Michailovas, Viktoras and The Republic of Lithuania
| Jurisdiction | Northern Ireland |
| Court | Queen's Bench Division (Northern Ireland) |
| Writing for the Court | McCloskey LJ |
| Judge | McCloskey LJ |
| Judgment Date | 21 May 2021 |
| Neutral Citation | [2021] NIQB 60 |
| Date | 21 May 2021 |
1
Neutral Citation No: [2021] NIQB 60
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC11431
ICOS:
Delivered: 21/05/2021
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:
VIKTORAS MICHAILOVAS
Appellant
-v-
THE REPUBLIC OF LITHUANIA
Respondent
________
Before: McCloskey LJ and McFarland J
_________
Representation
Appellant: Mr Barry Macdonald QC and Mr Sean Devine, of counsel, instructed by
Wilson Nesbitt Solicitors
Respondent : Mr Tony McGleenan QC and Ms Marie-Claire McDermott, of counsel,
all 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
2
V. The April 2020 Assurance 41 - 46
VI. The April 2020 Assurance Construed 47 – 53
VII. The November 2020 Assurances 54 – 57
VIII. Legal Framework 58 – 79
IX. The Recent English Decisions 80 – 87
X. The First Instance Decision in Mr M’s Case 88 – 91
XI. The Article 3 ECHR Appeal: Both Appellants 92 – 113
XII. Mr M’s Art 3 ECHR Appeal: Our Conclusions 114 – 118
XIII. Mr M: The Article 8 ECHR and Related Grounds 119 – 137
XIV. Procedural Issues 138 – 139
XV. The Appellate Court’s Powers 140 - 149
XVI. Our Conclusions 150 – 152
Addendum 153 - 158
[Appendices omitted from this reported version
1. Case chronology
2. The NI Lithuanian Group of Cases
3. Extradition Act Provisions
4. Schedule of Assurances]
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/State”.
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”
[** There is a separate judgment in each case]
McCLOSKEY LJ (giving the judgment of the court)
Preamble
The hearing of this appeal on 17 February and 19 March 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.
3
I. Overview
[1] The appellants challenge the decision and orders of the County Court for the
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.
[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 M’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. As already noted, it is common case that the Article 3 ECHR issue
applies without distinction to both appeals.
[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 judgement 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 by exposing them
to a real risk of inhumane treatment by reason of prison conditions in Lithuania, in
contravention of section 21 of the Extradition Act 2003 (the “2003 Act”) and also, it
would seem, 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,
invited 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 present appeals demonstrate and by
illustration only, any Article 8 ECHR ground of appeal will inevitably be fact specific
in nature. Such an issue arises in the case of Mr M only.
II. The Eleven Cases
[7] It is convenient to note here a useful table, provided by the respondent state
at the court’s request. This is reproduced at Appendix 2. It details, as regards each of
the requested persons concerned, the date of the EAW, the date of their arrest, the
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2 cases
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Prosecutor General's Office (Lithuania) v Michailov
...v Prosecutor General's Office of the Republic of Lithuania [2024] EWHC 33 at paragraph 38. The Northern Ireland case of Michailovas v Lithuania [2021] NIQB 60, relied on by the respondent, is clearly not in accord with the judgments in this jurisdiction. It does not begin to show that those......
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Minister for Justice v Vladislav Silko
...report of the United States Department of Justice from 2020. He also refers the Court to Viktoras Michailovas v the Republic of Lithuania [2021] NIQB 60, a decision of the High Court of Northern Ireland. Relying on those two documents the Respondent says there are reasonable grounds for the......
