The Supreme Court has sent back to the High Court a challenge to the surrender of Robert Rettinger to Poland, directing that the application be reconsidered using a rigorous test for assessing the risk of inhuman or degrading treatment in prison.
In a judgment delivered on 23 July 2010, Denham J said the High Court had not appeared to apply the required test under Article 3 of the European Convention on Human Rights. The Supreme Court remitted the matter for the High Court to decide whether there were substantial grounds for believing Mr Rettinger faced a real risk of treatment contrary to Article 3 if returned to Poland.
Mr Rettinger was sought under a European Arrest Warrant to serve the balance of a two-year sentence for burglary. He had spent 203 days in pre-trial detention in Poland and was in custody in Ireland from August 2009. The High Court had authorised his surrender, finding the material before it insufficient to establish the objection.
The Supreme Court said the applicant bears the burden of producing evidence capable of establishing substantial grounds for believing there is a real risk. The requesting state may provide evidence to dispel doubts, but that does not shift the burden. The court must examine the risk rigorously, consider all material and foreseeable consequences, and assess conditions at the time of the High Court hearing. The mere possibility of ill-treatment is insufficient.
The evidence identified for the High Court’s consideration included Mr Rettinger’s affidavits, two letters from a District Court judge in Krakow, the European Court of Human Rights’ findings in Orchowski v Poland, and a 2009 US State Department report. The Supreme Court noted there was no adequate evidence before it of the current progress of efforts to remedy prison conditions in Poland. It did not determine whether Mr Rettinger faced the required real risk or whether surrender should ultimately be refused.
The Minister had asked the Supreme Court to vary the High Court’s finding that there was no reason to doubt Mr Rettinger’s account of his earlier prison conditions or to consider that he had exaggerated. The Supreme Court dismissed that notice. It noted that Mr Rettinger had not been cross-examined and that adequate evidence of prison conditions had not been put before the court by the requesting state.
The Supreme Court also asked counsel to address the time Mr Rettinger had spent in custody in Poland and Ireland, for that issue to be considered by a court. The judgment did not itself decide the ultimate surrender application.