QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JAY
| (1) ARUNAS ALEKSYNAS
(2) GINTARAS LAPINSKAS
(3) AURIMAS PETRONIS
(4) STASYS PODREZAS
(5) RIMAS DANIELIUS
(6) EDGARAS GUDAUSKAS
(7) PETRAS ZIDECKAS
|- and -
|(1) MINISTER OF JUSTICE, REPUBLIC OF LITHUANIA
(2) PROSECUTOR GENERAL, REPUBLIC OF LITHUANIA
Mr David Josse QC and Mr David Williams (instructed by Dalton Holmes Gray) for the Second Appellant
Mr David Josse QC and Mr David Williams (instructed by TV Edwards LLP) for the Third Appellant
Mr David Josse QC and Ms Amelia Nice (instructed by Kaim Todner Solicitors LLP) for the Fourth Appellant
Mr David Josse QC and Mr R Jesurum (instructed by Lansbury Worthington Solicitors) for the Fifth Appellant
Mr David Josse QC and Miss Natasha Draycott (instructed by Kaim Todner Solicitors LLP) for the Sixth Appellant
Mr David Josse QC and Mr Ben Cooper (instructed by Kaim Todner Solicitors LLP) for the Seventh Appellant
Mr Alun Jones QC and Mr J Stansfeld (instructed by CPS, Extradition Unit) for the Respondents
Hearing dates: 3rd and 4th February 2014
Crown Copyright ©
MR JUSTICE JAY:
(i) whether assurances given by the Vice-Minister of Justice amount to an abuse of the process of the Court such that they cannot be relied on (this issue relates only to the accusation cases).
(ii) whether, in the light of (i) above or independently, and in view of prevailing conditions in Lithuanian police stations, remand prisons and prisons for convicted persons, extradition would violate the Appellants' rights under Article 3 of the ECHR (this issue relates to all the Appellants, although the potential interplay with issue (i) applies only to the accusation cases).
(iii) whether, in the cases of Messrs Aleksynas and Danielius, extradition would be disproportionate and/or in breach of their rights under Article 8 of the ECHR.
The Circumstances of the Individual Appellants
Mr Arunas Aleksynas
Mr Rimas Danielius
Mr Aurimas Petronis
Mr Gintaras Lapinskas
Mr Petras Zideckas
The Consequences of Extradition for these Appellants
"Considering the abovementioned, we hereby inform that Director of Prisons Department shall ensure that all detainees transferred from the United Kingdom will be held in Kaunas Remand Prison during the entire period of pre-trial investigation and case hearing in the court."
"1. The Director of the Prisons Department … assures that these persons will be held at Kaunas Remand Prison, or on exceptional basis, at Kaunas Juvenile Remand Prison – Correctional Facility.
2. The persons will be held in the facilities stated in clause 1 until the end of the detention time or until they are transferred to correctional facilities to serve a sentence of imprisonment (after the judgment of conviction has come into force), i.e. until the detention will be applied during the pre-trial or trial process.
3. This assurance may be withdrawn only prior to written notice to the CPS of the UK and such a withdrawal will be applied to the persons who are surrendered to the Republic of Lithuania by the UK after this withdrawal."
"While conducting the convoy the protection of detainees shall be assured and the requirements of isolated custody shall be preserved. It should be noted that during the trial the detainees usually are transported directly from the remand prisons to the courts and backwards, and only in exceptional cases they can be transferred to police detentions but not longer than for a term of 15 days. The attention should be paid to the fact that the decision on transferring the detainees from the remand prison to the territorial police detention shall be adopted by the pre-trial investigation officer or a prosecutor or court."
"1. The Director of Prisons Department under the Ministry of Justice of the republic of Lithuania … guarantees that these persons will be held at Kaunas Remand Prison, or at Kaunas Juvenile Remand Prison – Correctional Facility (wherein the adult detainees could be held too)."
"In conclusion Professor Morgan found that there is an ambiguity regarding the assurance. If the assurance does not preclude one or more of the defendants from being held for periods in police detention, with the result that they were indeed held for a period in police detention, then there is a high risk of being held in inhuman or degrading conditions." [File A/tab 10/page 118]
"Viewed purely formally, the obligation on the part of the Vice-Minister of Justice is not binding on the Minister of Justice. However at a practical level there is no reason to believe the assurance would not be honoured. He believes that it would be honoured." [File A/tab 10/page 119]
"I am saying it is indeed complex issue which involves the cooperation of various bodies and in practical terms those assurances are executed but I believe so, so we now in my capacity as a prosecutor presenting evidence in relation to the case of Mr Antonov and Mr Baranauskas." [File A/tab 7/pages 55-56]
Later, Mr Krušna testified that local prosecutors did not know about the existence of the assurances because these were restricted documents [File A/tab 7/page 58], and that what he described as 'operational issues' sometimes prevented extradited persons from being transferred to Kaunas Remand Prison as a matter of course [File A/tab 7/page 61].
