Evaldas Urbonas v The Prosecutor General's Office of the Republic of Lithuania

Hearing date: 22 November 2022

Approved Judgment

This judgment was handed down remotely at 10.30am on 12 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lord Justice LewisandMcGowan J.handed down the following judgment of the court:

INTRODUCTION

These three appeals concern decisions of the Westminster Magistrates' Court to order the extradition of the three appellants to Lithuania. The sole ground of appeal now pursued in each of the three cases is that the return of the appellants to Lithuania would involve a breach of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) because there is a real risk that the Lithuanian authorities will fail to provide reasonable protection for the appellants from violence or other ill-treatment by other prisoners in the Lithuanian prison system. In particular, the appellants rely on the published findings of the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) published on 23 February 2023 (“the 2023 CPT Report”). That report was published after the decisions of the district judge in the cases of Mr Urbonas and Mr Zemaitis and, although published one day before the judgment in Mr Surpickij's case was handed down, was not considered by the district judge in that case. Consequently, the courts below did not deal with the 2023 CPT Report in their judgments. The appellants appeal on the basis that, if that report had been before the district judge in each of these cases, the decision of the district judge would have been different and extradition would not have been ordered because there were substantial grounds for believing that the appellants would be at risk of treatment in the Lithuanian prison system which would contravene Article 3 of the Convention. McGowan J. granted permission in all three cases for that ground of appeal.

In brief, the Lithuania authorities seek the extradition of Mr Urbonas for prosecution for an offence of causing bodily harm by intentionally stabbing another person. The details of the alleged offence are set out in a European Arrest Warrant (“EAW”) dated 10 May 2022. The Lithuanian authorities seek the extradition of Mr Zemaitis for two offences. One involved stealing, while acting with a group of accomplices, a property of high value (namely a BMW car with an estimated value of 14,000 euros); the other involved an alleged assault of his partner. The details of the alleged offences are set out in an EAW dated 3 May 2022. The third appellant, Mr Surpickij, has been convicted of offences of robbery, manslaughter and theft. The outstanding total period of imprisonment for those offences that remains to be served is 18 months. The Lithuanian authorities seek his extradition by an EAW issued on 13 September 2022 to serve that term. District judges in each of the three cases ordered the extradition of the appellant.

THE LEGAL FRAMWORK

The appellants are subject to EAWs which are governed by Part III of Title VII of the Trade and Co-operation Agreement between the European Union and the United Kingdom. The European Union (Future Relationships) Act 2020 (“the 2020 Act”) implements that agreement into domestic law. Member States of the European Union are designated as Part 1 territories for the purposes of the Extradition Act 2003 (“the 2003 Act”) by virtue of section 11 of the 2020 Act which inserts those territories into the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003. By virtue of those provisions, Lithuania is a Part 1 territory for the purposes of the 2003 Act and extradition to Lithuania is governed by the provisions of that Part of the 2003 Act. Extradition may not be ordered if that would be incompatible with the Convention rights of the individual concerned (see section 21 and 21A of the 2003 Act).

The material provision of the Convention in the present case is Article 3 which provides that “no one shall be subjected to torture or inhuman or degrading treatment”. The relevant legal principles governing Article 3 are not in dispute and can be stated shortly. Article 3 imposes an obligation on a state not to remove a person to a country where there are substantial grounds for believing that the person would face a real risk of being subjected to ill-treatment contrary to Article 3 in that country. In order to come within Article 3, the ill-treatment must attain a minimum level of severity, which depends upon all the circumstances of the case including the duration of the treatment, its physical and mental effects and, in appropriate cases, the sex, age and health of the victim. In cases such as the present, where the risk of ill-treatment is said to emanate from non-state actors (here other prisoners), such ill-treatment will not constitute a breach of Article 3 unless, in addition, the state has failed to provide reasonable protection against such ill-treatment. Where the requesting state is a signatory to the Convention and a member of the Council of Europe (as is Lithuania, the requesting state in the present case), there is a presumption that that state will comply with its obligations under Article 3 of the Convention. That presumption may be rebutted by clear, cogent and compelling evidence, amounting to something approaching an international consensus, identifying structural or systemic failings. If the benefit of the presumption is lost as a result of such authoritative evidence, the requesting state must show by cogent evidence that there is no real risk of a contravention of Article 3 in relation to the particular requested person in the prisons in which he is likely to serve his sentence. Assurances as to the treatment of individuals may be given by a non-judicial authority and those assurances will then need to be evaluated. See, generally, the decisions of the Supreme Court in R (Bagdanavicius) v Secretary of State for the Home Department[2005] UKHL 38, [2005] 2 AC 668, especially at paragraph 24; Lord Advocate v Dean[2017] UKSC 44, [2017] 1 WLR 2721, especially at paragraphs 25 to 27 and the decision of the Divisional Court in Bazys and Besan v The Vilnius County Court, Republic of Lithuania and another[2022] EWHC 1094 (Admin) at paragraph 13 per Holroyde LJ (with whose judgment Swift J. agreed).

THE BACKGROUND AND EARLIER DECISIONS ON INTER-PRISONER ABUSE

The CPT has made periodic visits to inspect conditions in Lithuanian prisons. It has published periodic reports on those conditions including the issue of inter-prisoner violence and ill-treatment. As this Court has observed, the CPT is a committee operating under the terms of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment (“the Torture Convention”). It is a highly respected body which exists to prevent the ill-treatment of prisoners through dialogue with states (see Bartulis v Panevezys Regional Court (Lithuania)[2019] EWHC 3504 (Admin) at paragraph 26).

Reports of the CPT were published in 2014, 2018 and 2019. Those reports, and particularly that published in 2019, were considered in detail by this Court in Bartulis. The Divisional Court noted that the CPT reported in 2019 that there had been extraordinary levels of inter-prisoner violence, intimidation and exploitation at three prisons, namely Alytus, Marijampole and Praviiskes. The report noted that the CPT had the impression that the only parts of the prisons under the full control of the administration were the punishment blocks: these were frequently used to accommodate prisoners seeking protection from other prisoners and prisoners were punished for refusing to stay in their ordinary units. As the Divisional Court noted, there were a number of factors identified as contributing to that situation. These included the sub-culture among prisoners, staffing levels and the omnipresence of illegal drugs in prisons. The nature of the prison accommodation also contributed to the problem. Prisoners were generally accommodated in open dormitory style accommodation, with low levels of staff. The more such accommodation was used, the more unofficial hierarchies within prisons were able to operate and maintain authority and influence. See generally, paragraphs 39 to 46 and 115 to 117 of the judgment. The Divisional Court noted that the Lithuanian authorities had adopted an action plan in 2018 and described the contents of that plan at paragraphs 46 to 48 of its judgment. Its conclusion was expressed in the following terms:

“118. Therefore, we begin by acknowledging that the problem of the “caste system” and of inter-prisoner violence is real, not fanciful. If the authorities had not made a positive response to the 2019 CPT report, then that would have been a strong indicator that there was a proper basis...