Scottish Sheriff Court Decisions

Court reference 2B145/10

 

IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH

 

UNDER THE EXTRADITION ACT 2003

 

REPUBLIC OF POLAND v DARIUSZ MACHON (date of birth 23/02/66) Prisoner in HM Prison Saughton, Edinburgh

 

Act Ms. K Nicol Crown Office International Unit for the District Court in Lublin, Poland

Alt Mr. Sheldon, Advocate instructed by Ms.C. Beattie of Capital Defence Lawyers, Edinburgh

 

Edinburgh 9^th July 2010

 

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

 

NOTE

Introduction

[1] This case arises out of a European Arrest Warrant which was issued by the District Court in Lublin, Poland in respect of the accused. The EAW was granted on 5^th February 2008 and concerned a charge of stealing Mercedes cars. Extradition was opposed on the basis that Polish prisons remained poor and if returned to Poland to serve the sentence of imprisonment which had been imposed the accused's Article 3 rights would be violated. The warrant alleged that the accused had been sentenced to 2 years 8 months' imprisonment and there was a sentence of 1 year, 3 months and 8 days outstanding.

 

Procedural History

[2] The case first called at Edinburgh Sheriff Court on 3 February 2010. The accused accepted that he was the person named in the warrant but did not consent to extradition and preliminary and full hearings were fixed. Bail was refused as the accused was considered to be a flight risk.

 

[3]] At the Preliminary Hearing on 11 February a motion to adjourn the Full Hearing set for 19 February was refused. A further Preliminary Hearing was assigned for 16 February to allow parties to make further enquiries. A motion for bail was again refused.

 

[4] On 16 February Mr. Sheldon appeared for the first time and moved to discharge the Full Hearing fixed for 19 February. The motion was opposed but granted and a fresh diet fixed for 4 March 2010. Bail was again applied for but refused.

 

[5] At the Full Hearing on 4 March a defence motion to adjourn was not opposed and new dates for the case were fixed. This was to allow time to carry out further investigations. The accused was remanded in custody there being no application for bail.

 

[6] At the next calling of the case on 18 March I presided for the first time. The hearing was continued to 30 March and there was no application for bail. On 30 March I was advised by counsel that further enquiries were ongoing into the areas of dispute and sanction was being sought from SLAB. I adjourned the hearing until 14 April and after hearing parties refused bail.

 

[7] On 14 April the Full Hearing was again adjourned to 6 May and bail was refused. I again presided on 6 May when I refused to admit a Devolution minute and proceeded to deal with the case in terms of section 10 of the Extradition Act 2003. The accused began to give evidence in relation to section 21 of the 2003 Act. The Hearing was adjourned before his evidence in chief was completed due to lack of court time and the need to produce documents which were in his possession at prison. The case was continued to 25 May and the accused was remanded in custody there being no application for bail.

 

[8] On 25 May 2010 the Lord Advocate objected to the production of letters which the accused wished to speak to in evidence which he claimed were received from friends who were currently incarcerated in Polish prisons. After hearing parties I allowed the letters to be admitted in evidence and continued the case to 25 June to allow the Lord Advocate to consider her position and make further enquiries. I considered a renewed request for bail but refused to admit the accused to bail and he was remanded in custody until 25 June.

 

[9] At the Hearing on 25 June 2010 the accused concluded his evidence in chief and was cross examined. After hearing lengthy submissions from parties I made avizandum and continued the case until 9 July. I again considered a request for bail at this time but refused to admit the accused to bail and he was remanded in custody.

 

Issues raised at the Extradition Hearing

 

[10] At the Hearing on 6 May 2010 Counsel for the accused sought to lodge Devolution Minute in light of the decisions of the Appeal Court issued on 4 May in the cases of Kropiwnicki v H M Advocate [2010] HCJAC 41 and Engler v H M Advocate [2010] HCJAC 42 This motion was opposed by the Lord Advocate. The Minute narrated that sanction for legal aid, to investigate the conditions of specific prisons in Poland that the accused might be sent to if extradited, had been refused. Efforts to secure up-to date evidence by other means in Poland had been unsuccessful. It appeared that an appeal against the refusal of legal aid had been unsuccessful on 12 April. Counsel could not explain satisfactorily why a Devolution Minute had not been lodged when the case called previously on 14 April. Counsel accepted that it had been open to seek a judicial review of SLAB's decision but had chosen not to follow this course as other avenues for securing evidence had been attempted. Contacts with Polish solicitors had ceased abruptly presumably when it became clear funding for work in this context was not available.