"Currently the Prosecutor General's Office closely observes and commissions the competent institutions to ensure that all detainees extradited from the United Kingdom for the purpose of the criminal prosecution were held at Kaunas Remand Prison. Today, i.e. on 31 October a meeting with the representatives of these institutions has taken place, during which all actions have been arranged in order to achieve an immaculate working of assurance implementation mechanism."
"It should be noted that a meeting [presumably held on 31st October 2013] with representatives of Ministry of Justice, Prosecutor General's Office and Prison Department under the Ministry of Justice was organised in order to solve the problems arisen. To avoid particular deviations in the future it was decided that persons surrendered from the United Kingdom to the Republic of Lithuania pursuant to a EAW will be directly transferred to Kaunas Remand Prison without any temporal detention in other institutions providing detention. In addition, the Director of Prison Department has also repeated his instructions given to the administrations of the institutions subordinated to him concerning the detention procedure of persons surrendered from the United Kingdom to the Republic of Lithuania pursuant to a EAW at Kaunas Remand Prison or at Kaunas Juvenile Remand Prison – Correctional Facility.
With respect to the above-said, we believe that all questions raised have been solved and all institutions participating in this procedure understand the content of the assurances given by the Ministry of Justice and their implementation procedure in a similar way."
"It should be noted though that after the said meeting establishments subordinate to the Prisons Department continue receiving decisions made by competent officers and the courts on convoying the persons in question to (via) establishments in which they cannot actually be held on the grounds of the commitments undertaken, for the purpose of carrying out pre-trial investigation actions or case hearing in the court … Therefore, we request the Prosecutor General's Office of the Republic of Lithuania to ensure within its competence that the persons who have surrendered from the United Kingdom to the Republic of Lithuania under the European Arrest Warrant are not transferred from Kaunas … to (via) Šiauliai Remand Prison or Lukiskes Remand Prison. If Prosecutor General's Office of the Republic of Lithuania cannot ensure the abovementioned measures, please inform the Ministry of Justice of the Republic of Lithuania, the Prisons Department and the UK Crown Prosecution Service about it."
"The Prosecutor General's Office additionally informed in written [sic] the courts, prosecution offices and pre-trial investigation offices of the Republic of Lithuania about the assurance granted by the Ministry of Justice and implementation thereof, in such a way ensuring that the courts did not adopt decisions on temporal transfer of the detainees from the Kaunas Remand Prison to Lukiskes and Šiauliai Remand Prisons for the purpose of carrying out the pre-trial investigation acts or trials in court."
"As we have mentioned before, for today all institutions responsible for convoying the detainees to certain destinations are informed that the persons subject to the assurance even on temporal basis cannot be transferred to Lukiskes and Šiauliai Remand Prisons, and the latter prisons are informed not to accept such persons."
Conditions in Lithuanian Penal and Police Establishments
The Remand Prisons
The Prisons for Convicted Persons
"In 2010, a particularly large number of decisions (865) were made regarding the complaints against the actions of officers of correctional institutions subordinate to the Prisons Department. This number exceeds the quality of decisions (403) passed in 2009 by more than twofold. This increase was caused by the mass applications (by 65 persons) received from Pravieniškes-3 Correction Home, in which the convicts expressed their dissatisfaction with the hygiene of residential and general purpose premises, the hairdresser's shop, auxiliary premises, and rooms for long-term visits as well as non-compliance with the hygiene requirements. The investigation confirmed that the complaints regarding the non-compliance with the hygiene standards were justified; therefore the total number of such applications is recognised as justified grew by more than five-fold." [File D2/tab 18/pages 695-696]
"Last year visits were paid to Pravieniškes-3 Correction Home, the Šiauliai Remand Prison, Lukiskes Remand Prison, and Hospital of Improvement Institutions.
To sum up information collected during the visits paid to the closed detention institutions, it must be stated that the problems related to the detention conditions, provision of catering and medical service are still very sore points." [File D2/tab 18/page 698]
"It is noteworthy that, at the end of 2012, the delegation of [CPT] completed its periodic review in Lithuania, and the Head of the delegation James McManus submitted to Lithuania their urgent comments and request to carry out an independent investigation in the Alytus Correction Facility. At the request of the Ministry of Justice of the Republic of Lithuania, the Seimas Ombudsmen's Office carried out an independent investigation at the Alytus Correction Facility related to ensuring a safe and secure environment for convicted persons and the use of special measures."
