Scottish Sheriff Court Decisions

Court reference 2B1379/09

 

IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH

 

UNDER THE EXTRADITION ACT 2003

 

POLAND v MARCIN OSINSKI (date of birth 22/11/85 ) Prisoner in HM Prison Saughton, Edinburgh

 

Act Mr. V Lunny Crown Office International Unit for the Regional Court of Piotrkow Tybunalski, Poland

Alt Mr. Govier Advocate instructed by Mr. Good of Messrs. Good + Stewart, Solicitors, Edinburgh

 

Edinburgh 23^rd February 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 Marcin Osinski, Prisoner in HM Prison Saughton, Edinburgh answers in the AFFIRMATIVE the question in section 21(1) of said Act, finds that the Lord Advocate is not acting in a manner incompatible with said Marcin Osinski's Convention rights under Article 3, refuses the Devolution Minute and orders in terms of section 21(3) of the said Act, that the said Marcin Osinski be extradited to Poland conform to the warrant of even date.

 

 

NOTE

Introduction

[1] This case involves a European Arrest Warrant which was issued by the Polish authorities in respect of the accused. The EAW was issued on 10^th August 2009 and concerned a charge of opening lockfast places with intent to steal. Extradition was opposed on the basis that overcrowding was systemic in Polish prisons and if returned to Poland to serve the sentence of imprisonment which had been imposed the accused's Article 3 rights would be violated. A Devolution Minute was lodged in similar terms.

 

Procedural History

[2] The case first called at Edinburgh Sheriff Court on 23 November 2009. A Notional Hearing was fixed for 2 December to allow time for further investigation into Scottish criminal matters which might be pending involving the accused and bail was refused. On 2 December a Preliminary Hearing was assigned for 9 December and a Full Hearing was fixed for 15 December and the accused was admitted to bail. On 9 December the case was duly continued to 15 December but on that date the accused failed to appear and a warrant was granted for the arrest of the accused. The accused however re-appeared on 18 December 2009 and new Preliminary and Full Hearing dates were fixed for 12 January and 10 February 2010 respectively and the accused's bail order was continued.

 

[3] On 12 January 2010 the accused again failed to appear and the case was continued until 18 January for the accused to appear personally. A request for an arrest warrant made by the Prosecutor was continued meantime. On 18 January the accused appeared and was granted bail to his current address at 18/4 Wester Hailes Park, Edinburgh and a further Preliminary Hearing was fixed for 8 February.

 

[4] On 8 February the case was continued to the Full Hearing previously fixed for 10 February on joint motion and following the Prosecutor's motion the accused's bail was withdrawn by me and he was remanded in custody as it appeared he had been charged with a criminal offence in Scotland while on bail for these proceedings. A Devolution Minute was lodged with the court on 9 February. No appearance was entered by the Advocate General.

 

[5] On 10 February 2010 a request from the accused for a further adjournment was refused and the Full Hearing commenced. Evidence was heard from the accused in connection with section 11 of the Extradition Act 2003. Due to the lateness of the hour the case was adjourned until 12 February at 2pm for the Full Hearing to conclude. Parties were heard in respect of section 21 of the 2003 Act and the case was adjourned at 6pm on that date until 23 February in order that I might consider my decision. Bail which had been withdrawn on 8 February continued to be refused and the accused was remanded in custody.

 

 

Procedure at the Extradition Hearing

 

[6] At the initial calling of the case on 23 November 2009, the accused confirmed that he was the person named in the warrant and having read the contents of the warrant did not consent to extradition. The question posed at section 7(2) of the 2003 Act was answered in the affirmative and accordingly the hearing commenced at a consideration of section 10 of the 2003 Act.

 

[7] The European Arrest Warrant was in respect of a charge of contravening section 278§1 of the Polish Penal Code said to have been committed on 25 April 2004 at Belchatów, Poland. Although the charge is not one listed as a framework offence, it is punishable by a maximum of three years' imprisonment in Poland and the accused had apparently been sentenced to one years' imprisonment by the District Court at Belchatów on 20 September 2004. The offence was committed in Poland and the crime charged is also an offence in Scotland which would be libelled as opening lockfast places with intent to steal therefrom. Accordingly it was submitted that section 65(3) of the 2003 Act applied. There was agreement that the offence was indeed an extradition offence and so I answered the question posed in section 10(2) of the 2003 Act in the affirmative.

