Krolik & Ors v Several Judicial Authorities of Poland

A requested person resisting extradition under a European arrest warrant on Article 3 grounds must establish a real risk of torture or inhuman or degrading treatment. A Council of Europe member state is presumed able and willing to comply with Convention obligations. Mutual confidence gives that presumption added force within the European Union.

The presumption is rebutted only by clear, cogent and compelling evidence. The evidence will ordinarily need to approach an international consensus showing systemic flaws capable of producing Article 3 treatment. Historic prison conditions and individual expert criticism do not suffice where reliable current evidence shows that the conditions causing the earlier breach have been remedied.

Fresh appellate evidence is normally subject to the procedural requirements in Extradition Act 2003, s.29(4).

Six requested persons appealed against orders for their extradition to Poland under accusation or conviction European arrest warrants. Each relied, or sought to rely, on an alleged breach of Article 3 of the Convention arising from conditions in Polish prisons.

Four appellants had raised that issue before District Judge Purdy, who rejected it. The remaining two hearings had been uncontested and the issue was first raised on appeal. The court exceptionally admitted a July 2012 report and addenda prepared by Polish prison monitors, together with later material from the Polish Ministry of Justice.

The central issue was whether that material rebutted the presumption that Poland would comply with Convention standards and established a real risk of Article 3 treatment.

1. All six appeals were dismissed. The appellants had not established a real risk that extradition to Poland would expose them to torture or inhuman or degrading treatment contrary to Article 3.

2. A Council of Europe member state is presumed able and willing to fulfil its Convention obligations unless clear, cogent and compelling evidence proves otherwise. In an extradition case founded on a European Union instrument, mutual confidence makes that rebuttable presumption especially important. The required evidence is of the quality illustrated by a substantial body of material from international bodies and non-governmental organisations, capable of showing systemic flaws rather than minor infringements.

3. The court accepted that fresh evidence on appeal is ordinarily governed by s.29(4) of the Extradition Act 2003 and requires an explanatory statement, as set out in Szombathely City Court v Fenyvesi [2009] EWHC 231. It nevertheless admitted the material exceptionally, in the interests of justice and to give future guidance.

4. The appellants' reports did not begin to meet the evidential threshold. In any event, the evidence showed that the conditions responsible for the earlier Strasbourg finding had been remedied. Polish prisoners were guaranteed at least 3m² of residential cell space; the prison population was generally below capacity; and the criticisms concerning classification, rehabilitation, health care and independent scrutiny did not establish a current systemic Article 3 breach.

5. For future Polish-prison-condition appeals, the requested person must identify genuinely new facts, summarise the supporting evidence, and explain how it meets the required standard. Appeals lacking such material may be listed promptly and dismissed. District Judges may ordinarily deal briefly with an unsupported repetition of the point by relying on the established decisions of the court.

• High Court (Administrative Court): the court dismissed the six extradition appeals in [2012] EWHC 2357 (Admin).
• District Court: District Judge Purdy rejected the Article 3 prison-conditions challenge in four cases. In the other two cases the extradition hearings were uncontested and the point was first raised on appeal.