Scottish Sheriff Court Decisions

Court reference 2B712/09

 

IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH

UNDER THE EXTRADITION ACT 2003

 

POLAND v SEBASTIAN BIELECKI (d.o.b. 20/04/87 ) whose domicile of citation has been specified as 6/3 West Pilton Grove, Edinburgh

 

Act Mr. D Dickson and Mr. V Lunny Crown Office International Unit on behalf of the District Court of Legnica, Poland

Alt Mr. McCluskey Advocate instructed by Ms Schofield of Capital Defence Lawyers, Edinburgh

 

Edinburgh 26th February 2010

 

The Sheriff having resumed consideration of the request made under the provisions of the Extradition Act 2003 by the District Court of Legnica, Republic of Poland dated 4^th November 2008 for the extradition of the said Sebastian Bielecki answers in the affirmative the question posed in subsection (1) of section 21 of the said 2003 Act, refuses the Devolution Minute and in terms of section 21 (3) of the said Act orders that the said Sebastian Bielecki be extradited to Poland conform to the warrant of even date.

 

NOTE

Introduction

[1] This case involves a European Arrest Warrant (an EAW) which was issued by the Polish authorities namely the District Court of Legnica in respect of the accused. The warrant was issued on 4^th November 2008 and involved four cases containing a total of twelve charges of housebreaking, theft, robbery, vandalism, riding a bicycle while drunk, supplying a drug, possession of drugs and theft by opening a lockfast car. 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 Article 3 rights would be violated. A further ground of opposition was in relation to the accused's Article 8 rights to respect for private and family life.

 

Procedural History

[2] The case first called at Edinburgh Sheriff Court on 26 June 2009. A Preliminary Hearing was fixed for 7 July and the full Extradition Hearing for 16 July 2009 and bail was refused. The accused confirmed that he was the person referred to in the warrant. A Devolution Minute was lodged on 7 July 2009 but no appearance has been entered by the Advocate General. Bail was applied for again but opposed and refused. The case was continued until 16 July to the Full Hearing.

 

[3]On 16 July the accused was represented by counsel for the first time and sought an adjournment until October to allow another criminal case to be disposed of and to allow the accused's solicitors to carry out enquiries. This was opposed and refused, however the Court adjourned the case to a notional hearing on 13 August and remanded the accused in custody.

 

[4] On 13 August the case called before me for the first time and I continued the case to a notional hearing on 23 September and refused bail. At this stage counsel indicated that the opposition to extradition was in principally respect of Polish prison conditions and various authorities were lodged in support of this line of challenge. Time was specifically sought to seek sanction to engage an expert witness who would be in a position to travel to Poland if necessary and provide a report on Polish prison conditions.

 

[5] On 23 September the case was adjourned to a preliminary hearing on 21 October and a full hearing on 4 November 2009 and the accused was again remanded in custody. On 4 November the case called before me again when the hearing commenced and was adjourned until 9 December. Bail was again applied for and refused. The hearing continued on 9 December and was adjourned part-heard until 17 December. Bail was opposed but granted.

 

[6] On 17 December evidence was led from the accused after which the Crown sought an adjournment to consult the Polish authorities. The case was adjourned until 13 January 2010. The accused's bail conditions were modified on that date but otherwise bail was continued. On 13 January a custody extradition case was dealt with first and there was insufficient time to proceed further, the Crown indicated they had been in touch with the Polish authorities and were seeking further information. On 29 January the Crown disclosed further information to the defence and the case was continued on joint motion until 4 February with the accused's bail being continued as both parties had additional enquiries to make.

 

[7] On 4 February 2010, Mr. Lunny appeared on behalf of the Lord Advocate and I heard submissions from parties before adjourning the proceedings to 26 February 2010 to consider the submissions and produce a written decision.

Procedure at the Extradition Hearing

 

[8] At the initial calling of the case on 26 June 2009 the accused accepted that he was the person referred to in the warrant 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.

 

[9] At the Hearing on 4 November I was directed by Mr. Dickson for the Lord Advocate to section B of the EAW which indicated that the accused had been convicted and sentenced in respect of various offences arising out of four separate sets of proceedings, all of which had taken place at the Regional Court in Glogów on different dates between November 2006 and October 2007.