 

Was there any bar to extradition?

 

[8] I proceeded in terms of section 10(4) to section 11 of the 2003 Act to consider whether there were any bars to extradition. The accused's position was that the terms of the EAW were incorrect in that the sentence of one year's imprisonment said to have been imposed on 20 Septembe r 2004 had in fact been a sentence of two years' imprisonment suspended for five years. The accused had tried through relatives to obtain a copy of the relevant court record but had been unable to do so and sought further time for this purpose. I refused this motion in light of the history of the case and the numerous adjournments that had been granted previously. It appeared that the accused had raised the matter with his solicitors only on 22 January 2010.

 

[9] The Prosecutor relied on the terms of the EAW and in addition in terms of section 202(2) and (5) of the 2003 Act produced an e mail dated 10 February which he had obtained from his Polish EUROJUST colleague confirming that in respect of the EAW offence, court reference II K 392/04, the accused was sentenced to one year's imprisonment which initially was suspended but the court ordered the prison sentence to be served on 13 September 2005. In response the accused was called by the defence to give evidence on this point which was maintained amounted to a bar to extradition on the ground of speciality in terms of section 11(f) of the 2003 Act.

 

[10] The accused's evidence was that when he was living in Poland in 2004 he was charged by the police with the offence contained in the EAW of breaking into a pizzeria and stealing or attempting to steal garden furniture. Earlier in June 2003 he had been convicted of a charge of theft by shoplifting and had received a sentence of one year's imprisonment suspended for four years. His understanding was that he received a sentence of two years' imprisonment suspended for five years for the present offence after pleading guilty.

 

[11] Mr. Osinski said that he had read the EAW only briefly when he was arrested in November 2009 and it was only in January this year when seen by his solicitors that he read its terms more closely and saw the sentence specified in the warrant was incorrect. In cross examination Mr. Osinski said that he had been convicted of a third offence in Poland in October 2005 but could not remember what sentence he received. He left Poland shortly afterwards and came to live in the United Kingdom in November 2005.

 

[12] Mr. Osinski said that occasionally he had been in trouble in Poland as a result of binge drinking with friends. When he came to the United Kingdom his drink problem became more serious but none the less he had a clear recollection of the present case and was sure he had been sentenced to a two year suspended sentence rather than a sentence of one year's imprisonment.

 

[13] I found the accused's evidence unreliable. While it is difficult to remember certain dates and facts after a period of years it was clear on his own testimony that he had breached the terms of any suspended sentence that had initially been imposed for the EAW offence. (This position was confirmed by the e mail produced by the Prosecutor). On the accused's own testimony he might be at risk of facing a two year sentence of imprisonment in light of the further conviction he admitted to. The terms of the EAW were clear that a one year sentence fell to be served for the offence. The accused's position changed between examination in chief and cross examination and I did not consider it raised a reasonable doubt in the face of the information contained in the EAW and supporting e mail. I might have hesitated had the position been reversed and the accused was maintaining a lesser sentence stood to be served. It was clear on his testimony after cross examination that the present sentence had initially been suspended and the subsequent conviction had rendered it live. It seemed clear the accused had then left Poland to escape being imprisoned for the first time.

 

[14] Accordingly I did not consider that the accused's extradition was barred by reason of speciality. The present EAW was the only proceedings before me and although in terms of the accused's evidence, if reliable, there might be other warrants outstanding in Poland the only request made by the Polish authorities was the one contained in the EAW and there seemed no reason why, if any other such warrant was outstanding it could not have been contained in the EAW or made the subject of a separate EAW for consideration at the same time. If the accused's extradition was to be ordered it could only be in respect of the EAW offence before this court. I therefore answered the question posed in section 11(1) of the 2003 Act in the negative and in terms of subsection 11(4) moved on to section 20 of the 2003 Act.

 

[15] It was a matter of agreement that the accused had been present in court when the EAW offence had been dealt with. It was also a matter of agreement that the sentence of imprisonment imposed initially had been suspended. The accused had admitted being convicted for a subsequent offence within the period the sentence had been suspended and admitted leaving Poland thereafter without waiting for a letter summoning him to serve that sentence. I therefore answered the question posed in section 20(1) of the 2003 Act in the affirmative and moved on to consider section 21 of the Act.

