Jonas Gerulskis v The Prosecutor General's Office of the Republic of Lithuania
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Mr Justice Garnham |
| Judgment Date | 26 June 2020 |
| Neutral Citation | [2020] EWHC 1645 (Admin) |
| Date | 26 June 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/254/2018 & CO/113/2020 |
[2020] EWHC 1645 (Admin)
TN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dingemans
and
Mr Justice Garnham
Case Nos: CO/254/2018 & CO/113/2020
Peter Caldwell (instructed by Oracle Solicitors) for the First Appellant
Malcolm Hawkes (instructed by ITN Solicitors) for the Second Appellant
Helen Malcolm QC and Hannah Hinton (instructed by CPS) for the Respondent
Hearing date: 16 June 2020
Approved Judgment
Introduction
This is the hearing of two appeals and rolled up hearings (of applications for permission to appeal and the appeal if permission is granted) against orders for extradition to Lithuania made by the Westminster Magistrates' Court. These cases have been listed to be heard together because the cases raise a common issue about assurances and prison conditions in Lithuania.
In addition to the point about prison conditions and assurances, the appellants, Mr Gerulskis and Mr Zapalskis, also contend that both of the judges who ordered their extradition were wrong to do so because extradition would be incompatible with their rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) and so contrary to section 21A(1)(a) of the Extradition Act 2003, and would be disproportionate and so contrary to section 21A(1)(b) of the 2003 Act.
By the conclusion of the written and oral submissions it was apparent that the issues in the appeals and applications of both Mr Gerulskis and Mr Zapalskis are: (1) whether permission to appeal ought to be granted and if so whether there is a real risk of impermissible treatment contrary to article 3 of the ECHR given the assurances provided by Lithuania relating to prison conditions; (2) whether extradition would involve a breach of rights under article 8 of the ECHR; and (3) whether extradition would be disproportionate.
Relevant background and the proceedings below in the case of Mr Gerulskis
Mr Gerulskis appeals against the judgment of District Judge (Magistrates' Court) Blake dated 12 January 2018 ordering his extradition pursuant to an accusation European Arrest Warrant (“EAW”) dated 7 July 2017. Following refusal of permission to appeal on paper, Mr Gerulskis was granted permission to appeal by Johnson J. on the article 8 ECHR point and the issue about prison conditions and assurances was ordered to be heard at the appeal as a rolled up hearing of the application for permission to appeal as well as the substantive appeal if permission is given.
On 15 December 2009 Mr Gerulskis is alleged to have broken the window of a store and entered to steal a lawn mower and three trimmers valued at 2,102.60 euros. The offence is punishable in Lithuania by a maximum of six years imprisonment.
Mr Gerulskis was arrested on 16 December 2009 and a pre-trial investigation was commenced. He was questioned in the presence of defence counsel on 17 December 2009 and released from detention, but thereafter Mr Gerulskis could not be found by the authorities in Lithuania. It was common ground that Mr Gerulskis was not under any form of conditional bail or legal obligation but the information from Lithuania provides that “after his release the measure of coercion was not imposed against J. Gerulskis. Since then, the suspect J. Gerulskis has hid himself from the pre-trial investigation officers.”
Mr Gerulskis said that he was released without bail conditions and was directed to pay money for the damage he had caused. He said that he had paid the money back over the course of a year. Mr Gerulskis said at the time of the offence he had been abusing drugs. He had in the past been imprisoned for carrying out thefts and burglaries to fund his habit.
Mr Gerulskis was listed as wanted on 11 October 2010 and attempts to find him were made. It appears that Mr Gerulskis came to the UK in August 2010, met his partner in 2011 who had two children from a previous marriage, and he and his partner subsequently had two further children together.
In 2013 Mr Gerulskis' parents were questioned about his whereabouts but no significant information was provided. In December 2013 during criminal record checks it was discovered that Mr Gerulskis had committed an offence in the UK. Mr Gerulskis had been convicted of shoplifting shortly after arriving in the UK, and then cautioned for breaking into a motor vehicle and for possession of a bladed article. He has 9 convictions for 18 offences which include theft and offences of failing to comply with requirements of a community order. He has been imprisoned for short periods of time in the UK for some of these offences.
A request for assistance was made on 14 March 2014 and the UK authorities confirmed on 27 January 2015 that the request was being processed. Information on Mr Gerulskis' offending was supplied to the UK on 3 September 2015 and on 7 December 2016 the requesting judicial authority verified Mr Gerulskis' data.
In May 2017 the EAW process was started in Lithuania. The EAW for Mr Gerulskis was issued on 7 July 2017 and certified by the National Crime Agency on 10 August 2017. There was some email correspondence between Mr Gerulskis and the investigator in Lithuania. The investigator asked Mr Gerulskis to contact him saying “there is no civil suit we just need to sentence you” and in a later email asking him to return to Lithuania. Mr Gerulskis suggested paying some kind of fine, making it clear that he was not hiding. The investigator replied saying “we just need to sentence you and that's it you can go back” and Mr Gerulskis replied saying that he was raising four children and his wife was on maternity leave so that he was the only breadwinner.