 

[11] Counsel's submission was that the refusal of legal aid to conduct enquiries into current and likely future Polish prison conditions and the limited general information available on prison overcrowding rates there meant that there was an inequality of arms.

 

[12] Ms Nicol argued that the Devolution Minute should not be admitted as there was no good reason for it to be received at this time which would involve further adjourning the proceedings. I was referred to McAllister and others v H M Advocate Appeal Court 11 December 2009. Paragraph 7 confirms the test to be applied is that set out in Transo Plc v H M Advocate 2004 SC (J) 29; Lord Hamilton at para [44]. To succeed on this point the accused would need to show that "proceedings would necessarily bring about a breach" of Convention rights, or "would inevitably result in the proceedings as a whole being unfair". The accused would have to "demonstrate this is one of those rare and isolated cases." Reference was also made to paragraph 9 where the Court stated there was "no general entitlement to further or additional assistance to satisfy the principle of equality of arms.

 

[13] I was then referred to Baranauskas v Ministry of Justice of the Republic of Lithuania [2009] EWHC 1859 (Admin). In paragraph 11 Mr. Justice Silber noted that the appellant in that case had made two unsuccessful applications for legal aid funding and concluded there was "no basis for believing that another application would succeed". Ms. Nicol submitted the circumstances were identical to the present case.

 

[14] I took the view that the accused had had sufficient time to seek legal aid funding and I considered allowing a Devolution Minute to be received at this stage would only delay proceedings. I considered the accused's rights were adequately protected by section 21 and since the Hearing could not be concluded on 6 May there was further time to prepare the case. It was clear from other cases that a Devolution Minute could be submitted at a later stage on another basis if necessary.

 

[15] Accordingly I refused to admit the Devolution Minute in terms of Rule 40.5 of the Act of Adjournal and ordered the Hearing to proceed. I was reminded by Ms Nicol that the accused had accepted at the initial hearing on 3 February that he was the person named in the warrant however he did not consent to extradition. Accordingly I required to consider the terms of section 10 of the 2003 Act.

 

[16] The European Arrest Warrant was in respect of a single charge of contravening articles 291, 294 and 12 of the Polish Penal Code by acting with others between August 1993 and January 1994 in Lublin and other towns in Poland and Germany to steal 8 Mercedes limousines. In terms of section 65(3) of the 2003 Act the offence charged was of a type known to the law of Scotland and had involved the imposition of a sentence in excess of 3 months' imprisonment, namely 2 years and 8 months' imprisonment imposed in January 2006 by the Regional Court in Lublin of which sentence 1 year, 3 months and 8 days remained to be served.

 

[17] It was accepted that the warrant fell within the terms of section 10 of the 2003 Act. I moved on to consider section 11 of the 2003 Act but counsel indicated that there were no bars to extradition and accordingly I moved on to consider section 20 of the 2003 Act. A letter dated 11 February 2010 from the Circuit Court in Lublin was produced which explained the chronology of the case in Poland. The accused was detained prior to trial from 21 December 1994. An indictment called on 21 March 1995. The case proceeded and the accused was released from custody on 8 May 1996. The accused was released on bail with a condition prohibiting leaving Poland and the accused's passport was seized. Judgment in the case was issued on 26 March 1998 but this was appealed by the accused. This appeal was successful and the case was referred back by the appeal court for further procedure. The accused's case was dealt with separately from those of his former co-accused. The accused was present during this trial. On 27 December the accused was informed of the date judgment would be issued but failed to appear on 3 January 2006. No appeal was lodged and this judgment became finalised on 30 January 2006. A sentence of two year 8 months had been imposed and from this was deducted the period of actual detention served from 19 December 1994 to 8 May 1996. As is customary in Poland the accused was ordered to present himself at a later date to serve the balance of the sentence in February 2006. The authorities were unable to contact the accused and concluded in July 2006 the accused had left the country. On the basis of this unchallenged information I concluded in the affirmative that the accused had been convicted in his presence and answered the question posed in section 20(1) of the 2003 Act in the affirmative and proceeded to section 21of the Act.

 

[18] I then commenced to hear evidence from the accused to decide whether extradition would be compatible with the accused's Convention rights under ECHR in terms of section 21 of the 2003 Act. I found the following facts admitted or proved:-

 

(i) The accused is 44 years of age and at the time of his arrest on the present proceedings had been living at 106 Kelso Drive East Kilbride and had been in employment through an agency.

(ii) The accused had been arrested on the charge contained in the EAW by the Polish authorities in December 1994 and remanded in custody for his trial until May 1996. During that time he spent 1 year 8 months in custody.

 

(iii) The accused had been in custody for part of the trial process but was released on bail in 1996 and the case concluded in 1997 or 1998 when the accused was sentenced to 2 years 8 months' imprisonment. Bail conditions included police supervision, a ban on leaving Poland and seizure of his passport.

 

(iv)The accused appealed against his conviction but eventually an agreement was reached with the Polish prosecutor that the accused would plead guilty to certain of the charges in exchange for a lesser sentence of which 1 year 3 months and 8 days remained to be served

 

(v) The case was concluded in Poland in January 2006 after which the accused left Poland and came to the United Kingdom. The accused was ordered to appear at prison to serve the outstanding balance of sentence on 24 February 2006. A domestic warrant was issued on 8 March 2008 and the EAW was sought on 5 February 2008 when it became apparent the accused was abroad.

 

(vi)During the period on remand in Poland the accused was incarcerated in the prison at Lublin. The accused had last been a prisoner in Poland in 1998.

 

(vii) While on remand for the present charge the accused had shared a cell with Krzysztof Rafinski who had also been the subject of an EAW and had consented to deportation on 31 March 2010. Rafinski sent a letter to the accused in April 2010 from a prison in the Warsaw area of Poland saying that Polish prison conditions had not changed in the last 10 years and that jail in Scotland was like a hotel compared to the drunk cell/ Third World in a Polish prison.

 

(viii) The accused wrote a letter to a friend he knew called Slawomir Dybala who is currently serving a sentence of imprisonment in Opole Lubelskie in Poland and he received a reply dated 23 May 2010. This prison is in the Lublin District and the writer complained about conditions there and in Grochow Investigative Unit. Mr. Dybala had been extradited from England back to Poland about 18 months ago to serve a lengthy sentence.

 

(ix) The complaints related to prison overcrowding, dirty cells, the presence of vermin, lack of hot water, infestation by insects, lack of fresh air, ventilation, washing, cleaning, exercise and medical facilities. In addition reference was made to inmates being regularly transferred from prison to prison.

 

(x) If the accused was to be extradited he would be returned to serve his sentence either in Opole Lubelskie or Zamość prisons of Hrubieszów, a semi-open prison. The accused might be detained in the detention centre at Warsaw-Bialolęka for a month or two until being transferred to one of the prisons previously mentioned.

 

(xi) The accused does not face a real risk of his Article 3 Convention rights being violated if extradited to Poland in view of the EAW Framework arrangements and the assurances given by the Requesting State.

 

Submissions on Behalf of the Accused

 

[19] Counsel for the accused moved the court to discharge the accused from the proceedings on the basis of the accused's evidence supplemented by the letters which showed that Polish prison conditions were still not Article 3 compliant. The evidence which had been adduced was not simply about prison overcrowding which still seemed to be taking place but other prison conditions of the type complained about in Orchowski v Poland Grand Chamber 22 October 2009 see paragraphs 123 to 133 in particular the "other elements" of prison conditions other than overcrowding listed at para 132 and "too frequent transfers" of detainees which the Court found established at para 133.

 

[20] While the Court in Orchowski had not been critical of the "other elements" the court had heard evidence in the present case of the lack of hot water for prisoners and the infestation of cells, the lack of adequate ventilation and lack of proper medical care for prisoners.