 

Whether extradition would be compatible with the accused's Convention Rights

 

[16] At the continued hearing on 12 February the Prosecutor produced in terms of section 202 (2) and (5) of the 2003 Act the translation of a letter dated 26 January 2010 received from the judge at Piotrkow Trybunalski who had signed the EAW. The latter indicated that if extradited the accused would be housed in the local remand centre which had been brought into operation in October 2003. It was said to be a modern building with 2 and 3 person cells, was not overcrowded and was "completely secured electronically". No further evidence was led by the Prosecution or the defence.

 

Submissions on behalf of the Accused

 

[17] Counsel for the accused indicated that he relied upon the argument which he had advanced in the case of Poland v Kropiwnicki http://www.scotcourts.gov.uk/opinions/2B1367.html

in which I had given judgment at Edinburgh Sheriff Court on 16 December 2009 and was currently at appeal. Mr. Govier referred me to paragraphs [13] to [38] and [58] to [60] of that case which set out the so-called "Polish prison conditions" argument which was also advanced in the present case. Counsel said that to extradite the accused to Poland to serve the outstanding prison sentence referred to in the EAW would contravene his Article 3 rights under ECHR. Counsel said that he had made several refinements to the argument advanced in the Kropiwnicki case and had other points to make relevant to the circumstances of the present case.

 

[18] I was initially referred to the case of Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25 which discusses Article 3 in extradition cases and highlights the responsibility of the requested state "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"- see paragraphs 67 & 68. ECtHR in such cases can only award successful applicants monetary compensation for "just satisfaction" where a violation of the Convention was established. By contrast as Mamatkulov v Turkey (supra) indicated the requested state in extradition proceedings had a much more effective remedy in the face of a potential Article 3 violation namely to refuse to extradite.

 

[19] Counsel then referred to Saadi v Italy (2008) 49 EHRR 30 a judgment of the Grand Chamber at paragraphs 125-127 which re-iterates the obligation on the requested state not to deport a person to a country where, "if deported, faces a real risk of being subject to treatment contrary to Article 3." In such a situation the court is "called upon to assess the situation in the receiving country in the light of the requirements of Article 3." Counsel particularly stressed the latter paragraph:-

"Article 3 which prohibits in absolute terms torture and inhuman or degrading treatment or punishment," and "makes no provision for exceptions ".

 

[20] I was then referred to Orchowski v Poland ECtHR 22 October 2009 where the applicant had been awarded compensation by the Court for Article 3 violations in respect that while serving a prison sentence in Poland he had been incarcerated in 8 prisons which, in all but one instance, were overcrowded. At paragraphs 113-115 of the judgment the Court noted the applicant's complaints, namely overcrowding with cell space less than 3m², limited exercise periods and poor sanitary conditions. It was alleged the problem of overcrowding in Polish detention facilities "was of a systemic nature in that it was widespread and persistent." While at paragraph 116 the Polish Government had argued that the applicant "had not suffered inhuman or degrading treatment which attained the minimum level of severity within the meaning of Article 3", the Court had found in favour of the applicant and at paragraph 146 had noted that the Polish Government "acknowledged the existence and the systematic nature of the problem of overcrowding in Polish detention facilities."

 

[21] Counsel then referred to Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin) and was critical of the third leg of the test which Lord Justice Latham had deployed when defining a "real risk of ill-treatment" under Article 3. At paragraph 11 of Miklis 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."

 

[22] Counsel pointed out that in Orchowski (supra) the Court had at paragraphs 134 and 135 had not merely taken into account the overcrowded conditions "below 3 and at times even below 2m² " he had meals in overcrowded cells, had to shower along with a group of strangers and was constantly moved between cells and facilities which "did not allow any elementary privacy". Out of eight institutions in which Mr. Orchowski had been incarcerated seven were found to be wanting. Paragraph 135 states:-

"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."