Mr Gerulskis was arrested on 18 September 2017. He was granted conditional bail and remains on conditional bail.
There was a full hearing on 22 December 2017. Mr Gerulskis gave evidence and evidence was given by a psychologist Dr Esther Rose who had observed Mr Gerulskis and his family. Dr Rose addressed the psychological impact on family members in the event of Mr Gerulskis' extradition and the practical impact on family life. Dr Rose considered that the uncertainty of separation for extradition would aggravate stress for the children and cause significant disruption to the children's attachment relationships.
District Judge (Magistrates' Court) Blake gave judgment dated 12 January 2018. The procedural history was set out. The Judge held that he could not find to the relevant standard that Mr Gerulskis was a fugitive, because no bail conditions were imposed or “coercion was not imposed” on his release after his arrest and interview. The judge noted that a fair trial was possible. Mr Gerulskis had been given an opportunity to resolve the case but Mr Gerulskis had rather hoped it had gone away. He had set up home with his partner and taken on the burden of supporting stepchildren and had children. His absence would be difficult but he had not had a blameless life and the family had coped with his absence in prison previously. There was no bar to extradition by reason of oppression.
In respect of interference with article 8 rights the judge carried out a balance of factors for and against extradition. Factors in favour of extradition were the high public interest in ensuring that extradition requirements were met. Other factors referred to by the judge were: the strong public interest in discouraging the UK being seen as a state willing to accept fugitives from justice and Mr Gerulskis had evaded prosecution by coming to the UK; and his poor record of offending and complying with court orders in the UK. Factors militating against extradition included: his large family who would be affected emotionally and financially by his absence; the delay during which time he had taken responsibility for step children and had children of his own; the offence whilst not minor was not serious; and he had sought help with alcohol and drug addictions.
Relevant proceedings and the proceedings below in the case of Mr Zapalskis
Mr Zapalskis appeals against the judgment of District Judge (Magistrates' Court) Snow dated 8 January 2020 ordering his extradition pursuant to an accusation EAW dated 26 February 2019. Following refusal of permission to appeal on paper, Fordham J. granted permission to appeal on the article 8 ECHR and proportionality point, and directed the issue of prison conditions and assurances to be heard as a rolled up hearing at the same time as the appeal and application of Mr Gerulskis.
In June 2011, it is alleged, Mr Zapalskis with others stole a trailer and on 31 August 2011 he with others (including the owner of the trailer) stole various tools from a garage. There was information on behalf of Mr Zapalskis suggesting that the reason that it was not a burglary was because he was working for the garage owner and had been provided with keys. There is a maximum sentence of up to 3 years imprisonment. Mr Zapalskis was obliged to register at a police station and is alleged to have “hid from trial”. He was announced as wanted in court rulings dated 26 September 2013 and 15 January 2014.
An EAW was issued on 26 February 2019 and certified by the NCA on 16 October 2019. Mr Zapalskis was arrested on 16 October 2019 and remanded in custody where he remains.
In the judgment dated 8 January 2020 District Judge (Magistrates' Court) Snow set out the...
To continue reading
Request your trial
-
Michailovas, Viktoras and The Republic of Lithuania
...were, sequentially: (i) The so-called “Covid caveat” letter of 3 April 2020. (ii) The decision in Gerulskis and Others v Lithuania [2020] EWHC 1645 (Admin), on 26 June 2020. (iii) The two judgments and orders of Belfast County Court, of 27 November 2020 and 30 November 2020. V. The April 20......
-
Adam Wawrzyczek v The District Court in Bielsko-Biala, Poland
...principles. They were recently summarised by my Lord in Gerulskis v Prosecutor General's Office of the Republic of Lithuania [2020] EWHC 1645 (Admin), [63]–[65], in the following terms: “63. There was no material dispute about the applicable legal principles. Section 21A of the 2003 Act re......
-
Dusevicius, Gintaras and The Republic of Lithuania
...were, sequentially: (i) The so-called “Covid caveat” letter of 3 April 2020. (ii) The decision in Gerulskis and Others v Lithuania [2020] EWHC 1645 (Admin), on 26 June 2020. (iii) The two judgments and orders of Belfast County Court, of 27 November 2020 and 30 November 2020. V THE APRIL 202......
-
Olegas Bazys v The Vilnius County Court, Republic of Lithuania
...of 3 April 2020 was considered by a Divisional Court in Gerulskis v Prosecutor General's Office of the Republic of Lithuania [2020] EWHC 1645 (Admin) (“ Gerulskis”). The appellants in that case argued that the court could not have any confidence in assurances provided by Lithuania, having ......