 

[10] The first case in the warrant is Case No. II K 613/07. It involved eight separate offences for which a total sentence of 2 years 6 months' imprisonment had been imposed. It was submitted that section 65(3) of the 2003 Act applied as the offences had all occurred in Poland, the conduct involved was of a type which was criminal in Scotland and imprisonment in excess of four months' imprisonment had been imposed. The accused had in fact served 3 months 21 days of his sentence before being released but 2 years 2 months and 9 days remained outstanding.

 

[11] In respect of Case No. II 720/06 the accused had been convicted and sentenced to 10 months imprisonment. One of the offences involved trafficking in drugs which is an offence contained in the European framework list referred to at section E1 of the EAW. The certificate confirmed that the maximum sentence which could be imposed in Poland for this type of offence was at least 3 years' imprisonment and accordingly section 65(2) of the 2003 Act applied.

 

[12] Case No. II K 164/07 involved a charge of theft by opening a lockfast vehicle for which a sentence of 1 year 4 months' imprisonment was imposed, one day of which had been served. The final case was Case No. II 306/07 which involved a charge of robbery and in respect of which a sentence of 1 year's imprisonment had been imposed.

It was submitted that all of those offences complied with the dual criminality condition and since sentences in excess of four months' imprisonment had been imposed section 65(3) of the 2003 Act applied.

 

[13] There was agreement that all of the offences in the warrants were extradition offences and so I answered the question posed at section 10(2) of the 2003 Act in the affirmative and in terms of section 10(4) moved on to consider whether there were any bars to extradition under section 11 of the 2003 Act.

 

[14] It was accepted on behalf of the accused that there were no bars to extradition and accordingly in terms of section 11(4) I moved on to consider section 20 of the 2003 Act. In this connection Mr. Dickson produced a letter from Judge Treter of the District Court in Legnica (the signatory of the EAW) that the accused had been present in each of the cases referred to in the EAW.

 

[15] Mr. McCluskey produced a letter from Judge Treter dated 23 October 2009 which indicated that in Case II K 613/07 the court had imposed an unconditional sentence of imprisonment whereas in the three remaining cases the sentences of imprisonment were suspended. The letter narrated that Glogów Provincial Court had subsequently ordered the suspended sentences to be served.

 

[16] At first reading the letters seemed contradictory but a fair reading of both indicated that the accused did not qualify for obligatory legal representation but was entitled to the services of a public defender however he had made no application for such representation.

 

[17] The earlier letter indicated that the accused pled guilty to most of the offences excluding certain specific ones. After some discussion with parties I determined that taken together the letters and the EAW indicated that the accused had been convicted of all of the offences contained in the warrant, he having pled guilty to a number of the charges and had been found guilty of the others. 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. After considering the point further I answered the question posed at section 20(2) of the 2003 Act in the affirmative on 17 December 2009 and moved on to consider section 21 of the 2003 Act and whether extradition would be compatible with the accused's Convention Rights.

 

[18] Counsel for the accused said that the argument presented in the present case was essentially the same which had been deployed in the case of Poland v Kropiwnicki

http://www.scotcourts.gov.uk/opinions2B1367.html

in which I had issued a judgment on 16 December 2009. Unlike that case however evidence was to be adduced in support of the accused's position and accordingly evidence was heard from the accused and his fiancée on 17 December 2009.

 

[19] In relation to the evidence I found the following facts admitted or proved:-

 

(1) The accused is 22 years of age and was born in Poland. He moved to Scotland in November 2007 to stay with his parents who resided here and he obtained employment.

 

(2) As an unemployed teenager in Poland the accused began abusing amphetamine and alcohol and had regularly been in trouble with the authorities as was shown in the EAW.

(3) Since moving to Scotland the accused had met a Allanah Taylor and was living with her and her child. He had been in a relationship with her for the last two years and they hoped to marry soon. He had ceased involvement in substance abuse and had been in regular employment. His fiancée had returned home to stay with her mother when the accused was on remand but the couple had resumed cohabitation on his release on bail.

 

(4) While being dealt with in Poland for the various offences contained in the EAW the accused had been a prisoner in Wroclaw Prison between July and November 2007.

 

(5) The accused had been incarcerated in a two man cell which had contained five or six other prisoners. Four bunks had been fitted into the cell and the remaining two or three prisoners had to sleep on mattresses placed in the middle of the floor or under the bunks.

 

(6) The accused was allowed a shower once a week which he took in a large shower area at the same time as 30-40 other prisoners.

