Mikolajek v Regional Court of Kielce Poland

In an extradition appeal based on prison conditions, a person sought by a Council of Europe or European Union member state benefits from a strong presumption that the requesting state will comply with its Convention obligations. To establish a real risk of treatment contrary to Article 3, the appellant must provide clear and cogent evidence of systemic flaws, supported by a significant volume of reports from internationally recognised bodies. The appellant must also identify a new issue not previously considered in the relevant authorities. Without such an issue, the District Judge may deal with the claim briefly by relying on earlier Administrative Court decisions.

The appellant appealed against District Judge Evans’s order of 27 November 2012 for his extradition to Poland under a conviction and accusation European arrest warrant. He challenged extradition under section 21 of the Extradition Act 2003, relying on alleged Article 3 risks arising from Polish prison conditions and on Article 8 family and private life rights. The District Judge had found no cogent evidence of a real risk of Article 3 ill-treatment. The central issues were whether the Article 3 evidence disclosed a new and sufficient basis for challenge, and whether the Article 8 argument had merit.

1. The appeal was dismissed. The specified offences were extradition offences.
2. The Article 3 challenge failed. Applying the guidance in Krolik and Others v the Judicial Authorities in Poland [2012] EWHC 2357 (Admin), there was a strong presumption that Poland, as a Council of Europe and European Union member state, would comply with its Convention obligations. A successful challenge required clear and cogent evidence of systemic flaws, including a significant volume of reports from internationally recognised bodies. An appellant relying on Polish prison conditions also had to identify a new issue not previously considered in the earlier cases.
3. The appellant’s representative had been unable to identify any new factual issue beyond that considered in Krolik. The District Judge was therefore entitled to rely briefly on the previous Administrative Court decisions. The finding that there were no substantial grounds for believing that the appellant faced a real risk of Article 3 ill-treatment disclosed no arguable error.
4. The Article 8 argument had not been raised before the District Judge and was in any event unpersuasive. It amounted to a plea to remain employed in the United Kingdom to support the appellant’s family in Poland and was without merit.
5. A new witness statement raising an unadvanced factual point was inadmissible or otherwise not properly before the court. Points of fact should not be introduced for the first time after the District Judge’s decision.

• High Court (Administrative Court): On 16 January 2013, the appeal against District Judge Evans’s order of 27 November 2012 was dismissed.