We were told that the report will be available in early 2014, but were not asked to adjourn this hearing pending its advent. Mr Josse criticised the Senior District Judge's observation that he was 'simply unable, from this piece of information, to draw a conclusion that any defendant held at this Correction Facility is at risk of inhuman or degrading treatment' [File A/tab 10/page 130]. Although it is possible to draw the inference that some specific concern or cluster of concerns may have led to CPT's request for this investigation, the available materials provide no clue as to their nature or seriousness. It follows that the conclusion reached by the Senior District Judge cannot be faulted.
"Due account should be taken of the fact that this problem is not homogeneous. On the one hand, there is a need to build new imprisonment institutions or renovate the existing ones. On the other hand, the question regarding the current policy on the imposition of detention and punishment applicable to Lithuania must be raised. Recently, the number of detained and convicted persons has been rapidly growing in Lithuania and has reached almost 10,000. Without changing the attitude towards the policy on the imposition of detention and punishment, tens of new imprisonment institutions may be built but sooner or later all of them will be overcrowded again. Therefore, an integrated solution to this problem should be found." [File D2/tab 20/page 741]
The defence relied on evidence showing that the problems from overcrowding are clear. There is a recurrent theme in the Seimas Ombudsmen's summaries of underfunding and justified complaints by prisoners. Underfunding itself has an impact on staff numbers and therefore on the risk of inter-prisoner violence.
It is true that the ombudsman reports consistent criticism in this way. The professor refers to a significant risk of vulnerability of inter-prisoner violence. This is an ongoing pervasive feature of prison life in Lithuania.
It would be wrong to be complacent about these risks. The risk of inter-prisoner violence has been considered many times, in Lithuania and elsewhere. However this court has confidence, as have other courts over the years, that the Lithuanian authorities will provide reasonable protection from any risk. There is simply no sufficient cogent evidence to rebut the presumption."
"One of the sore points in the police system for a number of years has been the poor condition of detention establishments of police commissariats. Countrywide, there are a total of 46 detention establishments in police commissariats. Of these only 10 establishments are in good condition. The remaining detention establishments do not meet the requirements of legal acts: the sanitary conditions of cells are poor, the norm of 5 square metres per person is violated, the procedure for the distribution of people to cells is not observed, individuals' right to a walk and use of a shower is violated and the sufficient healthcare of people kept in detention establishments and their provision with recreational and hygienic items are not ensured. In most detention establishments of police commissariats, there are no yards where a detainee could go for a walk, there are no interrogation or meeting premises or medical stations. … A portion of detention establishments of police commissariats should not be used since the detention conditions in these establishments could be identified as inhuman and degrading the human dignity. There are many detainees placed in detention centres of police commissariats and quite a number of police officers are working there. This problem may therefore cause violations of human rights of many people. Thus, the situation demands particular attention." [File D2/tab 12/pages 533-534]
"Although the Seimas Ombudsman has been aware of a very bad condition of detention establishments of the country's police commissariats for a long time and special attention has been paid to this problem for a number of years, it must be stated that the situation is changing very slowly and that all institutions must make more active efforts in this area. It is worth mentioning that there are a few detention establishments which meet the requirements set in the legal acts after the reconstruction or major repairs; however, it should be emphasised that this process is not rapid enough." [File D2/tab 12/page 588]
"The process of liquidation of police detention centres that do not meet the established requirements is underway. Seven police detention centres terminated their activities at the start of 2008, with three more police detention centres planned to be closed in 2010. In addition, the Police Department has drafted a Programme for Optimisation of the Activities of Police Detention Centres, which provides for the reduction of the number of police detention centres to 27 and development of a network of efficient police detention centres meeting the abovementioned requirements." [File D1/tab 6/page 332]
"In their letter of 10 September 2010 the Lithuanian authorities indicated that a police establishment optimisation programme for 2009-2015 had been adopted. The aim was to reduce the number of police detention centres in Lithuania to 27 by 2015 and to ensure that all the centres offered satisfactory conditions. In this context, it was planned to renovate wing 1 at Klapeida City Police Detention Centre and to build a new police detention centre in Vilnius. It was not possible to carry out works in the current detention centre in Vilnius, since the building was included in 'the list of the state's protected projects'." [File D1/tab 7/page 379]
"… after the Police department under the Ministry of Interior of the Republic of Lithuania had taken decisive action to resolve these problems (the reduction of custody units, renovation of some custody units, and construction of new custody units), the situation changed fundamentally, and the Seimas Ombudsman receives much fewer such complaints. It is noteworthy that the aforementioned problem has not been finally resolved as there are still such custody units (for instance, the custody unit of the Vilnius County Chief Police Commissariat, etc.) where the detention conditions are deemed to be inhuman and are equivalent to torture. Therefore it is necessary to continue the works in this field." [File D2/tab 20/page 745]
"42 … The Court also has had regard to the CPT reports to the effect that the situation in a substantial number of police detention facilities, especially in smaller towns, was 'totally unacceptable', and in some cases 'could be considered inhuman and degrading'.
