Karlis Elmeris v The General Prosecutor's Office, Republic of Latvia

Hearing dates:

October 2021 and 10 February 2022

Approved Judgment

This judgment was handed down by Mrs Justice McGowan remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30 on 29.07.2022

Introduction

Karlis Elmeris, (“the appellant”) is sought pursuant to a European arrest warrant, (“EAW”). The EAW is a conviction warrant. His return is requested to serve a sentence of 3 years and 1 month's imprisonment for drugs offences.

After a hearing at Westminster Magistrates' Court, District Judge Fanning, (as he then was), ordered return for reasons given in his judgment of 17 December 2020.

Leave to appeal was granted by Holman J on 8 July 2021 after a hearing, on ground 1 (articles 2 and 3 of ECHR) and ground 2 (article 8). The crux of the appeal is the potential consequences in detention in Latvia of the appellant's status as a police informant. The primary issue, in simple terms, is whether the prison regime in Latvia can provide safe conditions for his detention.

Proceedings on appeal were delayed to await the outcome of a medical examination as it was suspected at one time that the appellant might have cancer. Fortunately, he does not, and he continues to be treated for an underlying medical condition.

I am very grateful to Mr Haggar for the appellant and Mr Hyman for the respondent for their helpful written and oral submissions.

Legal Framework

The appellant appeals pursuant to s.26 of the Extradition Act 2003. By s.27(2), this court can only allow an appeal if it is satisfied that the decision under appeal is wrong:

“(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided that question in the way he ought to have done, he would have been required to order the person's discharge.”

There is no issue between the parties on the test to be applied. The sole question is: did the district judge make the wrong decision?

It is also accepted that the Framework Decision 2002/584/JHA, (“Framework Decision”), governs the EAW in this case under the transitional provisions.

Article 3ECHR prohibits torture, inhuman or degrading treatment or punishment.Article 2 protects the right to life.Article 8 protects the individual's private and family life. It is a qualified right.Article 8(2) permits necessary and proportionate limitations on those rights for a legitimate aim, namely the prevention of crime.

If there is a risk to the appellant's health and life, it is said to arise from the possible action taken by non-state actors, in other words the inmates of any prison in which the appellant might be held.

Ground 1.

The appellant argues that, as he had provided assistance to the police in Latvia, incarceration in a prison there would put him at undue risk of violence by way of retaliation from which the authorities could not adequately protect him and therefore risk a breach of his article 3 and article 2 rights.

The district judge made a number of findings of fact, he paraphrased the appellant's evidence in extenso in his judgment,

“In 2014 I was in a bad place in my life, selling drugs. I was arrested for this offence and beaten up by the police in a police car. I agreed with the prosecutor that I would receive a suspended sentence. The agreement was finalised in court on I did not need to attend. The agreement was sent to me by the host I received a suspended sentence of two years six months suspended for three years. (In 2015)

Under the suspended sentence I had probation supervision and a curfew which I obeyed the or stop during the term of the suspended sentence, I was caught in possession of drugs and arrested at all stop I was taken to the police station. The police officer said to me, ‘if you help us to catch drug dealers then you will not go to prison and will remain subject to the suspended sentence’.

The police said that, ‘your suspended sentence may be extended to potentially because of a new offence, perhaps by around six month’.. I then signed the papers saying I would assist in the capture of drug dealers. I was told that I would be guaranteed anonymity. I helped the police by staging drug deals with drug dealers I had worked with. The drug dealers received a prison sentence and were in fact told about my status as an informant.

The matter ended up in court on the 6 ^th of February, 2017, the sentence was activated with an additional short period on top.

The prosecutor appealed and wanted some more time to be added to my sentenced the was already added that long 12 ^th of June, 2017, the prosecutor's appeal was unsuccessful.

It then appealed to a higher court myself wanting the sentence to be suspended again. This appeal was unsuccessful in August 2017.

I was aware that I may need to hand myself into prison.

I was receiving threatening text messages they were saying that they would come to attack me in prison because I ‘snitched on them’ to the police will stop I no longer have these messages as they were saved on the same card from three years ago but I no longer have the. I was quite sure that some sort of physical retribution was coming. (He later clarified that all the text messages had come from the same number).

I accept that I was aware my appeal against activation of the prison sentence had failed. Equally, no one came to collect me to take me to prison. I had no information as to how the sentence would be implemented.

In any event I simply couldn't stay because I thought I was going to be either killed or seriously harmed in prison or on the outside.

I'd told my dad and mum who were in the UK but I would come and join them. My mum paid for my ticket.”

In light of this account the judge rightly found that the appellant was a fugitive.

The judge also heard evidence from Mr. Valerijs Ickevics, an experienced lawyer in Latvia and tutor at the Council of Europe. Mr Ickevics told the court that there is a Law on the Special Protection of Individuals, (“Protection Law 2005”) to protect witnesses and participating informants in a case such as this. He further told the court that Article 300 of the Latvian Law on Criminal Procedure lists grounds for the provision of special protection for persons under threat arising out of their testimony against other prison inmates. These provisions include segregation, transfer to another prison, ‘strong control’ (which I take to mean supervision) and separate transportation. The existence and level of a threat will be assessed by the Prosecutor General or his appointee. In addition, s. 31.2(2) and (4) of the Latvian Code on the Execution of Sentences provides that a participating informant whose sentence has been reduced accordingly will be held separately from other prisoners if they request such treatment.

He added the important caveat that staff shortages meant that it was hard to comment on the effectiveness of such measures. It would not be possible to guarantee that such preventative measures as separate detention could be met. All prisons are understaffed and therefore problems with violence continue, particularly arising out of ‘hierarchies’ established by the prisoners themselves. He commented on the conditions in Latvian prisons in general but as it is accepted that Latvia is not required to provide further assurances on prison conditions in general terms, the judge did not find it necessary to determine the adequacy of prevailing conditions in general terms.

The judge made detailed findings of fact as follows;

• The appellant understood that he would benefit from being a participating informant.

• He knew he had committed further offences whilst subject to a suspended sentence and that at the very least he would face the activation of that sentence.

• He chose to participate in the police operation in the hopes that he would benefit from doing so.

• The fact that his benefit was not as great as he had hoped is not the same as his claim that any promise that he would receive another suspended sentence was made and then broken.

• The judge found that he doubted whether the appellant was telling the truth about that ‘promise’. He noted that he had been legally represented. He further noted that the prosecutor appealed against the leniency of the new sentence.

• That the appellant did, in fact, benefit from his cooperation because although the suspended sentence was activated it was not increased in length for his further offending.

• The appellant's dissatisfaction about the imposition of the new sentence was capable of being appealed which he did. That appeal was refused.

• The appellant knew that he was obliged to...