Nowak v District Court in Koszalin Poland

In extradition cases involving a country designated under Part 1, the starting point is a presumption that the country will comply with its obligations to protect Convention rights. The presumption must yield to the facts where substantial grounds establish a real risk of treatment contrary to Articles 2 or 3. Alleged risks from non-state actors require evidence connecting the individual to the threat and showing that state protection will be unavailable or ineffective. Material omissions by the extradition judge do not require appellate intervention where, on examination of the omitted evidence and the evidence as a whole, the statutory decision would remain the same.

The claimant appealed against an extradition order made by Senior District Judge Workman on 12 March 2009. He was wanted in Poland to stand trial for theft of a motor car, robbery, wounding by stabbing and fraud.

He argued that extradition would expose him to a real risk of death or inhuman or degrading treatment contrary to Articles 2 and 3 of the Convention. The alleged risks arose from the Zapasników, or Wrestlers, gang, which he said could influence Polish police and prison officers, together with alleged mistreatment by state authorities.

The appeal concerned three alleged omissions in the district judge’s treatment of evidence, and allegedly unreliable information concerning the claimant’s former partner.

1. Appeal dismissed. The omissions in the senior district judge’s decision were regrettable, but they did not require a different conclusion on the risks said to arise from extradition.

2. For a country designated under Part 1, the starting point is a presumption that it will comply with its obligations to protect Convention rights. That presumption is not conclusive and must yield to the facts of the particular case. The governing question was whether, notwithstanding the presumption, there were substantial grounds for believing that the claimant faced a real risk of treatment contrary to Articles 2 or 3. The presumption was supported by Gomez and Goodyear v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038, paragraph 35.

3. The district judge was entitled to accept that the claimant had suffered attacks while rejecting his belief that the Zapaśników gang was their source. There was no finding, and no sufficient evidence, connecting the claimant with that gang. The evidence from the Koszalin authorities that they knew of no such connection could properly be relied upon.

4. The omitted evidence that the claimant had been exposed to violence in custody did not establish a real risk on extradition because it did not connect the alleged violence with the identified gang. Evidence from witnesses who said they had been forced to make statements could be given at the Polish trial, and there was no material showing that the Polish courts would fail to consider it. Evidence concerning the death of the claimant’s former partner was also insufficient, in light of the Polish investigation and evidence indicating suicide.

5. The apparently inconsistent information concerning the claimant’s partner was explained by evidence that she had been detained in connection with related offences. It was therefore capable of being treated as an innocent error, rather than evidence of deliberate concealment by the Polish authorities. The extradition order consequently stood.

• Senior District Judge’s Court: Senior District Judge Workman ordered the claimant’s extradition to Poland on 12 March 2009.
• High Court (Administrative Court): The Divisional Court dismissed the appeal against that order. Lord Justice Moses gave the judgment and Mr Justice Hickinbottom agreed.