APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Eassie Lady Paton	[2010] HCJAC 41 Appeal No: XC9/10 & XC10/10 OPINION OF THE LORD JUSTICE CLERK in APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 by ADAM KROPIWNICKI Appellant; against THE LORD ADVOCATE Respondent: _______

For the appellant: Carmichael QC; Wilson McLeod

For the Lord Advocate: Creally, M McKay; Crown Agent

4 May 2010

Introduction

[1] This is an appeal against the decision of Sheriff Crowe dated 16 December 2009 to order the appellant's extradition to Poland in terms of section 21(3) of the Extradition Act 2003 (the 2003 Act).

Background

[2] The appellant was arrested in Scotland on 17 November 2009 on two Part 1 Warrants issued by the Regional Court in Bialystok, Poland. For the purposes of the 2003 Act Poland is a Category 1 country (cf La Torre v Lord Adv, 2008 JC 23). The first warrant was issued on 14 March 2008. It requested the surrender of the appellant to serve sentences of imprisonment of five months and two years respectively for theft and assault and robbery. The second warrant was issued on 22 September 2009. It requested his surrender to serve a sentence of imprisonment of two years for assault and robbery.

The devolution issue

[3] The appellant lodged a devolution minute in which he opposed extradition on the ground that to return him to Poland would violate his rights under article 3 of the Convention because of systemic overcrowding and associated poor conditions in Polish prisons amounting to inhuman or degrading treatment or punishment.

Orchowski v Poland (Application no 17885/04), 22 October 2009

[4] The appellant relies on the decision of the European Court of Human Rights in Orchowski v Poland (supra). The applicant in that case was sentenced to imprisonment in Poland in 2003. Thereafter he was detained in eight prisons. He complained that the conditions in all but one of them amounted to inhuman and degrading treatment. He alleged that he had been held in overcrowded conditions; that he had been allowed little time out of his cell; that the sanitary facilities had been inadequate, and that all of this had affected his physical health and caused him humiliation and suffering. He submitted that the problem of overcrowding in Polish prisons was widespread and persistent and that Poland's constitutional court had recognised the systemic nature of the problem in proceedings taken by another prisoner in 2006.

[5] The Polish government acknowledged that there had been a systemic problem since 2000, but notified the Court that since 2006 a series of robust measures had been undertaken which had caused a sharp fall in the rates of overcrowding in all detention facilities. These measures had included a scheme to allow short term prisoners to serve their sentences outwith the prison system, and an increase in the number of prison places.

[6] The Strasbourg Court found unanimously that the applicant's rights under article 3 had been violated. These were its key findings.

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

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

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

The Court observed that 160 similar applications from Polish prisoners were currently pending before it (para 147). It concluded that for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres revealed a structural problem consisting of a practice that was incompatible with the Convention. It appeared that conditions had improved. This was its conclusion:

"152. On the other hand, the Court takes note of the fact that the respondent State has recently taken certain general steps to remedy the structural problems related to overcrowding and the resulting, inadequate conditions of detention (see paragraphs 89-91 above). By virtue of Article 46 of the Convention, it will be for the Committee of Ministers to evaluate the general measures adopted by Poland and their implementation as far as the supervision of the Court's judgment is concerned. However, the Court cannot but welcome these developments and considers that they may ultimately contribute to reducing the number of persons detained in Polish prisons and remand centres, as well as to the improvement of the overall living and sanitary conditions in these facilities. They cannot, however, operate with retroactive effect so as to remedy past violations. However, as already noted by the Constitutional Court (see paragraph 85 above), in view of the extent of the systemic problem at issue, consistent and long-term efforts, such as the adoption of further measures, must continue in order to achieve compliance with Article 3 of the Convention."

The letter from the Regional Court in Bialystok

[7] The appellant also relies on a letter from the Regional Court in Bialystok to his agents dated 1 December 2009. This is to the effect that if he was extradited, he would be placed in a remand centre in Warsaw before being transferred to another in Bialystok, with the possibility that he would be transferred again during the course of his sentence. None of the prisons referred to in Orchowski v Poland (supra) are referred to in this letter.

The sheriff's decision

[8] The sheriff held that while Orchowski described prolonged and systemic overcrowding of prisons in Poland, no evidence had been produced that would provide substantial grounds for believing that there would be a real risk to the appellant of ill-treatment contrary to article 3 (cf Miklis v Deputy Prosecutor General of Lithuania ([2006] EWHC 1032 (Admin)). It was clear from Orchowski that efforts were being made by the authorities in Poland to alleviate the problem.