 

[23] I was then referred to R (Ullah) v Special Adjudicator [2004] 2 AC 323 and a passage in Macdonald's Immigration Law and Practice in the United Kingdom 7^th ed. Paragraph 12.27. At paragraph 24 of Ullah in the speech of Lord Bingham of Cornhill, when discussing grounds for resisting extradition or expulsion his Lordship said:-

"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 inhumane or degrading treatment or punishment."

Counsel stated that there had been no analysis of the concept of "real risk or torture" in recent extradition cases but the matter had been addressed in immigration cases as the passage from Macdonald showed.

 

[24] In the House of Lords case of R v Secretary of State for the Home Department, ex parte Sivakumuran [1988] AC 958 which was concerned with the correct test to apply in order to determine whether refugees who arrived in the United Kingdom were entitled to refugee status which would allow them to remain, the Court considered the United Nations Convention Relating to the Status of Refugees and associated Protocols. The wording considered in this context was a "well-founded fear of being persecuted" if returned. This was held to mean whether there was a "real and substantial risk" or a reasonable degree of likelihood" of persecution.

 

[25] I was directed to Macdonald (supra) where the learned authors state:-

"In his speech in Sivakumaran (sic) Lord Keith appeared to approve Steven's J's dictum in the US case of Immigration and Naturalisation Service v Cardozo Fonseca 94 L ED 2d 434 (1987) that a one in ten chance of being persecuted could amount to a reasonable possibility of persecution. In those circumstances the addition of the word "substantial" to "real" ("a real and substantial possibility ... of persecution") can only be intended to eliminate minimal or mere possibilities rather than to indicate something in the nature of a probability or a prediction."

Counsel directed me to Lord Keith of Kinkel's speech in Sivakumuran (reference) where his Lordship said:-

"In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country."

 

[26] Counsel said that in the present case the Polish Government accepted that their prison regime was systemically overcrowded. This had been conceded in Orchowski (supra) at paragraph 146. Referring to the letter from the EAW judge (referred to above at para [16]) Counsel said while he took no issue to the competency of it being admitted in evidence, the letter did not say that the accused if extradited would not be in overcrowded prison conditions nor did it specify that the accused would be sent to the particular prison mentioned in the letter and whether this would be for the whole of his sentence.

 

[27] Counsel took issue with my application of Lord Justice Latham's test in Miklis (supra) paragraph 11 in Kropiwnicki at paragraph [66]. In paragraph [62] of Kropiwnicki I had contrasted the various penal institutions mentioned in Orchowski (supra) with those indicated should the accused in that case be returned. In the present case Counsel submitted that the letter produced from the Requesting Court did not advance the cause of the Polish authorities standing the recent concessions they had made about the condition of their prison estate in Orchowski.

 

[28] As regards Miklis (supra) Counsel said he could find no case which followed Lord Justice Latham's dictum; it had no provenance, and in any event it ran contrary to the principles set out in Mamatkulov (supra) (see para [18] above). The circumstances disclosed in the recent case of Orchowski (supra) were in Counsel's view sufficient by the frequency and systemic nature of prison overcrowding to highlight a real risk of an Article 3 breach if the accused was extradited. Accordingly there was no need for the accused to lead evidence to meet the third leg of the test in Miklis as this was unnecessary and contrary to line of authority produced in support of the accused. The accused did not require to show any particular susceptibility to an Article 3 violation. Counsel was clear that Orchowski had greater authority than Miklis and in the former case the applicant had not required to demonstrate any individual circumstances.

 

[29] Counsel moved on to take issue with the reference to Miklis in Trajer v The Lord Advocate [2008] HCJAC 78 at paragraph [9]. Counsel considered that I placed undue weight on this reference in Kropiwnicki (supra) at para [67]. Counsel drew my attention in Trajer to paragraph [6] which traced the history of additional appeal grounds. The relevant ground so far as the present case is concerned was paragraph (3)(c) which is contained in paragraph [7] and refers to conditions said to arise in prisons in the Czech Republic. An adjournment of the appeal was sought to make further investigations in support of the appeal ground. This motion was opposed by the Crown and refused by the Court at paragraphs [10] and [11]. Subsequently in light of the Court's decision counsel for Trajer did not argue ground (3)(c) - see paragraph [27]. Notwithstanding this decision counsel for Trajer referred the Court to the appellant's affidavit on prison conditions in the Czech Republic-see para graph [35]. In Counsel's view since the appeal was decided on other grounds Trajer could not be used in the context of the present case, far less as giving approval to Lord Justice Latham's test in Miklis (supra). Furthermore even taking the Court's presumption in Trajer in December 2008 that prison conditions in the Czech Republic were compatible with the provisions of ECHR the same presumption could not be made in relation to Polish prison conditions in light of the Orchowski (supra) decision of October 2009.

