human Rights Law and Practice" at paragraph 4.3.38 referred to at para [57] above, the learned authors at footnote 4 noted "The potential ramifications of this important and controversial recent case are unclear." Counsel doubted whether the decision in Wellington was of general application and of any assistance in the present case.

[60] In conclusion counsel said that while the ECtHR in Orchowski (supra) had not ordered the applicant's release from prison it had ordered the Polish authorities to pay compensation by way of just satisfaction. That outcome appeared to conflict with the approach of the House of Lords in Wellington. Counsel submitted that the ECtHR continued to read Article 3 in an absolutist form. As a result there was an obligation on the United Kingdom, not on the Requesting State, to refrain from returning an extraditee where an Article 3 violation was likely. It was not a proper discharge of the obligations on the United Kingdom if it extradited an individual on the basis that he could seek compensation in the Requesting State for any Article 3 violations which occurred; such violations should be avoided in the first place. While extradition was based upon trust the mutual trust between states was a two-way street. The result was that there were two classes of prisoner, those already incarcerated who had access to domestic remedies and those involved in EAW proceedings. Those in the latter group could, in terms of the Council Framework Decision and decisions of the ECtHR expect if extradited that they would not be exposed to systemic violations of the Convention.

Discussion

[61] There is no doubt that in contrast to earlier cases in this context the court has in Orchowski a recent decision of the European Court and not merely the quotation of reports on a country's penal institutions which may be several years out of date. In other cases such as Miklis and Rozaitiene an expert had given evidence on Lithuanian prison conditions. I have to accept that an adjournment was sought on 2 December 2009 to explore the possibility of calling witnesses to speak about Polish prison conditions. Counsel was unable to give details of the type of evidence envisaged. In the event the case was adjourned until 9 December for the accused to consider whether to give evidence himself. He decided not to do so and no other witness was proffered.

[62] The accused perilled his case on the terms of the Orchowski judgment and the letter dated 1 December from the Regional Court in Bialystok. In Orchowski the ECtHR held that for most of the period between September 2003 until February 2009 the applicant had been held in overcrowded institutions. No complaint was made about the prison in which he was currently housed and there had been spells at some of the institutions complained of where there had been no overcrowding. None of the institutions referred to in Orchowski were referred to in the letter supplied by the Regional Court.

[63] Although the test in Miklis at paragraph 11 was criticised by counsel for the accused, it was referred to in Trajer at paragraph [9] of the court's decision and at paragraph [35] the court considered that what the accused had said about prison conditions in the Czech Republic did not displace the presumption that membership and participation in the EAW system would involve the requesting state ensuring compatibility with ECHR.

[64] It appeared to me that the test set out in Miklis at paragraph 11 was not incompatible with what the ECtHR had said in Mamatkulov at paragraphs 67 and 68 (see para [20] above) and the passages in Saadi referred to by counsel at para [47] above. Although Miklis had not been referred to in Wellington, the House of Lords' acceptance albeit by a majority of the "relativist" approach to what constitutes Article 3 inhuman and degrading treatment as opposed to the "absolutist" approach seems to point in the same direction.

[65] It was accepted that there had, in relation to Polish prison conditions been violations of Article 3 involving inhuman and degrading treatment due to overcrowding and that these violations had been systemic and frequent. What had not been established as was required by Miklis was the extent to which the accused could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse. No particular circumstances were pled in the accused's case that he was specifically vulnerable. The authorities quoted at para [53] above are clear that a distinction has to be drawn between a violation of Article 3 resulting from torture and those arising out of inhuman or degrading treatment. There seemed no question of court in another Category 1 territory declining to extradite an accused to Scotland on the strength of the Napier case alone. That case is now of some vintage and the circumstances arose out of the prevailing conditions at the time in some, but not all, Scottish penal institutions.

Decision

[66] The sole issue to be determined in this case both in terms of the 2003 Act procedure and the devolution minute was whether there would be a real risk of Article 3 ill-treatment if the accused was to be extradited. Having considered the cases referred to me from Soering to Orchowski it appears to me that the test described by Latham LJ in Miklis is the appropriate one to deploy on the circumstances of this case. No special circumstances were advanced sufficient for the Requesting State to offer an undertaking or for the Lord Advocate to seek one or indeed for the court to request it.

[67] While Orchowski described prolonged and systemic overcrowding of prisons in Poland no evidence was produced to establish there were substantial grounds for believing that there would be a real risk to the accused of Article 3 ill-treatment. There had been a number of complaints and the Polish Courts had developed procedures for dealing with such cases. It was clear from Orchowski efforts were being made by the authorities in Poland to alleviate matters. In addition the court could rely upon the presumption stated in Trajer at paragraph [35]. The letter produced from the Regional Court in Bialystok did not displace that presumption in anyway.

[68] In terms of the "relativist" approach laid down by the House of Lords in Wellington it did appear from the facts set out in Orchowski that steps continued to be taken by the Polish authorities to reduce overcrowding. The situation appeared to fluctuate in some Polish prisons between overcrowding and meeting reasonable standards and other prisons did not seem to be overcrowded. The court could expect Poland to honour the terms of the Council Framework Decision. Non-compliance with the Convention in the case of an extradited prisoner would inevitably lay the state in question open to severe sanctions including perhaps having to release the prisoner concerned.

[69] Accordingly I am satisfied that there are no substantial grounds for a belief that there is any real risk of the accused's Article 3 rights being violated by prison conditions. I answer the question raised in section 21 (1) of the 2003 Act in the affirmative and in terms of section 21 (3) of the Act I order Adam Kropiwnicki's extradition to Poland on the European Arrest Warrants issued by the Polish authorities on 14 March 2008 and 22 September 2009. In light of this decision I dismiss the Devolution Minute which was lodged on 26 November 2009 as the matters raised in it are the same as those advanced in connection with section 21(1) of the 2003 Act.