[9] The sheriff also relied on the following statement made by this court in Trajer v HM Adv (2009 JC 108) when it refused an appeal against extradition to the Czech Republic.

"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 (para 35)."

The sheriff considered that the letter from the Regional Court in Bialystok did not displace the same presumption in the case of Poland. Applying the test in Miklis v Deputy Prosecutor General of Lithuania (supra), he was satisfied that no such grounds had been made out.

The Framework Decision

[10] The Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States provides (para 13) that:

"No person should be removed, expelled or 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."

The preamble to the Framework Decision includes the following statement:

"10. The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof."

Submissions for the appellant

[11] Counsel for the appellant submitted that the proper approach was that taken by the Strasbourg Court in Saadi v Italy (Application No 37201/06, 28 February 2008) and by the English Court in Miklis v Deputy Prosecutor General of Lithuania (supra). Orchowski gave serious reasons for believing that there was systemic non-compliance with article 3 in the Polish prison system. There was no presumption that prisons of the requesting state complied with the Convention. What had been said about such a presumption in Trajer (supra) was obiter. There had been no detailed discussion of the point in that case. Confidence in a requesting state's judicial system did not extend to its prisons, for which there could be no continuing presumption of compliance. If there was any such presumption, it was displaced by Orchowski. The Court was dealing with a request from a country whose prison conditions had been found by the Strasbourg Court to be in breach of article 3. Orchowski indicated that the problems in the Polish prison system were continuing. The findings in Orchowski were the best available evidence from the most authoritative source. It was reasonable to infer that matters had not improved since then. The letter from Bialystok Regional Court showed that the appellant could be transferred from prison to prison, a practice that, in the view of the Strasbourg Court, could exacerbate a prisoner's problems.

Conclusions

[12] In deciding whether there is a real risk that the appellant's rights under article 3 will be infringed (Saadi v Italy, supra), we have to take into account, in my opinion, both the general situation in the receiving country and the appellant's personal circumstances. The appellant's case rests on the proposition that the Court in Orchowski made authoritative findings in fact about the prison system in Poland and that, in the absence of evidence to the contrary, it is to be inferred from these findings that prison conditions in Poland have not since changed.

[13] I do not accept that approach. The Court in Orchowski was concerned with the question whether the prison conditions that that applicant had suffered constituted a breach of his human rights. It is clear from paragraph 152 of the decision (supra), that the focus of the Court's attention was on the alleged violations of article 3 that the applicant had experienced in the specified jails in which he had been detained in the period 2003-2009.

[14] 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.

[15] The question in this case is not about the prison conditions that the applicant in Orchowski suffered in the seven prisons in which his human rights had been breached; nor is it about the general state of the Polish prison system at the date of the hearing in that case. The findings in Orchowski merely provide a snapshot of the prison conditions that were suffered by that particular applicant during the period then under review. They also show that the Polish Government has improved prison conditions significantly and that the process of improvement is continuing.

[16] The question is what conditions the appellant would suffer if he were to be returned under these warrants (cf Miklis v Deputy Prosecutor General of Lithuania, supra, at para 11). It is relevant to that question that we do not know in what prison or prisons he would be detained.

[17] Nothing in Orchowski gives us substantial grounds to think that there is a real risk that the appellant, if returned to Poland, will be detained in conditions that will violate his article 3 rights (Miklis, supra). The letter from the Bialystok Regional Court discloses only a speculative risk that the appellant might be transferred to a prison where conditions did not comply with article 3. Information of that kind is far short of satisfying the test that we have to apply.

[18] I conclude therefore that the appellant has produced no evidence that would meet the test that applies in this appeal. In my opinion, the sheriff's decision was correct.

Decision

[19] I propose to your Lordship and your Ladyship that we should refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Eassie Lady Paton	[2010] HCJAC 41 Appeal No: XC826/09 OPINION OF LORD EASSIE in APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 by ADAM KROPIWNICKI Appellant; against THE LORD ADVOCATE Respondent: _______

For the appellant: Carmichael QC; Wilson McLeod

For the Lord Advocate: Creally, M McKay; Crown Agent

4 May 2010

[20] I agree that, for the reasons given by your Lordship in the chair, this appeal should be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Eassie Lady Paton	[2010] HCJAC 41 Appeal No: XC826/09 OPINION OF LADY PATON in APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 by ADAM KROPIWNICKI Appellant; against THE LORD ADVOCATE Respondent: _______

For the appellant: Carmichael QC; Wilson McLeod

For the Lord Advocate: Creally, M McKay; Crown Agent

4 May 2010

[21] I agree that, for the reasons given by your Lordship in the chair, this appeal should be refused.