 

(7) The accused was confined to his cell for 23 hours each day and was allowed an hour's exercise. Once a week he had a shower instead of the exercise period.

 

(8) Meals were provided three times a day but were of poor quality, mostly bread. Inmates who had access to money were able to obtain better food and conditions. The accused and his cell mates regularly received less food than other inmates partly as a punishment and partly because they had no money.

 

(9) Bullying, violence and sexual abuse regularly took place among inmates and the accused though not victimised had been afraid and worried about being attacked.

 

(10) The prison was dirty and he had seen rats running about in his cell and the corridors.

 

(11) Prison warders patrolled the prison with dogs. There were no education classes or work available. If a prisoner had access to money he could obtain better food and facilities including a single cell with a television installed.

 

[20] There was no cross examination of the accused's evidence. I found the accused and his fiancée both to be credible and reliable witnesses.

Would extradition be compatible with the accused's Convention Rights?

 

Submissions on behalf of the accused

 

[21] Counsel opposed the accused's extradition under section 21 of the 2003 Act on two grounds-Articles 8 and 3. A challenge under Article 6 was not insisted upon and section C of the Devolution Minute was deleted. In relation to the former ground I was first directed to the case of Jaso and others v Central Criminal Court No. 2 Madrid [2007] EWHC 2983 (Admin) at paragraph 57 where the Court said in an extradition case "there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's article 8 rights."

 

[22] Counsel highlighted the transformation in the accused's conduct from being a teenager in Poland in regular contact with the authorities committing criminal offences to having the support of his family and fiancée in Scotland and the benefit of regular employment. This had led to a complete change in his behaviour, abstention from alcohol and illicit drugs. The accused's evidence had not been challenged by the Lord Advocate. It appeared that the various sentences the accused faced would have to be served consecutively and the accused if extradited would have to serve 5 years' imprisonment in Poland where his family no longer lived. This would place a great strain on his relationship with his fiancée and family.

 

[23] In relation to the Article 3 argument Counsel indicated that he intended to rely on Orchowski v Poland EHRLR 2010, 1,117-121 and the argument put forward in the case of Kropiwnicki (supra) rather than the report from academics at the University of Greifswald in Germany mentioned in the Devolution Minute as this report was yet to be published. I was referred to the letter dated 5 January 2010 which Judge Treter, the judge who had signed the EAW, had sent in response to a request from Crown Office. The letter said that if the accused was extradited he would be placed initially in the Remand Unit in Warsaw-Bialoleka then would be transferred to Wroclaw and thereafter may be transferred to Wolów or Glogów.

 

[24] The accused had given uncontested evidence about prison conditions in Wroclaw which amounted to a substantial breach of Article 3. The evidence was much more serious than the circumstances in Napier v Scottish Ministers 2005 SC 229. In terms of the letter from the requesting court if the accused was extradited he would after an initial period be sent back to the prison he had previously been incarcerated and accordingly he faced a real risk of an Article 3 violation.

 

[25] I was referred to the CPT report carried out by the Council of Europe following their visit to Polish penal institutions in October 2004. The Appendix to the report listed deficiencies in Wolów prison which were described at paragraphs 107-116 of the report. The criticisms related to overcrowding, insufficient shower facilities, a need to review prisoners' laundry arrangements and refurbish the kitchen. No later report was available for the prisons mentioned in the letter. The next such report was not due until July of this year.

 

Submissions on behalf of the Lord Advocate

 

[26] In reply to the accused's Article 8 argument Mr. Lunny referred to Reid v H M Advocate [2009] HJAC INFO where the appropriate test to apply in such cases was considered. Lord Nimmo Smith at paragraph [4] said the correct approach was to be found in Huang v SSHD [2007] AC 167, Lord Bingham of Cornhill at para.20. In the present context where the question is whether to order extradition or discharge, in circumstances where the life of the family cannot be reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of extradition, prejudices the family life of the accused in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. Lord Nimmo Smith concluded that" the issue is one of proportionality, which involves the weighing of the relevant competing considerations in the balance." Mr. Lunny submitted that the accused's circumstances were not striking or unusual or beyond the normal affects on an individual's private life when extradition is in contemplation.