 

[30] Counsel took issue with the remark I made in Kropiwnicki (supra) at para [18], where I had suggested that it was significant that ECtHR "had gone no further than to award damages" in Orchowski (supra). I was referred to The Law of Human Rights by Clayton and Tomlinson 2^nd ed. At para 23.108 which highlights that ECtHR can only award compensation and costs by way of "just satisfaction" and has no power to overrule the decision of a domestic court. At paragraph 23.109 the learned authors note that "awards made by the Court are very low by English standards."

 

[31] I was referred to Brozicek v Italy (1989) 12 EHRR 371. In that case the applicant requested the Court to declare null and void the judgment of the national court he complained against but the Court was not empowered to do so (see also Article 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

[32] Finally Counsel referred again to Saadi v Italy (supra) see para [19] above and said that the "absolutist" approach towards Article 3 violations was the correct approach rather than the "relativist" approach adopted by the House of Lords in Wellington v Secretary of State for the Home Department [2008] UKHL 72; [2009] 1 AC 335.

 

Submissions on behalf of the Prosecutor

 

[33] Mr. Lunny began by indicating that he adopted the argument advanced by the Crown in Kropiwnicki (supra) at paragraphs [39] to [57]. He urged the court to adopt the "relativist" approach used in Wellington (supra). In this context EAWs operated against a background of trust among the Contracting States in terms of the Framework Decision. This trust had not been lost as a result of Orchowski (supra). In the same vein the decision in Napier v Scottish Ministers [2005]CSIH 16 did not mean that Scotland had lost its position of trust in the European Union. Indeed Mr. Lunny was unaware of any EAW sent to a European country which had been delayed or denied by the Napier case.

 

[34] I was referred to Baranauskas v Ministry of Justice of the Republic of Lithuania [2009] EWHC 1859 (Admin) at paragraph 11 where Silber J. delivered the opinion of the Court. His Lordship indicated that "Council of Europe countries should be assumed to act fairly" and quoted from Gomes v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 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."

His Lordship concluded:-

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

 

[35] Mr. Lunny said that trust in extradition involving EU countries underpinned the process and could not be shaken simply by the Orchowski (supra) case. Even if one considered Orchowski closely the high watermark of overcrowding in Polish prisons had occurred in November 2006 (see paragraph 89 of the judgment). Accordingly Poland ought to be trusted to adhere to the Convention and ensure the rights of its prisoners.

 

[36] I was urged to follow the test set out in Miklis (supra). In the present case there had been no evidence of any substantive or real risk that the accused faces. There had been no evidence of any condition the accused anticipates facing if deported other than the obvious deprivation of liberty. No special circumstances had been advanced that could amount to a real risk.

 

[37] Mr. Lunny took issue with the introduction of immigration law into the present case. Ullah (supra) involved Tamil Tigers who were anxious not to be deported back to Ceylon having fled for political reasons. This case could be distinguished from EAW extradition cases which involved a different test and lines of authority. The Ullah case dated from 1988 and there had been significant changes in the law since then not least in relation to extradition between EU countries. In the present case the presumption of trust could be relied upon as set out in Baranauskas and Gomes (supra) see para [34].

