Krolik & Ors v Several Judicial Authorities of Poland

Extradition to a Council of Europe state is assessed against the presumption that it can and will comply with the Convention. An Article 3 challenge requires clear, cogent and compelling evidence establishing a real risk of torture or inhuman or degrading treatment. The presumption has particular force in European arrest warrant proceedings.

Challenges based on general Polish prison conditions require evidence of substantial international weight, approaching a consensus, capable of rebutting that presumption. Historic findings of overcrowding do not establish a current risk where the offending conditions have been remedied. Further challenges must identify new factual issues, summarise the supporting evidence and explain its requisite quality. Courts may dispose of repetitive, inadequately supported claims promptly.

Six appellants were sought by several Polish judicial authorities under accusation or conviction European arrest warrants. Artur Krolik, Sylwester Kazmierczak, Piotr Zwolinski and Tomasz Lachowski challenged extradition before District Judge Purdy solely because Polish prison conditions allegedly breached Article 3 of the Convention. The District Judge rejected those challenges in a written judgment dated 12 March 2012. Tomasz Soltan and Daniel Walachowski had uncontested extradition hearings and raised prison conditions only on appeal.

The six appeals were heard together. The appellants supplied fresh reports expressing the personal views of two prison monitors associated with the Helsinki Foundation for Human Rights. The reports alleged shortcomings including overcrowding, inadequate cell space, poor health care and ineffective monitoring. Correspondence from the Polish Ministry of Justice addressed the allegations.

The court considered whether the evidence raised previously unexamined issues, whether it could establish an Article 3 challenge, and how future appeals concerning Polish prison conditions should be handled.

Held, dismissing all six appeals:

1. The ordinary principles governing fresh evidence under section 29(4) of the Extradition Act 2003 required an appellant intending to rely on evidence not adduced before the District Judge to serve a statement explaining the circumstances. Exceptionally, the court admitted the reports in the overall interests of justice. The volume of recurring appeals and the need to clarify the position for future cases justified that course despite the principles in Szombathely City Court v Fenyvesi (paras 3, 15).
2. A Council of Europe state was presumed able and willing to fulfil its Convention obligations unless clear, cogent and compelling evidence established the contrary. An Article 3 challenge required a real risk of torture or inhuman or degrading treatment. The presumption had greater importance when applying a European Union instrument based on mutual confidence. The reasoning in N.S. v Secretary of State for the Home Department, including the distinction between minor infringements and systemic flaws, applied to the Framework Decision underlying Part I of the Extradition Act 2003 (paras 4–7).
3. Rebuttal required evidence of the calibre of a substantial body of reports from authoritative international organisations and NGOs, approaching an international consensus. The appellants’ reports did not begin to meet that evidential standard. That failure alone was sufficient to dismiss the appeals. Independently, even if the reports were treated as evidence of the requisite type, their substance was insufficient to rebut the presumption (paras 6–7, 21–22).
4. The overcrowding conditions underlying Orchowski v Poland had been remedied. The evidence showed that prisoners were guaranteed the Polish statutory entitlement of 3m² of cell space. The CPT’s recommendation of 4m² was a recommendation rather than a requirement. Apart from one day, the prison population remained below capacity. The other Strasbourg cases identified in the reports concerned prisoners with particular medical conditions during periods before 2008; none of the appellants had an identifiable health issue (paras 20(iii)–(v), 22).
5. A lack of rehabilitation programmes or independent monitoring would not, of itself, amount to an Article 3 breach. In any event, the Ministry’s detailed responses addressed several alleged deficiencies. The Ombudsman’s reports and the Ministry’s responses demonstrated independent scrutiny (paras 20(ii), 20(vi), 22).
6. For future appeals, appellants must identify new factual issues, summarise their evidence and explain how it meets the required evidential standard. Appeals would be listed within days. Where both new issues and evidence of the required type were absent, the court would consider hearing the appeal immediately and dismissing it where appropriate. District Judges should require equivalent identification of new issues and qualifying evidence. On failure to provide it, they should ordinarily be entitled to dispose of the challenge briefly by relying on existing decisions (paras 9–10).

Each appeal failed and was dismissed (para 23).

• High Court (Administrative Court). In [2012] EWHC 2357 (Admin) , the court heard the six extradition appeals together, exceptionally admitted fresh evidence and dismissed every appeal.
• District Judge. District Judge Purdy rejected the prison-conditions challenges brought by Krolik, Kazmierczak, Zwolinski and Lachowski in a written judgment dated 12 March 2012. Soltan and Walachowski had uncontested extradition hearings and first raised the issue on appeal. No citation for the decisions below was supplied.