 

[27] Turning to Article 3 considerations Mr. Lunny said that he adopted the argument in Kropiwnicki (supra) at paras [39] to [57]. He was not in a position to contradict the accused's evidence regarding prison conditions in 2007 when the accused was incarcerated in Wroclaw. His evidence did not reveal any characteristic or specific vulnerability "which would expose him to human rights abuse."- see Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin) paragraph 11. This could be contrasted with the position in Howse v H M Advocate [2009] HCJAC 29 where a specific undertaking was sought from the Requesting State to accommodate the accused's medical circumstances. While the accused's evidence related to past experiences it was not evidence of future danger.

 

[28] Mr. Lunny commended the "relativist" approach adopted in Wellington v Secretary of State for the Home Department [2008] UKHL 72; [2009] 1 AC 335. In the case of Trajer v H M Advocate [2008] HCJAC 78 at paragraph [35] the Court did not consider information placed before them was sufficient to displace the presumption that the prison conditions of a Member State of the EU and participating in the EAW system "are compatible with the provisions of the European Convention on Human Rights." The Court concluded that "were it to emerge at some later date that there were legitimate concerns in which the appellant was incarcerated ...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."

 

[29] I was referred again to Miklis (supra). In that case the appellant had given evidence that he was seized by the police, assaulted and agreed to become an informer. Subsequently word of his involvement became known to others and he was attacked and stabbed although by then he had ceased to work for the police. At paragraph 16 Lord Justice Latham said:-

"The evidence does not suggest that the police systematically ill-treat those who are arrested. Whilst it undoubtedly supports the appellant's evidence in relation to the way he was treated when he was taken to the police station and persuaded to become an informer, it by no means follows that there is a real risk that he will be ill-treated were he to be returned into police custody now, let alone ill-treated to an extent amounting to a breach of Article 3."

 

[30] Turning to the letter of 5 January 2010 from Judge Treter, Mr. Lunny noted that if extradited the accused would be transferred from a remand centre in Warsaw to Wroclaw Prison. He referred to Orchowski (supra) at paragraphs 89-91 which described the measures undertaken by the Polish authorities to reduce the rate of overcrowding in their prison estate. Overcrowding had begun in 2000 and peaked in November 2006 at 24%. By June 2009 however rates for prisons and remand centres were 3.2% and 4% respectively. I was provided also with statistics from the Polish authorities about the prisoner population as at 11 January 2010. The figures showed there were four prison establishments in the Warsaw area but the one the accused would be sent to if extradited-Bialoleka was seven prisoners short of capacity in its main wing. The other three units were at full capacity.

 

[31] Similarly in Wroclaw the main wing was 9% below capacity and while the other two units were overcapacity they housed small populations and were presumably special units for females, juveniles or patients. The figures for Glogów showed it to be almost 4% over capacity at present. If one looked generally at the statistics while some units were overcapacity they usually involved smaller numbers of prisoners.

 

[32] Mr. Lunny stressed that the additional information and figures had come via the requesting judge and accordingly could be treated with the same trust as the EAW itself. In addition to these management actions which had been taken to reduce prison overcrowding laws had been passed which came into effect last September. In Orchowski (supra) at paragraph 147 the Court said that it had 160 Article 3 cases outstanding with 95 from Poland alone. By contrast Napier v Scottish Ministers (supra) notwithstanding none of the cases involved Scotland.

 

[33] In conclusion Mr. Lunny said that if the accused was returned to Poland his prison conditions would be Article 3 compliant. The letter and statistics produced by the requesting court were sufficient to counter the evidence given by the accused about his prison experiences in 2007. The letter said that "living conditions have been improved". This had addressed the problems highlighted in Orchowski (supra).

 

[34] So far as the accused's Article 8 argument was concerned, Mr. Lunny said that the accused was unemployed at present. Although he had a partner he was not the father of her child and the personal and family circumstances did not come near to the standard required-see Jaso (supra) paragraph 57. The remarks of Dyson L J were quoted with approval in Trajer at para. [34]:-

"What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's Article 8 rights."

 

Reply on behalf of the Accused

 

[35] Counsel indicated that he wished to respond in respect of Article 3 considerations. He did not challenge the probity of Judge Treter's letter but wished to take issue with what all of the additional information meant. He criticised the last paragraph of the letter as having third hand information "from the penitentiary judge of the District Court in Wroclaw". There was no definition of overcrowding. It was not clear on what basis the established limits for prisons were calculated.