 

[21] Counsel referred to the recent decisions of the Appeal Court in Kropiwnicki v H M Advocate [2010] HCJAC 41 and Engler v H M Advocate [2010] HCJAC 42 and accepted that it was not sufficient to oppose extradition under section 21 of the 2003 Act solely on the authority of the decision in Orchowski (supra) see Kropiwnicki at paras [12] to [17]. Evidence had to be produced giving "substantial grounds to think that there is a real risk that the [accused], if returned to Poland, will be detained in conditions that will violate his article 3 rights"- Kropiwnicki para [17].

[22] Efforts had been made to obtain a proper statement from Slawomir Dybala but the legal aid board had refused to sanction this. Counsel said also that his instructing agents had lost contact with Polish solicitors tasked to assist in this connection. This was presumably on the basis that those solicitors had realised funding was not in place for the exercise but since their communications had abruptly stopped he was not in a position to provide a reason.

 

[23] Ms Nicol on behalf of the Lord Advocate had opposed the admission of the prison letters into evidence but since it was the only way the accused could articulate his objections to extradition I allowed the letters to be admitted in evidence. While procedurally and technically it would be possible to adduce evidence by live video link the nature of the present proceedings being summary and based on the European Framework Decision of 13 June 2002 (2002/584/JHA) it seemed appropriate to admit the letters. I noted also the wide terms of section 202(2) and (5) of the 2003 Act to admit documents. While this provision is principally aimed at official documents emanating from the organs of a requesting state it must be applicable to the accused person and could comprehend letters which had been sent from a prison and bore marks of having been censored by Polish officials.

 

[24] Counsel for the accused quoted Sanchez-Reisse v Switzerland ECtHR 21 October 2006 at paragraph 51 where the Court had considered in terms of Article 5-4 of ECHR that the appellant required to be provided "in some way or another, with the benefit of an adversarial procedure". I t was submitted that in the present case due to the refusal of legal aid sanction to carry out enquiries to assist in the accused's objections to extradition his Convention rights had been violated. I was then referred to Yvon v France ECtHR 24 April 2003 the Court had considered the principle of equality of arms at paragraphs 29-37. I was directed to paragraph 31 of that judgment where the Court described this principle in the broader concept of a fair trial:-

"It requires "a fair balance between the parties": each party must be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis à vis his opponent".

 

[25] I was then directed to the section on Article 5(4) Rights in Human Rights in Practice edited by Lord Lester of Herne Hill QC, Lord Pannick and Javan Herberg 3^rd Edition at paras 7.60 and 7.61

"Article 5(4) requires that a detained person has the right to challenge his detention before a court according to a procedure that is fair. The European Court has held that the reference to a "court" in Article 5(4) guarantees certain procedural rights for the defendant. Where the conduct relied on as justifying detention is criminal in nature (in that it could give rise to criminal charges) the procedural guarantees should not be markedly inferior to those under Article 6. The procedure adopted must ensure equal treatment between the parties and that it must be "truly adversarial" which requires, where necessary, disclosure of relevant documents. The defendant must have the opportunity to take legal advice prior to the hearing and representation at it where this is necessary to make the hearing effective. The defendant must also be given time and facilities for the preparation of his case and the time must not be so short as to restrict the tangibility and availability of the remedy.

 

These principles mean that a defendant in extradition proceedings must have a reasonable opportunity of presenting his case to the court under conditions "which do not place him at a substantial disadvantage vis à vis his opponent."

Counsel submitted that in the present case the accused was unable to gather and produce the evidence that he considered was available in Poland and would assist him.

 

Submissions on behalf of the Lord Advocate

 

[26] Ms Nicol began by referring to the recent Appeal Court decisions in Kropiwnicki and Engler (supra) where the Court had indicated that simple reliance on the decision in Orchowski v Poland could form a basis for opposing extradition.

 

[27] I was referred to the well-known passage in Trajer v Lord Advocate [2008] HCJAC 75; 2009 JC 108 at para [35]:-

"At one point in the course of his submissions, counsel for the appellant invited us to consider the contents of the appellant's affidavit on the subject of prison conditions in the Czech Republic. Having had the opportunity to consider the terms of that affidavit, we do not consider that what is said there 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."

It was submitted that the two letters produced in evidence were not enough to displace the presumption that extradition under the EAW system is compatible with the accused's Convention rights.

