QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
| IVAN JANOVIC
|- and -
|PROSECUTOR GENERAL'S OFFICE LITHUANIA
Ben Lloyd (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 10 March 2011
Crown Copyright ©
Mr Justice Cranston:
"During the night between 22 and 23 April 2000, in the region of Minsk, Byelorussian Republic, acting under influence of alcohol, acting under pre-agreement and in association with M Janovic, having used physical violence, Ivan Janovic dragged the victims, A Strelkova and J Kiricenko, going from the youth centre "Yunost" to the forest, in the direction of Zaslavski water storage, at the distance of 900 metres from the aforementioned youth centre, hit on victims' various body parts with hands and legs, thus making bodily injuries which resulted in short term health impairment, and having neutralised their resistance, he and M Janovic in turn raped A Strelkova and J Kiricenko."
The warrant then continues with an explanation of the criminal proceedings:
"Criminal proceedings against Ivan Janovic were initiated in the Byelorussian Republic. As the suspect, the Lithuanian citizen, Ivan Janovic, departed to Lithuania, on the basis of bilateral agreement between the Republic of Lithuania and the Byelorussian Republic on legal assistance and legal relations in the civil, family and criminal cases, on 28 March 2005 criminal prosecution of the person in question for the above-mentioned criminal offence was transferred to the authorities of the Republic of Lithuania."
The warrant sets out the offence of rape pursuant to article 149 of the Lithuanian Criminal Code. The maximum sentence is 10 years.
"… [S]ince 1 May 2004, the Republic of Lithuania has been a Member State of the European Union, which conforms to the requirements of a Member State. The Republic of Lithuania is a democracy of the rule of law. The criminal laws of the Republic of Lithuania grant all guarantees to a suspected person, which are provided in the Convention for the Protection of Human Rights and Fundamental Freedoms. This Convention was ratified in the Republic of Lithuania and came into force on 20 June 1995."
On 20 August 2010 District Judge Wickham ordered the appellant's extradition after rejecting submissions on his behalf, submissions which are echoed in the appeal before us.
"During that period [from 2000] it is clear that overall overcrowding at Lukiskes has diminished but that extreme overcrowding in some parts of the remand section of the prison had not diminished. In 2008, the most recent evidence suggests, the CPT found some conditions the Committee considered "outrageous" and which could be said to amount to "inhuman or degrading" treatment. I therefore conclude that were Ivan Janovic extradited to Lithuania, given that he would likely be held at Lukiskes Prison, he would likely experience custodial remand conditions amounting to inhuman or degrading treatment and there is also a significant risk that he might be the victim of inter-prisoner violence."
In his supplementary report Professor Morgan says that although parts of the prison have been refurbished, the prison is more crowded now than in 2008 and 2009. He reiterates his view about inhuman and degrading treatment and adds that the period of detention during police investigation and remand would probably be prolonged, possibly years.
Abuse of process, extradition offences and Article 6 ECHR
"The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) the conduct is so punishable under the law of the category 1 territory (however it is described in that law)."
" … 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."
Membership of the Council of Europe is not, of course, a complete answer, as R (on the application of Bulla) v Secretary of State for the Home Department  EWHC 3506 (Admin) demonstrates. Where there are reliable reports that the authorities have resorted to, or tolerated, practices contrary to the principles of the Convention, membership is no answer: MSS v Belgium, ECHR, Grand Chamber, 21 January 2011, BAILII:  ECHR 108. When the Convention state is also a member of the European Union however, it will be "very difficult to show" as Ouseley J expressed it in Symeou v Public Prosecutors' Office at the Court of Appeals, Patrus, Greece  EWHC 897 (Admin);  1 WLR 2384, that there is a real risk of a total denial of article 6 rights: .
Article 3 and prison conditions
" … [T]he decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country."
"82. It is true that the appellant did not suffer any palpable trauma as a result of these conditions. Nevertheless, the Court finds that they failed to respect basic human dignity and must therefore have been prejudicial to his physical and mental state. Accordingly, it concludes that the severely overcrowded and unsanitary conditions of the applicant's detention at the Lukiskes remand prison amounted to degrading treatment in breach of Article 3 of the Convention."
Passage of time
"A person's extradition to a Category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have
(a) committed the extradition offence (where he is accused of its commission) …"
Eleven years have elapsed since the alleged offences, and there is no indication when a trial will take place should extradition occur. It is common ground that the appellant was not notified of the criminal allegation until his arrest on the European Arrest Warrant, thus none of the delay is attributable to him.
"I accept that a 10 year period between the date of the allegation and the extradition hearing is a long time, especially when presence at the scene of the activity is disputed. I further accept that there is no evidence that [the appellant] was aware of the proceedings in Belarus. He was, however, a frequent traveller between the two countries and giving an address that no longer existed indicates a desire not to be traced. There is no evidence to show that Lithuania has been "inexcusably dilatory" in taking steps to bring the fugitive to justice."
On the basis of Inga Abramaviciute's report, it was submitted to the judge that since Milan Janovic was beaten by police, his evidence was tainted, that he will not be available in Lithuania and that the Belarus evidence was inadmissible. The judge concluded that it was a misconceived assumption that Milan Janovic was the subject of violence. And there was no evidence before the court that Milan Janovic was not available to testify in Lithuania. Questions of admissibility, fairness and abuse of process were matters for the Lithuanian courts and must be argued there. It would be neither unjust nor oppressive to extradite the appellant.
""Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to the hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair" (at 782H).
Lord Diplock went on to decide that as regards delay which is not brought about by the acts of the accused himself, the question of where responsibility lies for the delay is not generally relevant and what matters is not so much the cause of such delay as its effect, "rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude": 783C. The burden of proof is on an appellant. A requested person must show that, on the balance of probabilities, it would be unjust or oppressive to extradite by reason of the passage of time: Kociukow v District Court of Bialystok III Penal Division  EWHC 56 (Admin).
Lord Justice Jackson: