Nowak v District Court in Koszalin Poland [2009] EWHC 3519 (Admin)

Case No CO/2567/2009[2009] EWHC 3519 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 20 November 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE HICKINBOTTOM
Between
NOWAKClaimantv
Between
DISTRICT COURT IN KOSZALIN POLANDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss Rebecca Hill (instructed by Kaim Todner) appeared for ClaimantMr Ben Watson (instructed by Crown Prosecution Service) appeared for Defendant
J U D G M E N T

LORD JUSTICE MOSES:

[1]This is an appeal against an extradition order of Senior District Judge Workman dated 12 March 2009. He ordered this appellant's extradition to Poland to stand trial on four offences: one of theft of a motor car, one of robbery, one of wounding by stabbing and one of fraud.[2]The appellant is a Polish citizen. He now appeals against the order of the senior district judge on the ground that his extradition is not compatible with his rights under Article 2 of the European Convention on Human Rights in that hat there is a real risk that he will be killed by non-state actors and the Polish state will not afford him reasonable protection. He also contends that his extradition is not compatible with his rights enshrined under Article 3 in that there is a real risk that he will be subjected to inhuman and degrading treatment at the hands of non-state actors and the Polish state will not afford him reasonable protection. Further, invoking the same Article 3, he contends that there will be a real risk he will be subjected to such treatment at the hands of the Polish state itself.[3]It is contended that this court should exercise its power pursuant to Section 27 (3) of the Extradition Act, because the senior district judge ought to have decided the question of whether the appellant runs a risk of breaches of either Article 2 or Article 3 differently and that in those circumstances he would have been required to order the discharge of this appellant.[4]The essential argument which it is contended the senior district judge should have decided the other way is that he will be exposed to a risk from a gang known as the Zapasników gang or Wrestlers who exercise such power, both through violence and threats on state agents within Poland, as to expose this appellant to the risk of both serious violence or, worse, death. As the senior district judge accepted, the fear arose out of the activities of this appellant in entering into a partnership with a man called Ireneusz Jonski to purchase and manage a hotel and leisure resort. For that purpose he borrowed money from a group of men. The money was gambled away by his business partner and on their failure to return that money he was subjected to threats and a number of attacks causing both injuries and loss of consciousness. His German Shepherd dog was shot. He believed - and it was accepted that he believed - that this was because the money had been borrowed from the gang I have identified.[5]During the course of this application the matter has come before this court on two separate occasions. Particularly, the matter caused concern to Lord Justice Leveson and Mr Justice Wilkie once it transpired that the senior district judge had failed to deal with certain aspects of the evidence upon which Mr Nowak relies.[6]The claimant before us relied upon what he contended to be three important omissions with which this court failed to deal. First, the district judge failed to deal with evidence from the claimant, not only that he had been attacked by members of those whom he believed to belong to the gang Zapasników but he had been taken, once in custody, by prison officers to members of the gang in order that they should impose punishment upon him. Thus he had not only been subjected to threats whilst in custody but actually had been exposed to violence.[7]The judge, when giving his decision ordering the extradition on 12 March 2009, made no reference to that evidence. He noted, as was correct, that the claimant had served a period of imprisonment between August and November 2004, but said:
"He makes no complaint about any threats or violence during that time."
When reaching his conclusion in paragraph 16, he said:
"Whilst the defendant may well hold that belief, [that he would be exposed to torture or to inhuman or degrading treatment in prison] I have no evidence of any real or immediate risk to his life and when I take into consideration the fact that he was not attacked whilst in prison, the lapse of time since the events of 2004 and the assurances given by the head of the criminal department of the District Court of Koszalin I am not satisfied that there are substantial grounds for believing that if extradited the defendant faces a real risk of Article 2 and 3 mistreatment."