43. In the light of the above considerations, the Court is not convinced by the Government's submission that these conditions did not affect the applicant in a manner incompatible with Article 3. On the contrary, the Court is of the view that the prison conditions complained of diminished the applicant's human dignity and aroused in him feelings of anguish and inferiority capable of debasing him. In sum, the Court considers that the conditions of the applicant's detention in the Anykščiai Police Department Facility amounted to degrading treatment within the meaning of Article 3 of the Convention."
Thus, contrary to the position taken by the Prosecutor General's Office in correspondence, it is clear that even relatively short periods of detention may constitute violations of the Convention. Clearly, this must be assessed on a case-by-case basis having regard to the quality of the conditions, the length of time they are found to endure, and their subjective impact on the detainee.
Abuse of Process
"In our judgment, the reason why these two strands to the abuse jurisdiction cannot succeed is this. The focus of this implied jurisdiction is the abuse of the requested state's duty to extradite those who are properly requested, and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in Bermingham and the Tollman case  1 WLR 1157 concerns abuse of the extradition process by the prosecuting authority. We emphasise those latter two words. That is the language of those two cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know that the trial cannot succeed, they abuse the extradition processes of the requesting state." (paragraph 33).
(i) the assurances were to be kept secret from the majority of domestic prosecutors.
(ii) in their initial implementation, the assurances did not apply to consent cases (e.g. Mr Misaniukas).
(iii) equally, in their initial implementation the assurances did not apply to those who did not resist extradition on grounds of poor conditions.
(iv) successful implementation would depend on the UK authorities providing timely information as to whether the extradited person resisted extradition and the grounds for his doing so.
(v) the assurances were not retrospective.
(vi) individual detainees could opt out.
(i) 'whether the assurances have been disclosed to the Court'. Mr Josse accepted that they had been.
(ii) 'whether the assurances are specific or are general and vague'. Mr Josse submitted that they were imprecise, and applied to a large and undifferentiated cohort.
(iii) 'who has given the assurances and whether that person can bind the receiving state'. Mr Josse submitted that Mr Stripieka could not bind the Republic of Lithuania and in any event could not bind any entity or individual outside the aegis of the Ministry of Justice.
(iv) '... whether local authorities can be expected to abide by them'. This raises the same point as item (iii), at least in the context of Mr Stripieka's letter dated 21st November 2013.
(v) 'whether the assurances concern treatment which is legal or illegal in the receiving state'. Mr Josse submitted that it would be illegal to hold detainees outside Kaunas Remand Centre.
(vi) 'whether they have been given by a Contracting State'. They were.
(vii) 'the length and strength of bilateral relations between the sending and receiving states, including the receiving state's record in abiding by similar assurances'. Lithuania has been a member of the Council of Europe since 1993. Beyond the material I have already examined, Mr Josse did not place reliance on other examples of non-compliance.
(viii) 'whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers'. Mr Josse accepted that his clients would have lawyers in Lithuania.
(ix) 'whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including human rights NGOs) and whether it is willing to investigate allegations of torture and to punish those responsible'. Mr Josse accepted that Lithuania allowed visits by CPT delegations. The effectiveness of the regime within Lithuania went separately to the heart of the Appellants' case under Article 3.
(x) 'whether the applicant has been previously ill-treated in the receiving state'. Mr Josse advanced no submissions under this heading.
(xi) 'whether the reliability of the assurances has been examined in the domestic courts of the receiving state'. Mr Josse said that his team was examining that issue.
"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."
"… [I]t seems to me that the circumstances in which an applicant can satisfy a District Judge that, if extradited, his Art rights [sic] would be breached in the requesting state – if that state is a category 1 Convention state – are likely to be few and far between and certainly require a good deal more than the routine deployment of the decision of the Strasbourg Court … or the reports of individual experts analysing and criticising the prison conditions in the requesting state. Something approaching the sort of international consensus established in MSS v Belgium and Greece is likely to be required."
The Appeal of Mr Aleksynas
The Appeal of Mr Danielius
LORD JUSTICE MOSES: