Olegas Bazys v The Vilnius County Court, Republic of Lithuania
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mr Justice Swift |
| Judgment Date | 11 May 2022 |
| Neutral Citation | [2022] EWHC 1094 (Admin) |
| Docket Number | Case No: CO/3234/2020 & CO/818/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1094 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde
Mr Justice Swift
Case No: CO/3234/2020 & CO/818/2021
Jonathan Hall QC and Saoirse Townshend (instructed by Taylor Rose MW) for the 1st Applicant
Jonathan Hall QC and Louisa Collins (instructed by Dalton Holmes Gray) for the 2 nd Applicant
Hannah Hinton and Stefan Hyman (instructed by the CPS Extradition Unit) for the Respondents
Hearing dates: 9, 10 February 2022
Approved Judgment
This judgment was handed down by the Judge 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 11:00 on Wednesday 11 May 2022.
Each of these cases raises issues as to prison conditions in Lithuania, and as to the reliability of assurances given by the Republic of Lithuania in the context of extradition proceedings pursuant to Part 1 of the Extradition Act 2003 (“the Act”). Although otherwise unconnected, they have for that reason been listed for hearing together. For convenience, I shall refer to the individual Applicants by their names, and to the Respondent judicial authorities collectively as “the Respondents”.
A. Introduction
(1) The criminal proceedings in Lithuania
It is sufficient, for present purposes, to note the following.
Mr Bazys, now aged 24, was convicted in Lithuania on 16 February 2015 of an offence of rape. Whilst subject to a suspended sentence for that offence he committed an offence of robbery, of which he was convicted on 5 December 2016. His final total sentence was 4 years 9 months' imprisonment, of which all but one day remains to be served.
Mr Besan, now aged 25, is accused of offences of swindling, unlawful connection to an information system and unlawful use of an electronic means of payment or data. Those offences are said to have been committed in early 2018. The charges carry maximum sentences of 3 years', one year's and 6 years' imprisonment respectively.
(2) The extradition proceedings
A conviction European Arrest Warrant (“EAW”) was issued against Mr Bazys by the District Court of Vilnius City on 13 April 2017. It was certified by the National Crime Agency (“NCA”) on 25 April 2017. Mr Bazys was arrested on 18 October 2018, but the extradition case was adjourned because he was then subject to criminal proceedings in this country which ultimately resulted in a prison sentence. He has remained in custody since completing that sentence. On 4 September 2020 his extradition was ordered by District Judge (Magistrates' Courts) (“DJ”) Blake.
One of the issues raised before the DJ by Mr Bazys was that his extradition was barred by section 21 of the Act and article 3 (“art. 3”) of the European Convention on Human Rights (“ECHR”), on the basis that he faced a risk of reprisals in prison from non-state actors, and a risk that the conditions in which he would be detained in Lithuania would infringe his right under art. 3 not to be “subjected to torture or to inhuman or degrading treatment or punishment”. It was submitted on his behalf that conditions in Lithuanian prisons had worsened since they were considered by a Divisional Court (Irwin LJ and Supperstone J) in Bartulis v Lithuania [2019] EWHC 3504 (Admin) (“ Bartulis”), to which I will refer later in this judgment. In a detailed and careful judgment, the DJ set out the evidence and submissions at length, considered Mr Bazys' “vulnerabilities and fragile mental health”, and concluded that there was no real risk that Mr Bazys' art. 3 rights would be infringed. The DJ accepted that there were legitimate concerns with regard to prison conditions in Lithuania, but he noted that Lithuania had addressed the concerns and did not accept the submission that there was any need to seek further information from the requesting judicial authority. He accepted that an assurance given in April 2020 (to which also I refer below) was sufficient to meet any concerns as to the treatment of Mr Bazys.
An accusation EAW was issued against Mr Besan by the Prosecutor General's Office of the Republic of Lithuania on 29 April 2019. It was certified by the NCA on 12 November 2020. Mr Besan was arrested on 12 November 2020 and has remained in custody since that date. On 3 March 2021 DJ Bristow ordered his extradition.
Before the DJ, Mr Besan did not raise any issue under art. 3.
(3) The applications to this court
Mr Bazys' application for leave to appeal against DJ Blake's order was refused on the papers on 3 December 2020. His application was renewed to an oral hearing, but then stayed to await the outcome of another appeal, Bernotas v Lithuania, to which I shall refer shortly. Directions were subsequently given that the renewed application be listed for a rolled-up hearing, with the appeal to follow if leave be granted.
Mr Besan applies for leave to appeal against the decision of DJ Bristow. In his case also, directions have been given for a rolled-up hearing.
Both applicants seek to rely on fresh evidence. Those applications are opposed. If they succeed, the Respondents apply to rely on fresh evidence in response. That application is not opposed.
B. The legal framework, and the relevant assurances
Before coming to the grounds of appeal, it is convenient to summarise the relevant legal principles and then refer, so far as possible in chronological order, to the most important of the case law to which this court was referred, and the relevant assurances which have been given by Lithuania. In considering those assurances, it is necessary to distinguish between remand prisons, which hold those awaiting trial in Lithuania and may also hold, for a period of up to 10 days, an offender who has very recently been convicted; and “correction houses”, in which convicted adult males serve sentences of imprisonment. Many of the convicted prisoners serving their sentences in correction houses are accommodated in dormitory-type blocks rather then cells.
I consider the following principles to be well established by case law including R(Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, Dorobantu v Romania (case C-128/18) (“ Dorobantu”), ML [2018] EUECJ C-220/18PPU, [2019] 1 WLR 1052 and Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14, [2021] 1 WLR 2569 (“ Zabolotnyi”). Extradition will be refused if there are substantial grounds for believing that the requested person, if returned to the requesting state, faces a real risk that he will be subjected to inhuman or degrading treatment in prison such as to infringe his art. 3 rights. However, if the requesting state is a signatory to the ECHR and a member of the Council of Europe, there is a strong presumption that it will comply with its obligations under art. 3. That presumption may be rebutted by clear, cogent and compelling evidence, amounting to something approaching an international consensus, for example in a pilot judgment of the European Court of Human Rights (“ECtHR”) which identifies structural or systemic failings. If the benefit of the presumption is lost as a result of such internationally authoritative evidence, the requesting state must show by cogent evidence that there will be no real risk of a contravention of art. 3 in relation to the particular requested person in the prisons in which he is likely to be detained. An assurance as to the circumstances in which the requested person will be held may be sufficient to exclude any such risk. Where an assurance is given or endorsed by the requesting judicial authority, it must be relied on by the executing judicial authority unless there are specific indications that the detention conditions in a particular prison in which the requested person is likely to be held will infringe art. 3. Where (as in this case) the assurance is provided by a non-judicial authority, it must be evaluated by carrying out an overall assessment of all the information available to the executing judicial authority. There is no rule requiring evidence of any particular type or quality, or setting out any hierarchy of the factors listed in Othman v UK (2012) 55 EHRR 1 (“ Othman”), in carrying out such an assessment.
(1) Jane (no.1)
In Jane v Lithuania [2018] EWHC 1122 (Admin) (“ Jane (no 1)”) the appellant appealed against an order for his extradition pursuant to an accusation EAW. He had contended that there was a real risk that his rights under art. 3 would be infringed because of a threat of violence by a non-state agent and/or because of conditions in Lithuanian remand prisons generally. The Divisional Court (Hickinbottom LJ and Dingemans J, as he then was) reviewed previous case law which showed that there was an international consensus that there was a real risk of treatment contrary to art. 3 in Lukiškes and Šiauliai remand prisons, principally because of overcrowding and very bad living conditions. It therefore became incumbent upon Lithuania to demonstrate by clear and cogent evidence, that prison conditions had improved to such an extent that the previous view should not prevail.
The Divisional Court held that the DJ had fallen into error because Lithuania had failed to adduce any such evidence. It considered fresh evidence, including the evidence of a Lithuanian lawyer Mr Liutkevicius (who is the Chief Legal Officer of the Human Rights Monitoring Institute, and has conducted extensive research into the protection of human rights in the Lithuanian criminal justice system), and a report published in 2018 by the Council of Europe Committee for the ...
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