England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2 July 2009

1. LORD JUSTICE LEVESON: Silber J will give the first judgment.
2. MR JUSTICE SILBER: Arnus Baranauskas, the appellant, appeals against a decision of District Judge Nicholas Evans dated 25 March 2009 by which he ordered the extradition of the appellant to Lithuania pursuant to section 21(3) of the Extradition Act 2003, in order that the appellant could serve a prison sentence of 38 months for an offence of violent rape of a male.
3. The basis of the challenge to the extradition in front of the District Judge related to the treatment that the appellant was likely to receive on his return to Lithuania. Mr Malcolm Hawkes, who appears on behalf of the appellant, took us to the ECPT report of 2004, which talks of the ill-treatment at the Marijampole Correction Home. The report stated:

"At Marijampole Correction Home many consistent accounts were received, from prisoners interviewed individually, of deliberate physical ill-treatment by staff. A number of these allegations related to beatings said to have been inflicted by masked members of the establishment's special intervention group during regular three-monthly cell searches. Further, at Vilnius-Lukiškes Remand Prison and the Prison Hospital, a few prisoners claimed that they had been subject to physical ill-treatment (beatings) or excessive use of force by custodial staff."

4. There were also allegations made of inter-prisoner violence, and the writers of the report explained that they were "seriously concerned by the level of inter-prisoner violence at Marijampole Correction Home. The prospect of becoming victims of beatings, sexual assaults, extortion, and a host of indignities was a daily reality for many vulnerable prisoners. Such a situation could fairly be described as inhuman and degrading". A particular feature on which he relied was the way in which the ECPT report dealt with vulnerable prisoners. It was noted that prisoners who requested a transfer but who refused to name the other prisoners responsible for threatening them "were repeatedly punished with cellular confinement for several months or several years on end".
5. The District Judge did not accept that as being sufficient to refuse the order for extradition. He explained in the reasons that he gave that, first, many of the incidents relied upon were of some antiquity. He referred to what had been said in the reports relied upon by Mr Hawkes. He also drew attention to what had been said by Latham LJ in Edgaras Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), in which he said:

"The fact that human rights violations take place is not of itself evidence that a particular individual would be at risk of being subjected to those human rights violations in the country in question. That depends upon the extent to which the violations are systemic, their frequency and the extent to which the particular individual in question could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse."

6. The District Judge came to the conclusion that it was difficult to draw any clear conclusions, but he noted that the Lithuanian authorities were well aware of the international criticism. He took into account the fact that the appellant was specifically vulnerable by reason of his conduct (a male rape) that had led to his conviction. The District Judge also relied on various statements from the Ministry of Justice in a communication dated 5 January 2009, where various undertakings were given, and it was shown that steps had been taken. The District Judge concluded in paragraph 8(f) that:

"... these steps clearly indicate a recognition of the sort of problems, about which the appellant expresses concern, and go a long way to satisfy me that steps can and will be taken to ensure the defendant's well-being whilst he is held in custody."

He was then satisfied that the extradition of the appellant would not be incompatible with his Convention rights.

7. The grounds of appeal were that the District Judge erred in failing to find the appellant would be at risk of ill-treatment contrary to Article 3 of the European Convention on Human Rights. It was said that the District Judge failed to take into account the objective evidence, which showed the extent of violence in Lithuanian prisons, which occurred because prison staff assaulted or intimidated inmates. There was also the problem of unchecked violence between the prisoners themselves.
8. Another feature which it is said the District Judge did not take into account was the appellant's status as a vulnerable prisoner, in circumstances where the state authority would not be giving him any protection.
9. At the outset of this appeal, counsel for the appellant sought an adjournment so that an expert's report could be commissioned relating to conditions in prison in Lithuania and how they would affect the appellant. This is the fourth application for authority to instruct an expert as there have been two unsuccessful applications to the Legal Services Commission, which, in themselves, have not been the subject of any challenge on judicial review.
10. Further, an application was made to this court, and on 9 June 2009 it was refused by Collins J. He explained:

"The issue of prison conditions has been raised in many Lithuanian cases. It has consistently been found that there are no breaches of Articles 3 or 2. The appellant had ample opportunity to obtain the evidence, which would not have been likely to add to that available from other sources, before the hearing at the lower court. I see no good reason to allow this application, which in any event runs counter to the proper approach to EAWs. The regime in countries which are Union Members should be trusted."

