Court reverses order for extradition of man to Poland

 

THE SUPREME Court has overturned an order for the extradition of a man to Poland after the judges heard evidence about overcrowding in prisons in that country.

The ruling is seen as having important implications for persons opposing extradition to other jurisdictions on grounds of a “real risk” that their rights under the European Convention on Human Rights not to be subject to inhuman and degrading treatment will be breached.

The three-judge court noted overcrowding in Polish prisons had been found for many years to be incompatible with article 3 of the European Convention on Human Rights, which provides that a person shall not be subject to torture, inhuman or degrading treatment or punishment. It also noted various reports had found the situation had improved in recent years.

Some 160 cases alleging overcrowded and insanitary conditions in Polish prisons are pending before the European Court of Human Rights, which last year upheld a Polish prisoner’s claim of being detained in inhuman and degrading conditions.

The Supreme Court yesterday overturned the order for surrender of Robert Rettinger and directed the High Court to reconsider the matter in accordance with a test and principles laid down by the Supreme Court.

The High Court must carry out “a rigorous examination” to assess whether Mr Rettinger faced a “real risk” of being subject to inhuman and degrading treatment if surrendered and did not appear to have applied such a test, the court found.

Mrs Justice Susan Denham also asked counsel to consider that Mr Rettinger was wanted in Poland to complete a two-year sentence for burglary, was in pre-trial detention in Poland for 203 days and has been in custody here under a European arrest warrant for almost a year.

Mr Justice Nial Fennelly noted the Supreme Court was in this case considering, for the first time, the standard of proof to be applied in European arrest warrant cases where a person alleged they would be subject to inhuman and degrading treatment.

An Irish court must not surrender a person who can show “reasonable grounds” for believing they would be subject to inhuman or degrading treatment, he said.

A person making such a claim did not have to prove they would “probably” suffer inhuman and degrading treatment. The Irish courts had to inquire into the level of danger to which a person would be exposed and it was enough for a person to establish a “real risk” they would be subject to such treatment.

The time for consideration whether there was a “real risk” was the time of likely surrender to Poland.

The proceedings arose from claims by Mr Rettinger that he would be subject to inhuman and degrading conditions if extradited to Poland.

When previously jailed there, he claimed he was kept in a small cell with six others which had an open toilet. He said the prisoners had to eat their meals there, were allowed out for just one hour daily and could shower just once weekly.

The High Court last May ordered the extradition of Mr Rettinger but certified two points of law arose from the case for determination by the Supreme Court.

Those points related to the onus of proof concerning an apprehended breach of article 3 rights and whether a person opposing surrender on such grounds had to prove a “probability” they would suffer inhuman and degrading treatment.

In separate judgments yesterday, with which Mr Justice Joseph Finnegan agreed, Ms Justice Denham and Mr Justice Nial Fennelly allowed the appeal and returned the case to the High Court.

Mrs Justice Denham said the High Court, in reconsidering the matter, should consider all the material before it and, if necessary, other material such as reports of independent international human rights organisations.

The court should rigorously examine if there was a real risk of being subjected to inhuman and degrading treatment and the foreseeable consequences of surrendering a person.

The burden of proof lay on the person opposing surrender to produce evidence proving there were substantial grounds for believing there was a real risk that they would be subject to treatment contrary to article 3. A state seeking surrender was entitled to seek to dispel such claims by its own evidence.

The judges dismissed an application by the Minister for Justice to find the High Court erred in holding there was no reason to doubt what Mr Rettinger had said about the prison conditions in which he was held.

Poland had failed to put any adequate evidence before the court of the conditions of its prisons and Mr Rettinger was not cross-examined on his affidavit, they noted.