The case of Krolik v Polish Judicial Authorities [2013] 1 WLR 490; [2012] EWHC 2357 (Admin) has, at times, been a thorn in the side to extradition practitioners. In 2013 the then President of the QBD and later Lord Chief Justice, Sir John Thomas (as he then was) began his attack on prison conditions arguments in six conjoined Polish cases. In his judgment he came up with the need for an “international consensus” in order to argue against extradition in Article 6 prison conditions cases. Sir John wanted as far as possible to close down prison condition arguments that had proliferated and make them significantly more difficult to argue.
It has taken many cases to chip away at the international consensus test but in January in the case of Yilmaz and Yilmaz v Turkey [2019] EWHC 272 (Admin) Bean LJ and Ouseley J dismantled much of the test. The judgment of the Court bears the hallmarks of the very best of Mr Justice Ouseley’s pronouncements. His recent retirement from the High Court Bench will leave a hole in the jurisprudence of extradition. The Court examined the test and removed much of its force.
They made 4 clear observations about Krolik :
1. That what is required is clear, cogent and compelling evidence showing not that the fugitive will be subjected to torture or inhuman or degrading treatment if returned to the Requesting State but that there is a real risk that he will suffer such treatment.
2. That the language of paragraph 5 of Krolik indicates that the presumption is stronger in the case of an EU Member State than in the case of other member states of the Council of Europe
3. Krolik was a judgment in six appeals raising the issue of prison conditions in Poland following a long series of decisions of the High Court on the same issue. It was not a case in which there was a need to seek assurances or further information from the Judicial Authority or Requesting State. Such assurances or further information have been sought in several recent cases involving EU countries including, for example, France (Shumba) [2018] EWHC 1762 (Admin)) and Portugal (Mohammed) [2017] EWHC 3237 (Admin)), neither of them subject to a pilot judgment. In Florea v Romania [2014] EWHC 2528 (Admin) the Court observed that the absence of a pilot judgment does not negate the existence of systemic or structural difficulties in the prison estate of the Requesting State.
4. That although an "international consensus" of a real risk of treatment in breach of Article 3, or something approaching it, is one way of rebutting the presumption, it is not the only way. They noted the different wording used by the CJEU in Aranyosi [2016] QB 921 as to when it is appropriate to seek assurances or further information from a Judicial Authority.
In Aranyosi the CJEU did not adopt any international consensus test, preferring instead an evidence based approach. Stating that: (Paragraph 89)
"To that end, the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN."
As a result it can now be said that Krolik is not the dominant case in Article 3 extradition prison conditions cases. Much of its force has been diminished. Evidence is now the key issue not an international consensus. There is no need for a pilot judgement or any proscribed type of evidence. David Josse QC represented both Appellants in this case and Ben Keith represented the Appellant Veli Yilamaz.
David Josse Q.C. is a barrister specialising in extradition, human rights, international war crimes and serious crime, both nationally and internationally. David is ranked in Chambers and Partners and the Legal 500 for Extradition and International law.
Ben Keith is a barrister specialising in Extradition, Immigration, Serious Fraud, Human Rights and Public law. He has extensive experience of appellate proceedings before the Administrative and Divisional Courts, as well as applications and appeals to the European Court of Human Rights (ECHR) and United Nations. He has significant expertise in the challenge of INTERPOL Red Notices. He is ranked in Chambers and Partners and Legal 500 in the top tiers.