 

[38] Turning to the letter which had been obtained from the EAW judge, the terms of which are referred to at para [16] above, Mr. Lunny accepted that it did not state that the accused would go to the particular prison referred to or that he would serve his entire sentence there if extradited. The letter did assert that the local prison for the court which had issued the EAW was not overcrowded. While the letter did not say the accused would be imprisoned in conditions that would not violate his Article 3 rights it did provide facts from which such an assumption could be made. It was clear from Orchowski (supra) that latterly in his prison sentence he was kept in conditions which were not overcrowded and no complaint was made about that aspect of his sentence-(see paragraph 64)

 

[39] I was referred to Baksys v Ministry of Justice for the Republic of Lithuania [2007] EWHC 2838 (Admin) and the opinion of the court at paragraph 11 where the Court stated that it was not for the requesting state to produce evidence but could rely on the EAW unless "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." In the present case no such evidence had been offered by the accused and mere reliance on the decision in Orchowski (supra) was not enough to discharge the presumption. Paragraphs 89-91 showed that overcrowding reached a peak in November 2006 but had dropped from 24% to between 3.2% and 4% in June 2009. A total of 2,499 new places were to be available by the end of 2009. Under the Polish system the courts could impose a suspended prison sentence which could be activated within a specified term by the commission of a further offence or a breach of release conditions. Additionally due to the pressure on prison places sentence to a term of imprisonment was often not served immediately and accused were called in to serve their sentence when a place became available. There was a limit to the information and undertakings the Polish authorities could provide in this context otherwise there might be an advantage in convicted persons leaving the jurisdiction and seeking preferential treatment when returned to serve the sentence following the issue of an EAW.

 

[40] Mr. Lunny accepted that in cases such as Orchowski (supra) a serving prisoner could only seek monetary compensation for a violation of Article 3. On the other hand if the court in the requested state was satisfied there was a real risk of Article 3 rights being violated the request for extradition could be refused. However the Council Framework Decision of 13 June 2002 on the EAW and Surrender Procedures 2002/584/JHA was premised upon "a high level of confidence between Member States. Implementation may be suspended only in the event of a serious and persistent breach by one of the Member States" (paragraph 10). Notwithstanding the decision in Orchowski Polish involvement in the EAW scheme had not been suspended. The so-called "Polish prisons" argument had not been deployed in other Member States including cases calling in England under the 2003 Act.

 

[41] Mr. Lunny said that the test in Miklis (supra) was the correct one and should be followed as was done in Kropiwnicki (supra). The reference to Miklis in Trajer (supra) was admittedly an oblique one but it was not disapproved. Mr. Lunny was unaware of any cases in England overruling Miklis.

 

[42] Orchowski (supra) involved a different procedure. The applicant was and continued to remain in custody in Poland. He produced evidence of Article 3 violations that he had suffered, not merely overcrowding but insanitary conditions, constantly being moved cells and institutions which did not allow him elementary privacy and aggravated his situation-(see paragraphs 134 and 135). By contrast in extradition cases the court was not considering an actual breach but had to look to the future and determine whether there were substantial grounds that a violation could take place if an individual was extradited.

 

[43] Lord Justice Latham's approach in Miklis (supra) looked for any characteristics that might help determine whether a substantial or real risk was likely. It was necessary to assess future risks and it was clear from the progress to eliminate overcrowding mentioned in Orchowski (supra) and the information contained in the letter from the Requesting Court that overcrowding was not an issue and no evidence had been produced form the accused to the contrary to displace the expectation that under the EAW procedure human rights would be respected.

 

Reply on behalf of the Accused

 

[44] Mr. Govier referred to Baranauskas (supra) at paragraph 11. The quotation from Gomes (supra) was not relevant as Article 6 did not apply in the present case. The accused had been convicted and if extradited he would not face a re-trial. In the last section of paragraph 11 the court assumed human rights would be protected simply because the requesting state was a signatory to the Convention. It was apparent from Orchowski (supra) that Article 3 rights had been violated over a long period of time, frequently and systemically.

 

[45] The letter received from the Requesting Court (see para [16] above) was of more value for what it did not rather than what it did say. There was no detail about the number of prisoners the institution could hold and whether the 3m² area per prisoner was in operation. It seemed that all prisoners were either two or three to a cell. Mamatkulov (supra) at paragraphs 67 and 68 and indeed the Framework Decision at paragraph (13) of the preamble made it clear that no one should be extradited "to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."

 

[46] In cases of this type the accused were in a difficult position. It was difficult to obtain independent evidence and the information produced by the Polish authorities was very unspecific and unsatisfactory. Orchowski (supra) was a recent, authoritative and comprehensive consideration of Polish prison conditions. The Polish Government admitted prolonged failings in their prison estate and it was clear that overcrowding still remained in the system. The court should step back from the terms of the letter and look at the principles involved and the likelihood of an Article 3 breach if extradition took take place.