11. The case for the appellant is that, without the expert's report, it would not be possible for the appellant to put forward a strong case that his Article 3 rights would be infringed on his return. We are unable to agree that there should be an adjournment so as to obtain this report for four main reasons. First, the appellant has had two previous applications for funding refused by the Legal Services Commission, and there is no basis for believing that another application would succeed. Second, Council of Europe countries should be assumed to act fairly. Lord Brown, giving the judgment of the Judicial Committee of the Privy Council in Gomes v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 explained at paragraph 35:

"Council of Europe countries in our view present no problem. All are subject to Article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial - whether by an abuse of process jurisdiction like ours or in some other way."

We consider that, by analogy, those countries that are signatories to the Convention would be assumed to be capable of protecting the rights of people in their country. Lithuania is of course a signatory to the European Convention on Human Rights.

12. The third reason why we refuse the application is the appellant has had ample time since the start of these proceedings on 7 November 2008, almost eight months ago, to obtain this information. That factor as well militates against granting this application.
13. Finally, we agree with the reasoning of Collins J, to which we have referred.
14. Moving to the merits of the appeal, which relate to the possible infringement of the appellant's right under the European Convention, the District Judge considered those matters. He also took into account the evidence that was given from the appellant. He explained that at paragraph 6 of his reasons, when he said of the appellant:

"The defendant gave evidence and told me that [he] knows that 'the prisoners will want to kill him'. This concern arises because he is a convicted sex offender (he was convicted of a violent male rape of a minor). Neither he nor his brother has ever been detained in a prison in Lithuania. His brother (who has friends who have been imprisoned in Lithuania) told the defendant (when they were together in Lithuania in 2002) that he would be subject to violence from other prisoners. The defendant had a friend who, 8 years ago, was apparently beaten and kicked to death in prison. As far as the defendant knows no one was found guilty of this offence. The defendant has learnt from watching television and reading articles that there is much violence in Lithuanian prisons, prisoner on prisoner, and the guards do nothing about it. The defendant came to the UK on 28 October 2004 specifically to avoid having to go to prison, because he was concerned that he would be killed if he ever had to serve a prison sentence in a Lithuanian prison. Whilst awaiting the extradition ruling the defendant tells me he has been detained in custody at HMP Wandsworth on the vulnerable prisoners wing."

15. We have considered with care the evidence that has been put forward, and also the submissions, but we have come to the conclusion that the District Judge came to the right decision essentially for the right reasons. The basic reason is that the appellant has not satisfied us there are substantial reasons for believing that he faces "a real risk of being subject to torture or to inhuman or degrading treatment or punishment", which is the well accepted test which was propounded by Lord Bingham of Cornhill in his speech in R v Special Adjudicator ex parte Ullah [2004] UKHL 26, where he pointed out that, so far as relying upon Article 3 as a ground for resisting extradition:

"... the Strasbourg jurisprudence ... makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment ..." [para 24]

We have noted that the evidence that has been relied upon by the appellant in this case is old evidence.

16. A second factor is the fact that Lithuania is a signatory to a number of international agreements: not only the European Convention on Human Rights, but also the United Nations Convention on Torture, and the International Covenant on Civil and Political Rights. There is no evidence to find that Lithuania is not aware of its obligations pursuant to those agreements, and as I have explained, Lord Brown has stated that it must be assumed that they will comply with those international obligations.
17. A further reason to which I attach importance is what has been said by the Lithuanian authorities in the document dated 5 February 2009. They stated that:

"The provisions of the Criminal Code, Code of Criminal Procedure and Code of the Enforcement of Punishments of the Republic of Lithuania fully guarantee the protection of human rights during criminal proceedings and execution of sentences. According to Article 6 of the Code ... imprisonment sentence should be enforced under such conditions, which secure the safety of a person and correspond to the laws and other legal acts of the Republic of Lithuania ..."

18. It was also made clear that, in order to prevent "inter-prisoner violence in penal institutions, special violence prevention measures are implemented". The Ministry of Justice in Lithuania has guaranteed "in case of surrender of [the appellant] to Lithuania he will be treated with full respect to his human rights during execution of the sentence in correctional institutions of Lithuania".
19. For all those reasons, and notwithstanding the careful submissions made by counsel for the appellant, I have come to the conclusion that the decision of the District Judge was correct, and the reasons, which I have sought to set out, are very similar to those on which he relies.
20. LORD JUSTICE LEVESON: I agree. Thank you very much, Mr Hawkes, Mr Lloyd.