England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		13 May 2016

1. MR JUSTICE JEREMY BAKER: The appellant Mantas Dalikas was born on 14 November 1982. He is a Lithuanian citizen. On 9 October 2007 he was convicted of offences of criminal damage and being drunk and disorderly by the courts in Lithuania and was made the subject of a suspended sentence of 14 months' imprisonment. Thereafter, in violation of the terms of the suspended sentence, the applicant departed Lithuania and entered the United Kingdom. On 6 March 2009, the court in Lithuania ordered the activation of the suspended sentence of imprisonment. On 4 August 2011 the Lithuanian authorities issued a European arrest warrant in relation to that conviction and sentence which was certified on 9 January 2012. On 19 July 2011 a further European arrest warrant was issued by Lithuanian authorities in regard to accusations that between 30 June 2008 and 23 December 2008 the appellant had been involved in 4 offences of theft of television sets and 2 offences of attempted theft, the maximum penalty for these offences being 3 years' imprisonment. It would appear that this second arrest warrant was not proceeded with, and it was replaced by a similar one on 4 March 2015, this latter European arrest warrant being certified on 2 April 2015.
2. On 1 April 2015, the appellant was arrested in breach of both European arrest warrants.
3. A contested extradition hearing took place before District Judge Ikram, who provided a written decision dated 19 January 2016 in which he ordered the extradition of the applicant in respect of both European arrest warrants. The applicant has sought to challenge that decision by way of appeal and his application for permission to do so was determined by the single judge, Langstaff J on 6 April 2016, permission being refused. This is the oral hearing of the renewed application for permission.
4. In the proceedings before the district judge, 3 matters were raised on his behalf. Firstly, under article 3 it was argued that returning the applicant to Lithuania would involve a violation of this right not to be tortured or subjected to inhuman or degrading treatment or punishment. Secondly, it was argued that there would be a breach of his article 8 rights, and, thirdly, that it would be disproportionate for the applicant to be returned in relation to the accusation warrant under section 21A of the Extradition Act 2003.
5. The basis of the article 3 challenge was twofold. Firstly, that in general the conditions in Lithuanian prisons are such that incarceration would involve inhuman or degrading treatment or punishment. In support of this contention the recent case of Mironovas and others v Lithuania (40828/12 etc) is relied upon, which held that in a number of Lithuanian remand and prison establishments there had been breaches of the detainees' article 3 rights. In particular, in this case it is contended that the applicant would be at particular risk of being subjected to inhuman or degrading treatment because he is bisexual. In support of this submission, the applicant gave evidence that, as a result of his sexuality, during the course of a previous remand in custody/prison sentence between 2004 and 2006, he was subjected to various acts of ill treatment, including an assault, as a result of which he suffered a broken jaw. Moreover, as a result of that, he has subsequently suffered ongoing physical and psychological harm, including his reliance upon alcohol to the extent that he is now a recovered alcoholic.
6. In the course of the extradition hearing the district judge heard evidence from the applicant in relation to his previous experience in custody. He was also provided with a "Kaunas assurance" dated 5 July 2013. The district judge, when considering the article 3 submissions, noted that R v Special Adjudicator (ex parte Ullah) [2004] AC required the applicant to demonstrate that there were strong grounds for believing that, if returned, he would face a real risk of being subjected to torture, inhuman or degrading treatment or punishment. He concluded that he was not so satisfied. Although he accepted the applicant's evidence as to what had happened to him in the period between 2004 and 2006, he noted that a significant period of time had elapsed since then, and that although there were still outstanding issues as to attitudes in Lithuania to LGBT communities, he was not satisfied that there was sufficient evidence of risk to the applicant of being subjected to ill treatment or lack of Article 3 protection. Moreover, that although there were concerns in relation to the treatment of prisoners, and those on remand in Lithuanian prisons in general, he accepted the "Kaunas assurance" as being a matter which was sufficient assurance that the applicant would not be subjected to treatment contrary to article 3.
7. In the original grounds, and also in the renewed application for permission, the district judge is criticised for his reliance on the "Kaunas assurance". It is pointed out that it was not provided specifically in relation to the applicant, moreover, that its terms appear to suggest that it applies to accused persons, rather than those who have been convicted of criminal offences.
8. It is also submitted that, contrary to the district judge's findings, the applicant had provided sufficient evidence to demonstrate that there were strong grounds for believing that, if returned, he would face a real risk of being subjected to treatment in breach of article 3.
9. Dealing first with the general proposition that the situation in Lithuanian prisons is such that there would inevitably be a breach of article 3. In my judgment the case of Mironovas (supra), whilst critical of the situation in respect of various of the penal establishments which were considered in that case, does not provide sufficient evidence that this applies to all such establishments within that country. As the district judge pointed out, Lithuania is designated as category 1 convention state, such that substantial evidence would be required to suggest that Lithuania would not fulfil its article 3 obligations in relation to the applicant.
10. In these circumstances, I consider that the district judge was entitled to conclude that there was no sufficient evidence of a general risk of an article 3 breach in relation to the applicant whilst he is serving a prison sentence and, in relation to any period on remand, there is no sufficient reason to believe that the "Kaunas assurance" would not be fulfilled.
11. In relation to the particular risk of harm that the applicant would face by reason of his sexuality, the district judge was entitled to have regard to the significant passage of time since his apparent ill treatment in 2005. The district judge gave careful consideration to this evidence and concluded that he was not satisfied that there was.

i. "... any specific evidence as to treatment and protection of gay/bisexual men inside prisons today meets the threshold required."

13. In my judgment, there was no such specific evidence and he was entitled to make this determination. Accordingly, there are no arguable grounds of appeal in relation to the article 3 submissions, either as a matter of generality, or specifically arising from the applicant's particular circumstances.
14. In relation to article 8, the district judge carried out the balancing exercise required of him by the case of Celinksi v Poland [2015] EWHC 1274 (Admin). In favour of the applicant the district judge took into account the fact that he had a daughter in the United Kingdom, that he suffered from the various medical conditions about which he gave evidence, and that he had been remanded in custody since his arrest in April 2015.
15. In relation to those factors which favoured extradition, it was noted that the arrest warrants not only covered matters of accusation, but were also in relation to a conviction whereby a significant term of imprisonment was required to be served in Lithuania. Moreover, although there had been delays in this case, the district judge had determined that the applicant was a fugitive, not only in relation to the convictions which he admitted, but also, as a result of his arrests in 2008 and 2009 during a return to Lithuania, he was a fugitive in relation to the accusation warrant, such that these delays were at least in part due to his own misconduct. He also took into account the public interest in ensuring that extradition arrangements are honoured. After carrying out the balancing exercise, the district judge concluded that extradition would not be a disproportionate interference with the applicant's article 8 rights.
16. The grounds reiterate a number of the matters which had already been taken into account by the district judge, albeit it is submitted that he gave an insufficient weight to the factors against extradition. It is stressed that he has a daughter in the United Kingdom, that he suffers alcoholism, and that his return to Lithuania would cause him to suffer some psychological harm. It is also submitted that although part of the delay, between 2008 and 2011, may be due to the applicant, there is no explanation for the delay between 2011 and 2015 relating to the accusation warrant; the original one having been replaced some 3 years or so later, by the most recent one dated 4 March 2015.
17. If those had been the only factors which were germane to this applicant, then it seems to me that, the district judge having carried out the appropriate balancing exercise under article 8, as was required of him by the Celinkski case, there would not be an arguable case that the decision which he reached was wrong, that being the single question which is for consideration by the appellate court as the Lord Chief Justice set out in the Celinski case.
18. However, Ms Westcott, who has appeared before this court today, brings to the forefront of her submissions under article 8 the fact that the applicant, now having been in custody since April of 2015, will within a very short period of time, have served the sentence of custody imposed upon him in Lithuania. She specifically refers to the cases of Chmura v District Court Lublin Poland [2013] EWHC 3896 (Admin) and Jesionowski v Regional Court in Gdansk Poland [2014] EWHC 319 (Admin) where the approach of this court has been to refuse to extradite those subject to extradition proceedings for a conviction warrant, where they have completed the period of custody imposed upon them, whilst in custody in the United Kingdom. She submits that that in itself provides an arguable ground of appeal under article 8, in relation to the conviction warrant.
19. However, she goes further, and has referred the court to the case of Mazurek v Provincial Court Lublin [2016] EWHC 677 (Admin) in which Cranston J considered the position where there are warrants in relation to both accusation and conviction, and where, by the time the matter was being considered by the court on appeal, the appellant had served all of the period of time that he would have been required to have served under the sentence in Poland. He gave consideration as to what should happen to the second of the warrants, namely that in relation to the accusation.
20. He concluded that, in the circumstances of that particular case, and having conducted the Celinksi balance, it would be disproportionate to extradite the appellant in relation to what were relatively minor accusations of class B drugs offences.
21. The situation here, of course, is different in that not only are the matters of accusation potentially more serious, relating to theft of relatively valuable electrical items, but also I note from his previous convictions that, since entering this country, he has repeatedly offended in relation to matters of dishonesty.
22. However, although Cranston J stressed the exceptional circumstances of that case, I am just persuaded that there are arguable grounds of appeal, under Article 8, not only in relation to the conviction warrant, but also in relation to the accusation warrant.
23. Therefore the conclusion that I have reached is that in relation to the conviction warrant, I am satisfied that there is an arguable case under article 8, in relation to section 21 of the Extradition Act 2003, and I am just persuaded that I should also grant permission in relation to article 8 considerations in respect of the accusation warrant, under section 21 and 21A of the 2003 Act, for the reasons I have sought to explain. However, each case has to be decided on its own specific facts, and the applicant in this case, as Ms Westcott fully appreciates, should not draw any immediate comfort from the result of the decision in the Mazurek case. It will be for the court on the next occasion, having the benefit of full argument, to determine whether or not those arguments succeed in relation to either of these warrants.
24. Thank you very much indeed, Ms Westcott.