 

Discussion

 

[47] The present case did appear to me to be similar to that in Kropiwnicki (supra). No evidence had been led by the accused in support of the Human Rights argument under section 21 of the 2003 Act or the Devolution Minute. Nevertheless further argument had been advanced in support of the accused's position and additional authorities had been produced by both parties. When I heard parties at the Full Hearing of this case I understood that Kropiwnicki and another similar case were due to be argued at the Appeal Court the following week and thereafter might be taken to avizandum. Since the accused was in custody and it was not clear when a decision might be reached by the Appeal Court in Kropiwnicki I decided to determine matters in these proceedings as soon as possible.

 

[48] Several new matters had been raised by Counsel for the accused in refining the argument he had adopted in Kropiwnicki (supra). Starting with Mamatkulov (supra) - (see para [18] above) there is no doubt that the relevant test in this context is to determine whether "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". Furthermore in terms of Saadi v Italy (supra) - (see para [19) in the face of a challenge to proceedings for extradition the court in the requested state is required to assess the situation in the receiving country in the light of the requirements of Article 3.

 

[49] In Orchowski (supra) (see para [20] above) the Court had found in favour of the applicant and had noted that the Polish Government "acknowledged the existence and the systematic nature of the problem of overcrowding in Polish detention facilities." It was clear from Orchowski the situation regarding overcrowding had been at its worst in November 2006 but there had been steady improvements and further work improving the Polish prison estate was due to take place after the Orchowski court hearing and continue to the end of 2009. Mr. Orchowski had complained about 7 out of the 8 institutions in which he had been incarcerated but had made no complaint in respect of the latest prison he had been sent to in February 2009. In the present proceedings the Requesting Court had sent a letter which mentioned the Remand Centre in Piotrków Tribunalski but did not make it clear that the accused would be serving his sentence there if extradited either in whole or in part. Similarly no information was given about the maximum number of prisoners who could be safely housed in this prison or whether placing two or three prisoners in the same cell would result in less than 3m² per prisoner, the figure referred to in Orchowski as the minimum standard.

 

[50] In relation to the criticisms advanced about the test in Miklis (supra) (see paras [21] and [27- [29] above), it was accepted by parties that reference to this case in Trajer (supra) had been rather oblique. In the event Trajer had been determined on other grounds as the Article 3 argument had been abandoned during the appeal hearing. Nevertheless as Mr. Lunny pointed out the Appeal Court had not disapproved of Miklis and presumably would not have referred to it if the test applied had been in doubt.

 

[51] In regard to the tests set out in Ullah and Sivakumuran (supra) (see paras [23] to [25] above I noted Mr. Lunny's criticism about considering immigration cases in the context of an EAW extradition case. It seemed clear that the test originally fashioned in Ullah was open to criticism and had been made more robust. Given the nature of the EAW regime an extradition could not be refused simply if an accused had a well founded fear of persecution which could be shown to be groundless or irrational.

 

[52] I am clear if it was not well expressed in Kropiwnicki (supra) that at the ECtHR as in Orchowski (supra), a successful applicant who establishes Article 3 violations can only obtain compensation by way of "just satisfaction" whereas in extradition proceedings under the 2003 Act the court can by comparison deploy the "nuclear option". In other words 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 court can refuse to extradite and the prison sentence will not be served.

 

[53] The discretion that is afforded to the court in cases of this type is on the one hand to follow the spirit and inherent trust of the EAW regime and deal with such requests promptly, but also to ensure the statutory and ECHR considerations are given due weight to prevent an accused suffering a violation of rights. I am not sure if the passages referred to in Baranauskas and Gomez (supra) take matters any further but in the present case I have to consider the effect of the recent decision in Orchowski (supra) and the concessions made by the Polish authorities about the condition of their prison estate and the improvements planned up to the end of last year. I also had the letter from the Requesting Court which provided some specific up-to-date information.