[8]The district judge failed to record that the claimant had indeed given evidence contrary to the district judge's conclusion of threats with violence whilst in prison. The district judge had accepted the claimant's evidence about other violence although not accepted that his belief as to the source of the violence was in fact well founded. The judge ought to have but failed to deal with that evidence I have identified.[9]The second omission relates to evidence before the district judge from Mr Szal and Mr Subzda. That evidence was said to lend itself to allegations of complicity by State agents within Poland and an inability or unwillingness to protect this claimant. Both those witnesses gave evidence that they had been forced by the police to make statements against this complainant in relation to the offences which he faces were he to be extradited. The evidence was primarily advanced for the purposes of an abuse argument which was at that stage being advanced before the senior district judge. Again the district judge makes no reference to that evidence that was before him and was debated before him.[10]The third omission relates to evidence that this claimant's partner Ireneusz Jonski had been killed by the gang named by this claimant. His father Andrej clearly believed that he had been murdered. There was evidence of that before the senior district judge but he made no reference to it in his decision.[11]All those three failings must be considered, so Mr Alan Jones QC contended, in the context of what was described as another disturbing element in the case. Part of the evidence in the case was that this claimant's partner Blanka Zalewska had been detained and beaten whilst in prison for the purpose of forcing her to make a statement against the claimant. The response of the Polish authorities in a letter dated 18 June 2009 was that there was no information relating to Blanka's alleged statement and no documents to confirm that she had been held in prison. It is therefore, as Mr Jones contended, disturbing to note that that letter was written despite the fact that there was in existence a letter, authenticated by the district prosecutor, dated 5 April 2005 which confirmed that a decision had indeed been made in relation to Blanka Zalewska that she should be in temporary custody from 18 February 2005 although she was subsequently released after a period of three months from that temporary preventative custody. That, submits Mr Jones, demonstrates the unreliability of evidence or statements made on behalf of the Polish authorities.[12]The principles which govern extradition in relation to Part 1 cases have now been comprehensively considered in a number of authorities of this court and of higher Courts in relation to Article 3. The presumption will be that in a case of a country nominated under Part 1 of the Treaty that country will comply with its obligations to protect human rights of its citizens. If authority is needed yet again for that proposition it can be found in a case which did not concern a European Union country, that is, Gomez and Goodyear v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038, paragraph 35.[13]The essential question in this application is whether the claimant will be at risk of a breach of his rights enshrined in Article 2 and Article 3, notwithstanding the presumption that Poland will comply with its obligations under the European Convention of Human Rights.[14]The senior district judge accepted that this claimant had been attacked but declined to conclude that the source of that attack was the gang named and identified by this claimant. In response to the assertions of the claimant, the authorities in this country sought information from the courts in Koszalin as to the truth or otherwise of the belief which this claimant held, namely that it was the Zapasników gang which had threatened him and beaten him.[15]The District Court in Koszalin on 26 August 2008 gave written information from the head of the criminal department that that gang posed no threat to this claimant. It reported that they knew of no connection between this claimant and the gang.[16]The district judge was entitled to rely upon that evidence in rejecting the claimant's case that it was that gang which, in truth, was the source of violence. During the course of his decision the judge referred to - and rejected - evidence given on behalf of the claimant from Mr Damrac. Mr Damrac's evidence related to the evidence of the power of the gang Zapasników, its name indicating power and strength. Mr Damrac gave evidence of the wide reach of the power and the sort of crimes in which they were involved. He said:
"I believe that if [the claimant] borrowed money from these people and not repaid it, then his life is very much in danger."
That evidence was not therefore in conflict with the evidence upon which the district judge relied, but the senior district judge was entitled to rely upon the evidence and the assurance of the head of the criminal department.[17]The respondent challenges the truth or otherwise of accounts the claimant has given in relation to the attacks upon him and the killing of his dog and certainly the evidence of his partner. But in my judgment that does not matter. The district judge did accept his evidence but, importantly, did not accept that he was correct as to his belief that the source of violence was the gang which he identified.[18]In those circumstances the omission to deal with the evidence of the attacks in prison and of the evidence that he gave to the actions of the prison officers does not lead to an alternative conclusion that he will not be protected from any attacks from a gang should he be extradited to Poland. There was in reality no finding at any stage that this claimant was involved with that gang and, on the contrary, evidence that he was not.