Mikolajek v Regional Court of Kielce Poland [2013] EWHC 251 (Admin)

Case No CO/12897/2012[2013] EWHC 251 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 16 January 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SIMON
Between
MAREK MIKOLAJEKAppellantv
Between
REGIONAL COURT OF KIELCE POLANDRespondent
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 U Bhatt (instructed by Guney Clark and Ryan, London) appeared for Appellant for The Respondent did not appear and was not represented
J U D G M E N T
[1]MR JUSTICE SIMON: This is an appeal from the decision of District Judge Evans, made on 27 November 2012, in which he ordered the appellant's extradition to Poland on a conviction and accusation European arrest warrant issued by the respondent court on 17 August 2012. There is no issue that the specified offences are extradition offences and it is convenient to take them in chronological order.[2]Offence 3 relates to a serious robbery committed on 13 October 2007. The appellant was convicted of this offence on 7 January 2009 and was sentenced to a term of four years' imprisonment. He admits he was convicted and sentenced to this term. He now says he appealed this, but does not know the outcome of the appeal. Presumably he did not wait to hear it.[3]Offence 2 is an allegation of robbery committed on 25 April 2009. The appellant was convicted of this offence on 15 January 2010 following his failure to attend his trial. Offence 1 is an allegation of an assault committed on 24 January 2010. The appellant denies that he was involved in this offence.[4]There are two grounds of appeal based in each case on section 21 of the Extradition Act 2003, and an argument that his extradition would be inconsistent with his rights under the European Convention on Human Rights. The first argument relies on the appellant's right under Article 3 (inhuman and degrading treatment) as a result of conditions in the Polish prison system. In relation to this point the Divisional Court in Krolik and Others v the Judicial Authorities in Poland [2012] EWHC 2357 (Admin) made three points which are relevant to this appeal. First, in cases where, as here, the request comes from a Member State of the Council of Europe, and particularly from a Member State of the European Union in relation to a European instrument, there is a strong presumption that the Member State will be able and willing to comply with its convention obligations (see Krolik paragraphs 4 and 5). Secondly, there must be clear and cogent evidence of systemic flaws in the system (see Krolik paragraphs 5 to 6) in the form of a significant volume of reports from internationally recognised bodies. Thirdly, where an appellant wishes to rely on Polish prison conditions in support of an argument under Article 3 he or she must identify a new issue which has not been previously considered in the earlier cases (see Krolik paragraph 10(iv)). If this is not done the District Judge is entitled to deal with the claim briefly by relying on previous decisions of the Administrative Court.[5]This is what happened here. The District Judge noted at paragraph 5 of his judgment that the appellant's representative was not able to identify any new factual issue not considered in the Krolik judgment. In paragraph 8 he said this:
"There is no cogent evidence to support the RP's contention that the Polish prison authority will not provide him with the reasonable level of protection to which he is entitled. There are no substantial grounds for believing that he is at a real risk of being subjected to Article 3 ill-treatment."
[6]In my view there are no grounds for appealing the decision on the basis of Article 3 of the ECHR.[7]The second argument relies on his Article 8 rights to a private and family life. This was not raised before the District Judge and has been raised now in a way which is entirely unpersuasive. It amounts to little more than a plea that he be allowed to continue in employment in this country so that he can support his family in Poland. The argument is without merit and accordingly this appeal is dismissed.[8]MISS BHATT: He also says in paragraph 6 of his witness statement that he was not aware of one of the trials. He says he was not served. I would be grateful if that --

MR JUSTICE SIMON: Which one is that?

[10]MISS BHATT: Paragraph 6 at page 34 of the bundle.

MR JUSTICE SIMON: This is the new statement?

[12]THE CLAIMANT: Yes.[13]MR JUSTICE SIMON: The new statement is inadmissible, is it not? Why is he entitled to raise a point that was not raised in front of the District Judge?[14]MISS BHATT: He says at paragraph 4, page 33, that he did not have the opportunity to give full instructions. I appreciate --[15]MR JUSTICE SIMON: You know the Krolik case. You simply highlighted a further deficiency in your client's claim. It is not appropriate for points to be taken in a witness statement after a decision of the District Judge where it raises a point of fact.[16]MISS BHATT: My Lord, of course. I would just be grateful if it is formally dismissed so that when I inform the client he is aware that I did put everything before you.[17]MR JUSTICE SIMON: I am perfectly happy to say you put everything that was properly put in front of the court. That is a point that was not properly put in front of the court. (Adjourned)[18]MR JUSTICE SIMON: Mrs Bhatt, you are still here. Are you going to address me again?[19]MISS BHATT: I forgot to ask for the assessment order. My solicitors had done some work on the matter--

MR JUSTICE SIMON: Yes, you may have legal aid taxation in relation to that.