 

[36] Counsel referred again to the CPT report-see para [25] above. The Committee had inspected Wolów prison in 2004 and their findings are contained at paragraphs 107-119. Various recommendations are made at paragraph 111 to reduce overcrowding and improve shower, laundry and kitchen facilities. Counsel noted at paragraph 107 that the official capacity in 2004 was 1,020 but at the time of that inspection housed 1,352 prisoners. The statistics provided by the Polish authorities showing the position as at 11 January 2010 gave an establishment for 989 prisoners but it currently held 1,015 prisoners being overcapacity to some degree in each of its four wings.

 

[37] The 2004 report (at para. 111) recommended the authorities reduce overcrowding to achieve a minimum of 4m² of living space per prisoner whereas in Orchowski (supra) the Court considered "the minimum statutory standard of 3m² of space per person" (see paragraphs 84, 85 and 130). It appeared that the Polish Government had legislated to a lesser standard than that recommended. Counsel was not clear how many prisoners were being housed in each cell and how the capacity of prisons was determined. The statistics and information provided lacked specification and to accept them as sufficient would be unfortunate and unfair.

[38] As regards Wroclaw prison, Counsel understood the relevant facility was No. 2 prison. The statistics showed it was nearly 6% overcrowded in the main wing and at capacity in the other smaller unit. The figures also showed that for the Wroclaw District of Poland only 2 out of 15 prison institutions did not have overcrowding issues.

 

[39] In conclusion the information provided with the letter lacked specification. The Lord Advocate appeared to have made no attempt to secure an undertaking from Poland that the accused's Article 3 rights would be protected. The accused's evidence of Article 3 violations when in prison in Poland had not been the subject of cross examination. The Crown had not established far less established beyond reasonable doubt that the accused's Article 3 rights would not be violated.

 

Discussion

 

[40] I was concerned that there had been no cross examination of the accused's evidence. The accused gave his evidence in a straightforward manner but in was not tested by cross examination. I appreciate that Mr. Dickson would have been in possession of little or no material to challenge the accused on his experience on Wroclaw prison. By virtue of section 9 of the 2003 Act extradition proceedings are to be conducted as if they were summary proceedings. In summary proceedings the prosecutor "should cross-examine the accused and any other witness who gives exculpatory evidence". Renton and Brown 6^th Edition paragraph 21-21.1; Young v Guild 1985 JC 27. The role of the Lord Advocate in extradition proceedings goes further than that set out at section 191 of the 2003 Act. In Goatley v H M Advocate 2008 JC 1 paragraph [14] the Court stated:-

"Whatever function he is performing, it therefore constitutes an act within the meaning of section 57(2) of the Scotland Act and can therefore be brought into question as a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Act. In our opinion, therefore, the devolution minutes, so far as directed against acts of the Lord Advocate, are competent."

 

 

[41] Since the Lord Advocate cannot act in a manner incompatible to the Convention it is vital in proceedings of this nature to explore and test assertions of Convention rights or potential violations of same. Where evidence is led it is helpful if the Lord Advocate acts as a contradictor in areas where the court has to make determinations (c.f. Baksys v Ministry of Justice of the Republic of Lithuania [2006] EWHC 1032 (Admin) Moses L J at paragraph 11). It may not always be necessary to cross examine the accused or any of his witnesses if it is felt the evidence led is not sufficient for the court to take the decision to discharge the accused. It may well be that it was considered that a case under Article 8 had not met the test in evidence in chief however in relation to the Article 3 challenge it seemed clear the accused had experienced significant violations when in custody there in 2007. In any event evidence led can determine whether an accused is ordered to be extradited or has the proceedings discharged. It is helpful for the court to have potentially favourable evidence tested where the court ultimately has to find facts.

 

[42] It was unfortunate that Mr. Dickson was unable to appear at later callings of this case due to illness. Mr. Lunny handled the case with his customary professionalism and was able to continue Mr. Dickson's presentation. However I was concerned that the arguments of parties mainly seemed to centre on prison overcrowding whereas the accused's complaints from his previous spell of incarceration were more comprehensive and in many respects more serious.

 

[43] Since the accused was able to give evidence of his recent personal experience of prison conditions in Poland his case was stronger than Kropiwnicki (supra) and Poland v Osinski http://www.scotcourts.gov.uk/opinions/2B1379_09.html both of which I dealt with recently, the former case currently being at appeal.

