The Supreme Court has allowed Robert Rettinger’s appeal against an order for his surrender to Poland and sent the application back to the High Court for reconsideration. It did not decide whether his surrender should ultimately be refused.
The appeal concerned his claim that prison conditions in Poland could expose him to inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights and section 37 of the European Arrest Warrant Act 2003. Poland’s warrant sought his return to serve the balance of a two-year sentence imposed after a burglary conviction by the Regional Court of Krakow-Krowodrza in 2007.
Rettinger said he had previously been held in an overcrowded cell in Poland, with limited privacy, exercise and access to showers. He also relied on the European Court of Human Rights’ 2009 judgment in *Orchowski v Poland*, which found an Article 3 violation in the conditions experienced by that applicant and identified widespread, probably systemic, overcrowding during the period examined. A District Court judge in Kraków told the High Court that Rettinger would ordinarily be held near his permanent residence there, though a transfer farther away was possible to avoid overcrowding.
The Supreme Court held that the person resisting surrender must provide evidence showing substantial grounds for believing there is a real risk of Article 3 ill-treatment. The person does not have to prove that such treatment is more likely than not. If sufficiently substantial evidence is produced, the Minister may be expected to respond; the Minister’s failure to answer specific allegations can be relevant to the judge’s assessment. The Court said that evidence of mere possibility is insufficient and that the evidence should relate to the individual’s situation.
The risk must be assessed based on circumstances at the time surrender is being considered. The Court noted that *Orchowski* addressed conditions up to mid-2008 and recorded steps Poland had taken to address overcrowding. It said the High Court could receive further evidence, including evidence clarifying the conditions Rettinger would face if surrendered.
The Supreme Court therefore remitted the entire application to the High Court to reconsider under the clarified standard. It also dismissed the Minister’s notice to vary, which challenged the High Court judge’s view that there was no reason to doubt Rettinger’s affidavit evidence. The remittal left the ultimate surrender decision for the High Court.