Dusevicius, Gintaras and The Republic of Lithuania
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 24 June 2021 |
| Neutral Citation | [2021] NIQB 70 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 24 June 2021 |
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Neutral Citation No: [2021] NIQB 70
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC11557
ICOS:
Delivered: 24/06/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(DIVISIONAL COURT)
___________
ON APPEAL FROM THE COUNTY COURT FOR THE DIVISION OF BELFAST
IN THE MATTER OF THE EXTRADITION ACT 2003
___________
BETWEEN:
GINTARAS DUSEVICIUS
Appellant
-v-
THE REPUBLIC OF LITHUANIA
Respondent
________
Before: McCloskey LJ and McFarland J
_________
Representation
Appellant: Mr Donal Sayers QC and Ms Bobbie-Leigh Herdman, of counsel,
instructed by John J Rice Solicitors
Respondent: Mr Tony McGleenan QC and Mr Stephen Ritchie, of counsel,
instructed by the Crown Solicitor’s Office
_________
INDEX Paragraph
I. Overview 1 – 6
II. The Eleven Cases 7 – 8
III. The Decisions Under Appeal 9 – 11
IV. Evidential Matrix 12 – 40
V. The April 2020 Assurance 41 – 46
VI. The April 2020 Assurance Construed 47 – 53
VII. The November 2020 Assurances 54 – 57
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VIII. This Court’s Request For Further Information 58 – 65
IX. Legal Framework 66 – 87
X. The Recent English Decisions 88 – 95
XI. The First Instance Decision 96 – 100
XII. The Article 3 ECHR Appeal 101 – 122
XIII. The Lithuanian Responses Further Scrutinised 123 – 137
XIV. Our Conclusions 138 – 153
XV. Order 154
XVI. Postscript 155 - 159
[Appendices – omitted from this reported version
1 Agreed chronology
2 The NI Lithuanian Group of Cases
3 Schedule of Assurances
4 Final Article 15(3) Request for Further Information]
Lexicon
The appellants, Gintaris Dusecivius and Viktoras Michailovas, both nationals of
Lithuania: “Mr D” and “Mr M”.
The Respondent and its various emanations are described mainly as “the Lithuanian
Government/authorities”.
The following prisons in Lithuania – Alytus, Marijampole and Pravieneskes – are
described as ’A’, ‘M’ and ‘P’ Prisons respectively.
United Kingdom = “UK”.
Action Plan = “AP”.
The Council of Europe Committee for the Prevention of Torture = “CPT”
Crown Prosecution Service: “CPS”
Charter of Fundamental Rights of the European Union: “the Charter”
Council Framework Decision of 13 June 2002 on the European arrest warrant and the
surrender procedure between member states Date: the “Framework Decision”
Extradition Act 2003: the “2003 Act”
McCLOSKEY LJ (giving the judgment of the court)
Preamble
The hearing of this appeal on 17 February, 19 March and 21 May 2021 was
conducted exclusively by remote means. All three parties and their respective three-
member legal teams were in attendance by this mechanism. Judgment was delayed
by the need to await the requesting state’s reply to the court’s requests for further
information and the parties’ consequential further submissions.
I OVERVIEW
[1] The appellants challenge the decision and orders of the County Court for the
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Division of Belfast dated 27 and 30 November 2020 respectively ordering their
extradition to Lithuania. Leave to appeal to this court was refused by the decision of
the single judge dated 6 January 2021. The appellants renew their applications for
leave. A separate judgment has been delivered in the conjoined appeal, that of
Mr Michailovas ("Mr M”): see [2021] NIQB 60. There is an agreed chronology at
Appendix 1.
[2] In the court below these two cases eventually formed part of a larger group of
11 cases, all involving Lithuanian nationals and the Lithuanian State. This number
grew progressively with the passage of time. As they had certain issues in common
these cases were managed and progressed together. The case of Mr D emerged as the
lead one, followed by that of Mr M. This judgment is confined to Mr D’s appeal.
[3] The litigation history of these two appeals is of particular importance having
regard to the consideration that much material evidence has been generated since
their inception. This history can be traced by reference to the five successive
judgments of Belfast County Court during the period January 2018 to November
2020. Four of these decisions were made in the case of Mr D. The fifth was in the
case of Mr M. It is common case that the Article 3 ECHR issue applies without
distinction to both appeals and others in the broader group.
[4] While the proceedings have become somewhat protracted it is clear that the
several individual segments of delay and related complexities, coupled with the
progressively large number of cases, combined to pose challenges with which the
first instance judge has dealt admirably.
[5] At this stage judgment at first instance has been given in these two cases only.
The generic issue linking all 11 cases is whether their extradition to Lithuania would
violate the requested persons’ rights under Article 3 ECHR/Article 4 CFR by
exposing them to a real risk of inhuman treatment by reason of prison conditions in
Lithuania, in contravention of section 21 of the Extradition Act 2003 (the “2003 Act”)
and also section 6 of the Human Rights Act 1998. Her Honour Judge Smyth resolved
this issue in favour of the Lithuanian State. This court is, in substance, invit ed to
conclude that the judge erred in law in doing so.
[6] The generic issue outlined above is to be distinguished from other issues
specific to individual cases. Thus, as the two conjoined appeals demonstrate and by
illustration only, any Article 8 ECHR ground of appeal will inevitably be fact specific
in nature. Such an issue has arisen in the case of Mr M only.
II THE ELEVEN CASES
[7] There is a useful table, provided by the Respondent State at the court’s
request, reproduced at Appendix 2. It details, as regards each of the 11 requested
persons concerned, the date of the EAW, the date of their arrests, the nature of the
EAW and, finally, the offence/s of which each requested person has been convicted
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Harkin, Kevin Barry and Republic of Ireland
...of the Strasbourg Court in Soering v United Kingdom [1989] EHRR 439, considered in extenso by this court in Dusevicius v Lithuania [2021] NIQB 70 at [138]ff. As stated by Lord Bingham in R (Ullah) v The Special Adjudicator [2004] 2 AC 323 the successful invocation of Article 3 ECHR – “… dem......
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Olegas Bazys v The Vilnius County Court, Republic of Lithuania
...an international consensus, and in my view is insufficient to displace the presumption. I note also that in Dusevicius v Lithuania [2021] NIQB 70 the High Court of Justice in Northern Ireland (similarly constituted) distinguished the appeal on its facts from that of Mr Michailovas, and foun......