 

[44] There is no doubt that when the CPT committee visited Poland in 2004 to inspect Wolów and two other penal institutions they found conditions wanting. Similarly when the ECtHR considered the applicant's complaints in Orchowski (supra) they found that he had suffered Article 3 violations in respect of overcrowding, lack of adequate shower facilities and constant movement between cells and facilities (see paragraphs 134 and 135). The Court did recognise that conditions had improved from a low point in November 2006 (paragraph 89) and the applicant had no such complaints about his incarceration from February 2009 in Wroclaw prison (see paragraphs 63 and 64).

 

[45] As regards the Article 8 challenge to extradition, I note that the law on this topic has been fully considered by the Supreme Court in Norris v Government of the United States of America [2010] UKSC 9. It is necessary to balance the public interest in the extradition of an individual against that damage which extradition would do to the private and family life of this accused. In the present case the EAW discloses 4 separate cases containing 12 separate offences over a period from May 2004 to July 2007. Significant prison sentences had been imposed for this course of criminal conduct. It appears most of the accused's close family are located in Scotland-parents, a brother and his fiancée. However he is not the father of his fiancée's child albeit their relationship has lasted long enough for him to consider himself in loco parentis.

 

Decision

 

[46] As I have indicated I found the Article 3 challenge in the present case stronger from the accused's perspective than that in Kropiwnicki and Osinski (supra) where no evidence was led in support of the prison overcrowding argument and reliance was simply placed on the decision in Orchowski v Poland (supra).

 

[47] I did consider after the accused had given evidence about the conditions in Wroclaw prison in 2007 I was entitled to seek additional information or undertakings before reaching a concluded view on the case ( see Howse v H M Advocate [2009] HCJAC 94 and Gomez v Secretary of State for the Home Department (2010) [2010] EHHC 168 (Admin).

 

[48] It was clear from Orchowski (supra) at paragraph 89 that efforts had been made in recent years by the Polish authorities to reduce prison overcrowding. The statistics produced which provided a snapshot of prison capacity as at 11 January 2010 showed a continuation of that work and consequently a much improved position from what had obtained a few years ago. Counsel had been critical of the statistics but in relation to Wolów prison the CPT committee had inter alia recommended the enlarging of single cells or their withdrawal from service (see para. 111). The prison was a Victorian building and in 2004 had an official capacity of 1,020. By comparison the recent statistics gave the total capacity as 989 which suggested previous cell capacity had been altered by combining cells or withdrawing unsuitable ones from use in line with the recommendations. Furthermore Judge Treter's letter indicated that living conditions in Wroclaw prison "have been improved due to completion of repairing building works".

 

[49] Given the background of trust under which the EAW system is designed to operate, I considered that the Polish authorities had done as much as might be expected of them in light of Orchowski (supra) and more particularly the evidence of the accused in relation to prison conditions in Wroclaw in 2007. It was clear from Orchowski that since early 2009 prisoners could be housed in that institution in a way which would not give rise to Article 3 complaints. While the statistics did disclose that various prisons were overcapacity the levels were nothing like those which had prevailed in 2006.

 

[50] The statistics did not show the elimination of prison overcrowding but they did show a much reduction from 24% overcrowding in November 2006 to a current overall figure of less than 5% for prisons located in the Wroclaw District. In terms of Wellington a "relativist" approach can be adopted in light of these changed circumstances.

 

[51] Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25 at paragraph 67 specifies a test 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". In this context the requested country requires to make "an assessment of the conditions in the requesting country against the standards of Article 3 of the Convention." Having sought reassurance from the Polish authorities I have made that assessment on the evidence presented to me and am content that there is no such real risk of the accused facing Article 3 violations in the prisons in which he is likely to be incarcerated if extradited.

 

 

[52] In relation to the accused's Article 8 argument I did not consider the evidence given by him and his fiancée reached the requisite standard as laid down in Jaso and Reid v H M Advocate (supra). As in all such cases extradition will have adverse consequences for the individual concerned, his private life and his family. In the present case the accused has no close family in Poland, all are residing in Scotland. Nevertheless I do not consider the evidence produced under this head of challenge is sufficient to refuse extradition.

 

[53] Accordingly I answer the question posed at section 2191) of the 2003 Act in the affirmative and order the accused be extradited to Poland in terms of the EAW issued by the District Court of Legnica on 4 November 2008.