 

[28] Ms Nicol said that the first letter that was produced by the accused from his former cell mate Krzysztof Rafinski did not advance the accused's case as the writer had merely likened Scottish prison conditions to a hotel and those in Poland to a drunk cell or something from the Third World. No specific detail was provided that suggested there were substantial grounds for believing that there was a real risk of the accused facing treatment incompatible with Article 3 should he be extradited to serve the outstanding sentence.

 

[29] In that context I was referred to the test set out in Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin) by Lord Justice Latham when defining a "real risk of ill-treatment" under Article 3. At paragraph 11 his Lordship said:-

"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." His Lordship continued at the end of that paragraph:-

"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 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 be either responsible for it, or be unable or unwilling to provide him protection from it."

 

[30] I was referred to a similar passage in Baranauskas v Ministry of Justice of the Republic of Lithuania (supra) at para 11:-

"Council of Europe countries should be assumed to act fairly. Lord Brown, giving the judgment of the Judicial Committee of the Privy Council in Gomes v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 explained at paragraph 35:

"Council of Europe countries in our view present no problem. All are subject to Article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial - whether by an abuse of process jurisdiction like ours or in some other way."

We consider that, by analogy, those countries that are signatories to the Convention would be assumed to be capable of protecting the rights of people in their country."

It was Ms Nicol's submission that the letters tendered in evidence by the accused did not interfere with that assumption.

 

[31] I was also referred to R (Ullah) v Special Adjudicator; Do v Immigration Appeal Tribunal [2004] UKHL 26; [2004] 2 A C 323 and the speech of Lord Bingham of Cornhill at paragraph 24:-

"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, 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"

It was submitted that the evidence produced by the accused did not amount to "a very strong case" or that the accused would face a real risk of his Article 3 rights being violated.

 

[32] As regards the criticisms of Polish prison conditions measures had been undertaken by the Polish authorities since the highest rates of overcrowding had occurred in November 2006- see Orchowski v Poland (supra) at paragraphs 89-91. Since that decision in October of last year new laws had been brought into force in December 2009 to reduce overcrowding to a minimum-see the Act of 9 October 2009 amending the Polish Executive Penal Code designed to provide prisoners where possible with at least 3m² floor space each and Regulation 1564 of the Polish Minister of Justice of 25 November 2009 setting out the procedures to follow where prison capacity is exceeded so that the position can be monitored at the highest level and action taken to re-distribute prisoners and avoid breaching capacity levels.

 

[33] I was then referred to Saadi v Italy a Grand Chamber decision of 28 February 2008 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"

and at paragraph 135:-

".  In order for a punishment or treatment associated with it to be "inhuman" or "degrading", the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment".

In the present case the most the letters had raised was the" mere possibility" of a breach of Article 3 and that was not sufficient and nor had the evidence gone beyond the suffering that would inevitably occur in every case where extradition to serve a term imprisonment arose.

 

[34] Ms Nicol turned to the second letter which had been sent to the accused by Slawomir Dybala who had been extradited from England back to Poland. While it contained detail of prison conditions, the first page referred to Grochow where Mr. Dybala had been incarcerated prior to August of last year since when there had been improvements in the Polish prison system following steps take to monitor number and reduce overcrowding.

 

[35] Reference was made to a report which had been produced in April 2010 by two Polish academics Kloc and Borek on Polish prison conditions for use in a recent case. At page 14 of that report the quality of food provided and the level of hygiene in Goleniów prison were the subject of favourable comment. This suggested that conditions in Polish prisons might vary but were not poor in all such institutions.

 

[36] Ms Nicol submitted that the second letter did not provide information that the accused would face a real risk of Article 3 violations if extradited. It was speculation to suggest that the accused might be sent to the particular prisons mentioned in the letter. Reference was made to Kropiwnicki v H M Advocate (supra) at para [14] where the Lord Justice Clerk said:-

"In my opinion, the findings in fact and the decision in Orchowski are not conclusive in other appeals of this kind. If they were, it would never be possible for the courts of any Convention country to extradite fugitives to Poland, whatever their individual circumstances."

In the present case only general allegations had been made and the information did not amount to a real risk in the case of the accused.

 

[37] I was next referred to Tabaczynski v Regional Court of Bydgoszcz III Penal Division [2009] EWHC 3462 (Admin) and the remarks made by Lord Justice may at paragraph 38:-

"As to matters relating to prison conditions in Poland, there is the expert's report, a selection of internet print-outs whose origin and authorship is unclear and a US State Department Human Rights Country Report on Poland. These are general and so obviously not specific to the appellant."