 

[54] I recognise the difficulties in securing timeous and authoritative evidence about foreign prison conditions but I do have to bear in mind the summary nature of these proceedings and the fact that the accused was on bail for a considerable period and in a position to make or instruct enquiries. There were two and a half months available to the accused to pursue information. Baksys (supra) clearly highlights the need for evidence to be produced but in the event I have to determine matters on the basis of Orchowski (supra) and the other authorities quoted and the terms of the EAW and associated letter which was produced.

 

Decision

[55] I consider the present case largely to be on all fours with Kropiwnicki (supra). Orchowski (supra) highlighted overcrowding in Polish prisons and the affect this had on the particular applicant. He was able to show the effects of such overcrowding in 7 of the 8 institutions he was incarcerated in from September 2003 until February 2009 when conditions did not give rise to complaint. The argument in Orchowski highlighted poor conditions across much of the Polish prison estate especially in November 2006 when almost a quarter of the system was overcrowded. Against that background the one in ten chance suggested by Lord Keith of Kinkel in Sivakumuran (supra) that could amount to a reasonable possibility of persecution seems almost cautious albeit that was said in another context.

 

[56] However as was accepted by the Court in Orchowski (supra) by 2009 the position had much improved and by June 2009 overall overcrowding rates were between 3.2% and 4% (see paragraph 89 of Orchowski). Against that background the letter dated 26 January 2010 from the Requesting Court provides information that their local prison is modern, not overcrowded and "completely secure electronically". In terms of Saadi (supra) at paragraph 126 I am required to assess the situation in the receiving country in light of the requirements of Article 3 and having done so consider on the information before me there is no real risk of an Article 3 violation likely in this case.

 

[57] The information contained in the EAW and supporting letter provides me with confidence in the accused's circumstances that the inherent trust in the EAW system can be relied upon in the present case. It was helpful to me to have the Requesting Court's letter to reassure that progress continues to eliminate overcrowding since the concessions made by the Polish Government in Orchowski. In terms of Baksys (supra) in the absence of any evidence to the contrary I am satisfied no substantial grounds have been shown for believing that the accused would, if extradited face a real risk of being subjected to treatment contrary to Article 3 by virtue of prison overcrowding.

 

[58] I do consider the test set out in Miklis (supra) at paragraph 11 by Lord Justice Latham to be of help in this context. While it was accepted by the Court in Orchowski (supra) and ultimately to a large extent by the Polish Government that overcrowding in prisons had been frequent and systemic, I have accepted that is not a factor in the case of the present accused. No specific vulnerability was advanced to suggest the accused would be exposed to human rights abuse. By contrast in Trajer the Court considered the appellant's rape conviction and the fact that no specific prison arrangements were made for sex offenders. In the present case such a consideration does not apply. While the reference to Miklis in Trajer was an oblique one in light of the abandonment of the Article 3 appeal ground the Appeal Court gave consideration to the appellant's Convention rights in particular those under Article 8 before confirming the decision to extradite. In the instant case accused did provide a history of alcohol abuse but this is a common problem in prisons and does not indicate a special vulnerability.

 

[59] Even if I accept the criticisms of the Requesting Court's letter that it does not confirm the accused will be imprisoned for the duration of his sentence at this particular facility, as I have indicated from the statistics contained in Orchowski (supra) I am satisfied that the risk of an Article 3 violation is at a low level. In Wellington (supra) the House of Lords adopted a "relativist" approach and I do not consider that to be at odds with the authorities quoted on behalf of the accused. Ultimately the court in proceedings of this type has to make a judgment call in applying the test and in the circumstances of the present case as I have indicated the likelihood is that the accused will not experience prison overcrowding to an extent which would amount to an Article 3 violation. He has a relatively short sentence to serve in comparison to Orchowski who has been incarcerated since 2003 and was repeatedly moved around overcrowded institutions until it was accepted his health suffered.

 

[60] Accordingly I answer the question posed at section 21(1) of the 2003 Act in the affirmative and in terms of subsection 21(3) order that the accused be extradited to Poland in terms of the European Arrest Warrant dated 10^th August 2009 issued by the Regional Court of Piotrków Trybunalski in respect of the judgment of the District Court of Belchatów of 20^th September 2004 re case no. II K 392/04. The Devolution Minute was in similar terms to the argument deployed in connection with section 21 of the 2003 Act. It therefore follows from the above decision that the Devolution Minute is refused on the same basis.