Arminas Bartulis v Panevezys Regional Court (Lithuania)

Hearing date: 16 October 2019

Approved Judgment

Introduction

This is a judgment of the Court to which we have both contributed. The three appeals before the Court concern five extradition requests from Lithuania. In each case, the Appellant is a Lithuanian national sought to be returned pursuant to a European Arrest Warrant [“EAW”] to undergo trial or serve sentences for crimes in respect of which sentences have already been passed. This is a judgment of the Court to which we have both contributed.

The Appellants and the EAWs have helpfully been presented in tabular form by the Respondents as follows:

The convictions or allegations are various, including fraud, theft, assault and domestic violence. Nothing turns on the nature of the proven or alleged offending for present purposes.

The Appellants' cases came before District Judge Jabbitt in July 2018, and he heard evidence spread over three hearing days. In each case, the point at issue for us is prison conditions and whether those conditions breach Article 3 of the European Convention on Human Rights [“ECHR”], which is for present purposes identical to Article 4 of the Charter of the European Union. In his judgment of 17 September 2018, DJ Jabbitt rejected the Art 3/4 objections to extradition.

In the case of the Appellant Bartulis, there is a separate and individual issue raised. He now claims that his mental health is such that there is a valid objection to his extradition pursuant to Section 25 of the Extradition Act 2003 [“the 2003 Act”]. He was given leave to amend his grounds by Julian Knowles J on 6 March 2019.

The Appellants' case is that conditions in three of the five prisons, known in Lithuanian terminology as post-conviction Correction Houses, are such as to mean there is a real risk of breach of Article 3, if the Appellants are extradited and called on to serve their sentences in one of three such prisons, namely Alytus, Marijampole or Pravieniškes.

All parties accept that the European Arrest Warrant system under the Council Framework Decision of 13 June 2002 [“the Framework Decision”] and Part 1 of the 2003 Act depends on mutual trust and respect between EU Member States, giving rise to a presumption that each Member State will give effective protection to the Convention rights of extraditees.

The Divisional Court has already found that, in relation to pre-trial detention in Lithuania, the presumption has been rebutted (see Jane v Lithuania [2018] EWHC 1122 (Admin) ( Jane No 1)). An assurance of general application was provided dated 7 August 2018 which was considered in Jane v Prosecutor General's Office, Lithuania [2018] EWHC 2691 (Admin) ( Jane No 2). The Appellants were not granted permission to appeal upon the ground of appeal relating to pre-trial detention establishments. The Appellants submit, to adopt the language of European authority, there is cogent, relevant, and reliable evidence in support of the proposition that there is a real risk of detention in inhuman and degrading conditions, if these Appellants are extradited to any one of the three male prisons Alytus, Marijampole or Pravieniškes. Therefore, the Court is invited to initiate the procedure following the well-known authority of Aranyosi and Caldararu C-4044/15, [2016] QB 921.

This matter was listed initially on 9 July 2019, and an amount of evidence prepared going to the Article 3 issue. However, shortly before that hearing, on 25 June 2019, the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment [“CPT”] published a further report on the Lithuanian prison estate [“CPT 2019”]. The Appellants considered this of such significance as to warrant an application to adjourn the hearing and an application that further information should be sought by the Court from Lithuania. We granted the adjournment. The focus of concern in this case is not the widely-litigated question of space available to inmates of prisons, familiar from the case of Muršic v Croatia [2017] 65 EHRR 1. However, the physical conditions in the prisons are relevant. The problem here is the risk of violence amounting to breaches of Article 3 by other inmates of these prisons, and whether the prison authorities in Lithuania can provide adequate protection to extraditees in relation to that risk. That is related to a degree to the “dormitory” accommodation, which forms much of the capacity of these prisons.

In an Order of 15 July, we made the following request of the Lithuanian authorities:

“The Court giving consideration to the risks of Article 3 breach said to arise from the material presently before the court, but having as yet made no findings as to those risks, requests further evidence, assurances and/or guarantees, directed to ensuring that none of these Appellants, if extradited, will serve a sentence of imprisonment post-conviction:

i. In a dormitory block, or

ii. In cell accommodation sharing access to common parts of the prison with other inmates living in dormitory blocks, or

iii. In cell accommodation sharing access to common parts of the prison with inmates who have been re-settled in cell accommodation because they are adjudged to be “inmates, making a negative influence to the other inmates (leaders of informal prison hierarchy and its handymen)”, or

iv. In disciplinary punishment cells subject to the “KTP” regime, or

v. In accommodation with a minimum space allocation of no less than 3 square metres per person;”

As will become clear in greater detail, further information and assurances had been received from Lithuania by the time the matter came before us on the resumed hearing on 16 October 2019.

The Judgment Below

DJ Jabbitt considered the three cases before us, alongside three others, those of Butinavicius, Dauksas and Manovas. For reasons which need not concern us, those other appeals have fallen away. These conjoined cases were gathered together expressly to consider this aspect of prison conditions in Lithuania.

In a careful judgment, DJ Jabbitt set out the facts relating to each Appellant and the principal submissions made at that stage. We intend to analyse his judgment fairly fully.

As recited by DJ Jabbitt in his useful summary, the individual positions of each of these Appellants is as follows:

“ Bartulis is wanted to serve 7 months 28 days outstanding of an 8 month sentence imposed on 30 March 2017. The EAW issued 8/1/18 was certified 11/1/18. The offences he committed on 02-02-2017 and 05-02-2017 were of domestic violence.

Kmitas is wanted to stand trial for 21 offences of either fraud or forgery. The framework List is marked, “swindling” and “forgery”. The offences were committed between 2005–2010. Total benefit: £818,000. EAW issued 24/5/16 was certified 9/6/16.

Ostapec is wanted upon two EAWs.

The first, an accusation warrant issued on 27 January 2017 by the Prosecutor General's Office is based on a ruling of the Vilnius District Court dated 2 September 2016, described as “ruling to change coercive measure – written pledge not to leave and seizure of documents” (box b). EAW 1 is an accusation warrant in respect of 2 offences, arising out of conduct said to have occurred on 4 April 2015. The RP is alleged to have been involved in a serious joint enterprise assault on a named complainant (box e). The offences have been categorised pursuant to Lithuanian law as “violation of public order” and “non-severe Health impairment” (box e), with maximum sentences of 2 years and 5 years respectively (box c). The framework list has not been ticked.

The second warrant is a conviction warrant. He has an 8-month sentence to serve. EAW 2 was issued on 30 January 2017 by a judge of the Vilnius Regional Court. The EAW is a conviction warrant and is based on a judgment of the District Court of Vilnius City dated 24 April 2015 imposing a suspended sentence and a ruling of the same court, dated 11 May 2016, activating the sentence. The RP has been convicted of one offence of stealing a number of electronic items on 14 August 2014 from a named person's apartment, to a total value of €630,61… FWL ticked for “illegal restraint”, “organised or armed robbery” and “extortion”.”

The District Judge noted that all of these Appellants are said to be fugitives. Mr Bartulis is a fugitive having breached the terms of his suspended sentence; Kmitas breached a written pledge not...