It was submitted that in the present case the letter was at best no more than a report in general terms about past conditions in prisons that the accused might not be sent to."

 

[38] In relation to the opposition to extradition under Article 5(4). I was referred to the test set down in McAllister and others v H M Advocate (supra) at para [7]. It was a high test to be met and at para [9] the Court had concluded there was "no general entitlement to further or additional assistance to satisfy the principle of equality of arms."

 

[39] In Buchanan v McLean 2001 SCCR 475 in the speech of Lord Hope of Craighead at paragraph 40 he said:-

"At first sight there is bound to be some measure of inequality of arms as between the prosecutor, who has all the resources of the State at his disposal, and an accused who has to make do with the services that are available by way of criminal legal aid. But in M V United Kingdom the Commission recognised that financial restraints may be necessary to ensure the most cost-effective use of the funds available for legal aid. It can be assumed that, as the Procurator Fiscal Service is funded by public money, there are pressures on that side also to ensure cost-effectiveness. What has to be demonstrated is that the prosecutor in this case will enjoy some particular advantage that is not available to the defence or that would otherwise be unfair."

It was submitted that there was no such inequality of arms in the present case.

 

[40] After the previous hearing of this case on 25 May Ms Nicol had written to the requesting court about the issues raised in the Rafinski letter. The Court's reply dated 8^th June 2010 was that the requesting state "abides by the rights included in the European Convention of Human Rights [and] there is no basis to claim those rights will not be observed in reference to his person after the surrender...to Poland."

 

[41] I was next referred to Nikolova v Bulgaria (2001) 31 EHRR 3 at paragraph 58:-

"A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure "equality of arms" between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client's detention. In the case of a person whose detention falls within the ambit of Article 5(1)(c), a hearing is required."

It was submitted that in the present case the Lord Advocate had taken steps to secure information and make it available.

 

[42] I was then referred to Galstyan v Armenia (2010) 50 EHRR 25 at paragraph 51:-

"The Court recalls that, while art.5(4) obliges the contracting states to make available a right of recourse to a court when the decision depriving a person of his liberty is one taken by an administrative body, there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. Where a sentence of imprisonment is pronounced after a "conviction by a competent court", the supervision required by art.5 (4) is incorporated in the decision." (See also De Wilde v Belgium (1979-1980) 1 E.H.R.R. 373 at para [76]

It was Ms Nicol's submission that at this stage of matters where the accused had been sentenced Article 5(4) did not apply.

 

[43] Reference was also made to Niescier v Circuit Court of Legnica III Criminal Department, Poland [2007] EWHC 2367 (Admin) Lord Justice Sedley at paragraph 12:-

"Before us today Mr. Common has submitted that this is still an Article 5(4) case; that is to say, a case raising an issue of ability to challenge by legal proceedings the lawfulness of a detention. He relies on the case of Weeks v United Kingdom [1987] 10 EHRR 293 for the proposition that recall to prison is a material loss of liberty for Article 5(4) purposes. This may or may not be right. My Lord has indicated reasons for doubting it. But accepting that it is so for the purposes of the present argument, it still seems to me that there is no ostensible or presumptive violation of it in what the Polish request as amplified now recites and we are required to accept as it stands. I have indicated what this is. It seems to me that there is no manifest want of due process either in what has happened so far according to the Polish court or in what may now happen upon the appellant's return. If it turns out that some violation of human rights does, nevertheless, occur within the Polish jurisdiction, then there is a remedy, albeit a very distant one, either in the Polish courts or ultimately in Strasbourg; but that is not what the section 21 power is concerned with."

It was submitted that this case again suggested there could be no breach of Article 5(4) at this post conviction stage of the process.

 

[44] Ms Nicol concluded by submitting that the prison letters did not provide sufficient evidence of a real risk of a violation of the accused's Article 3 rights if extradited.

 

 

 

Reply on Behalf of the Accused

[45] Counsel stated that despite various enquiries it had not been possible to identify the prison the accused would be sent to if extradited and accordingly it was impossible to secure clear information about the conditions the accused might face.