[19]So far as the omissions to deal with the witnesses Szal and Subzda, it is correct that they were, so they said, forced to make statements and it is right that the senior district judge failed to deal with that evidence. But there is no reason to think that they either cannot or will not give evidence to that effect in Poland should this claimant face trial there, or any material to suggest that the Polish courts will not take that evidence into account. They have not and have never sought anonymity. In those circumstances it will be open to the claimant to deploy that evidence at his trial.[20]The third omission on which the claimant relied concerned the evidence relating to the death of his former partner Jonski. There is now evidence which has been obtained from the Polish authorities which shows that the local prosecutor's office has undertaken a detailed analysis of the circumstances of Jonski's death. They have analysed how he died and the forensic residue discovered on his death. They record in detail that he committed suicide and the evidence which demonstrates that it was suicide and not murder. In those circumstances his death and the omission of the senior district judge to deal with it do not assist the claimant in establishing that the senior district judge ought to have decided the question of the risk this claimant faced the other way.[21]Finally there is the question of the erroneous information concerning this claimant's partner. The evidence shows that there were potentially different sources of information as to whether she had been in custody or not. But as the evidence now shows, this claimant faced charges brought in three cases by the district court but in one case by the local court. On examination, it appears that Blanka Zalewska was temporarily detained because she was suspected by the local court of being involved in an offence with this claimant and responsible for securing his escape. It was for that that she was sentenced to prison with a temporary suspension for a four-year trial period which led to her release. Thus the information now forthcoming shows, as it did not before, that his partner was involved with this claimant in offences in respect of which he faces trial. In those circumstances the Polish authorities - the local and district court - had no motive whatever for concealing the fact that she had been in detention. There was indeed no possible reason to conceal that fact. That, to my mind, demonstrates that there was indeed an innocent error in providing mis-information to the claimant's advisers.[22]In my judgment, whilst of course the presumption in favour of a country nominated for the purposes of Part 1 must yield to the facts of any particular case, there never was, and still is not, evidence of connection to the gang named by the claimant, a gang which is said to have infiltrated the Polish police and prison service with power to influence them and thus remove the protection, to which he is entitled, against violence from non-state actors. Nor is there evidence - or ever was - that they would instigate breaches of rights by the state authorities themselves. Those authorities have reiterated on a number of occasions that they have no information of any facts or circumstances to suggest that this claimant is in any danger from the gang Zapasników.[23]Accordingly, whilst it is true and regrettable that the senior district judge failed to deal with all the evidence on which the claimant relied, that evidence does not lead me to the conclusion that he ought to have decided the questions in this case differently. Accordingly, there is no alternative but to dismiss this appeal.

MR JUSTICE HICKINBOTTOM: I agree.

[25]MISS HILL: I hope your Lordships have received a copy of a short note prepared this morning.

LORD JUSTICE MOSES: No.

[27]MISS HILL: I will hand up two copies. They are addressing legal aid in this case and particularly the capacity of this court to back-date legal aid to the date of application for a junior and silk. I believe there was some issue as to this and it is for that reason that Mr Jones has submitted the document. (Pause) My application is for detailed legal aid assessment under the legal aid order to be back-dated to the date of an application for both counsel.

LORD JUSTICE MOSES: Why would it be back-dated? That would merely be saying that it is to run from the date the application is made. It does not have to back-dated, does it? It is just saying that it covers the date from when the application was first made. I do not like the idea of back-dating it.

[29]MISS HILL: It was a concern of the court that preceded your Lordship.

LORD JUSTICE MOSES: I am not so concerned. It is obviously right that Mr Jesurum should get his costs as well. I shall make such order as will achieve that result which I see as making sure that the application was granted from the time of the original application. I am not sure technically that is back-dating. That is just saying how wide it should cover and it should cover everything.

[31]MISS HILL: Your Lordship is quite right.

LORD JUSTICE MOSES: Anyway our intention is to ensure that he gets paid.