 

[46] The Lord Advocate had provided the latest monthly statistics available for the Polish prison system namely Ministry of Justice figures for February 2010. These figures were general ones and concentrated simply on prison numbers. They were no indicator of the quality of overall prison conditions and gave no information about the areas of criticism contained in the second letter.

 

[47] Orchowski v Poland (supra) at paragraph 85 gave the background to overcrowding in Polish prisons and how the authorities had designated a statutory minimum space for each prisoner of 3m² per prisoner. Paragraph 86 highlighted that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) said in 2006 strenuous efforts were being made in Poland to reduce occupancy rates with a target of 4m² of living space per prisoner but this would appear to have been shelved. The new laws brought into force were designed to try to achieve 3m² per prisoner but it seemed that the Polish authorities were regressing rather than improving prison conditions.

 

[48] The Kloc and Borek Report which had been produced by the Lord Advocate had in fact been compiled for an accused in another case and did not deal with any of the prisons the accused might be sent to complete his sentence. SLAB had declined to sanction a similar report in the present case. The Kloc report was in fact a desk top exercise and ideally a more detailed report on the specific prison an individual might be sent to could provide the information about the likely conditions if extradited to serve a sentence.

 

[49] The letter from the Requesting Court dated 20 May 2010 gave details of the institutions the accused might be sent to if extradited. On a comparison with the Ministry of Justice figures for February 2010 it appeared that two out of the three possible institutions the accused might be sent to were noted as holding more prisoners that the system allowed.

 

Decision

 

[50] Although Extradition Act proceedings following summary criminal procedure there are exceptions written into the 2003 Act. An accused who does not consent to extradition cannot simply put the Lord Advocate proof and in terms of Miklis (supra) requires to lead a positive defence. Section 206 of the 2003 Act provides special rules dealing with the burden and standard of proof. Notwithstanding the provisions of section 202 of the Act designed to facilitate the admission of evidence there are likely to be geographic, language and practical issues which may militate against the availability of such evidence.

 

[51] In terms of Miklis (supra) at paragraph 11 the accused needs to show good reasons why an EAW ought not to be enforced. If legal aid is not forthcoming then an appeal and possible judicial review are avenues that are available. In the present case attempts to secure information along certain lines of inquiry failed due to lack of funding and the abrupt ending of contact by Polish lawyers. I was not in a position to request that SLAB reconsider their decision. I note the decision taken by the Court of Appeal in England when faced with information about repeated refusals of legal aid-see Baranauskas (supra) at paragraph 11-which I have quoted at para [13] above. I did note that the accused had been granted four adjournments over several months and given the summary nature of these proceedings and that the accused was in custody I decided to proceed with the Hearing. In the event the case called several times thereafter the opportunity arose for the accused to make additional enquiries during that time and he was able to produce a more detailed letter for consideration by the court.

 

[52]Despite opposition on behalf of the Lord Advocate I considered the appropriate course was to proceed with the Hearing since a number of adjournments had been granted previously. The accused was able to speak to the documents and articulate his objections to extradition. He was also open to cross examination. This was a much more satisfactory way of considering matters than when the Court received an affidavit at the last minute in the Trajer case-see para [27] above.

 

[53] The first letter tendered in evidence was a brief document and made general assertions about the respective qualities of prison regimes in Scotland or Poland. Although aspertions were cast about the poor quality of Polish prisons the letter lacked any detail and does not assist the accused's opposition to extradition. The second letter is more detailed and gives information about the conditions of some prisons over a period of time. It is clear however from Orchowski (supra) and the recent changes in Polish law that efforts have been made to ensure compliance with ECHR.

 

[54] The accused was able to assert his case in an adversarial process. Some additional information was obtained from the Polish authorities in light of the evidence adduced and in other respects the Requesting State was unable or unwilling to assist further. They did re-iterate that Convention rights would be complied with in this particular case if the accused was to be extradited.

 

[55] In all the circumstances I do not consider the accused the accused has produced substantial grounds that he faces a real risk that his Article 3 rights would be violated by Polish prison conditions if extradited. Accordingly I order the accused's extradition to Poland in terms of the European Arrest Warrant dated 5 February 2008 from the District Court in Lublin, Poland.