Scottish Sheriff Court Decisions

2015SCEDIN1

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH.

E34/14

Judgment by Sheriff T Welsh QC,

Under the Extradition Act 2003

In the Case of

The Lord Advocate, Crown Office, Edinburgh, on behalf of The Republic of Lithuania.

(Applicant)

Against

Roman Popov, a Prisoner, Addiewell Prison, Scotland.

(Respondent)

16^th December 2014.

The Issue.

[1] Roman Popov is a Lithuanian citizen. He is 26. When he was 17 he got into trouble in Lithuania. He was convicted on 20^th March 2008 in Siauliai County Court of 4 charges of assault and armed robbery, while acting with others. For his part, he was sentenced to a period of imprisonment of 3 years and 6 months, suspended for 2 years, subject to an overnight home detention curfew and residence restriction. However, he breached the curfew and skipped the jurisdiction on 15^th June 2009.  As a consequence, his sentence of imprisonment was activated by the Siauliai City District Court on 26^th June 2009. The Lithuanian authorities now seek his return to serve that sentence and have issued a European arrest warrant requesting he be extradited by the UK. Roman Popov is detained in custody on that warrant and the Lord Advocate now seeks a warrant for his extradition to Lithuania. In the present proceedings Popov does not dispute he is the person named in the European arrest warrant. Nor does he dispute the offences concerned are subject to surrender requirements. He was personally present at the Lithuanian trial, conviction and sentence. He has no family or social ties within the UK, so no Article 8 issue is engaged or argued. The sole bar to his return to serve the remainder of his sentence, in Lithuania, is based on Article 3 of the European Convention on Human Rights, namely, that given the current conditions in the Lithuanian prison system, to surrender him there, to serve his sentence as a convicted prisoner, would breach his right not to be subjected to torture or inhuman or degrading treatment or punishment. No compatibility issue was raised, in terms of section 57(2) of the Scotland Act 1998 [as amended].

Lithuania.

[2] Lithuania became an independent Republic on 11th March 1990 following the disintegration of the Soviet Union. It joined the Council of Europe on 14th May 1993 and acceded to the European Union in 2004. In such circumstances Lithuania has been designated a category 1 territory in terms of  section 1 of the Extradition Act 2003, and Part 1 of the Act accordingly applies. See also Extradition Act 2003 (Designation of Part 1 Territories) Order 2003/3333.

The Lithuanian Prison Cases.

[3] On 22nd February 2013, the Northern Irish Appeal Court, in the absence of assurances from the Lithuanian authorities to the contrary, sustained a decision of the Recorder of Belfast [Lithuania v Liam Campbell, 2013 NIQB 19] not to surrender Liam Campbell to Lithuania to stand trial for terrorist offences, as to do so would have violated his Article 3 right. He was to be transferred to Lukiskes Remand Prison, pending trial. Before the Recorder, this remand prison was very severely criticised from two principal sources:

1. The Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) Reports of 2000 and 2010.
2. The written and oral testimony of Professor Rod Morgan who is (inter alia) Professor Emeritus of Criminal Justice in the Department of Law, Bristol University; a  former Chief Inspector of Probation; co-author of the Official Council of Europe's Guide to the Convention for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment; who has advised the CPT, Amnesty International and the ICRC; and is a member as an expert adviser of the Council of Europe CPT which visited Lithuania in February 2000. He had first-hand experience of custodial conditions in Lithuania and visited Lukiskes Prison (“the relevant prison” in Campbell’s case) when he interviewed the requested person's brother who had been held in that prison as a remand prisoner since February 2008.

The court also took account of a finding of the European Court of Human Rights in Savenkovas v Lithuania [2008] ECHR 1456, a claim by a Lithuanian of Belarusian origin that conditions in Lukiskes remand prison, where he was held for over a year, and in Rasu prison, in Vilnius, breached Article 3 . The Strasbourg court set out the general principles at [77]-[79]. It then said of the overcrowding in Lukiskes remand prison:

“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.”

The decision in Campbell gave rise to numerous Article 3 challenges against surrenders to Lithuania, from the UK. By 24^th February 2014 there were 55 Lithuanian prison cases pending, all claiming potential Article 3 violations.

[4] On that date the Court of Appeal in London issued its decision in Arunas Aleksynas and others v Minister of Justice, Republic of Lithuania, Prosecutor General, Republic of Lithuania [2014] EWHC 437 (Admin). Prison conditions in Lithuania were again reviewed by the court which examined public domain documents including;

1. The 2000 and 2010 reports from the European Committee for the Prevention of  Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) relating to Lithuanian prison conditions.
2. Reports from the Seimas Ombudsmen of  Lithuania, a domestic NGO with responsibility in the domain of human rights violations relating to Lithuanian prison conditions.

The appeal court also analysed the extensive public domain reports and transcripts of the expert testimony from Professor Morgan and others, given before the Senior District Judge. In sustaining the decision to order surrender in the conviction cases, Mr Justice Jay, stated:

“[103] In my judgment, my review of the evidence bearing on the conviction prisons establishes that the Appellants have fallen a long way short of proving that they face a real risk of Article 3 violations if incarcerated in any such prison in Lithuania. Even taking the CPT reports and the reports from the Seimas Ombudsmen at their highest, the available evidence does not trigger substantial concerns of inhuman or degrading treatment. It must also be reiterated that Professor Morgan drew a clear distinction in his oral evidence between conviction prisons and remand prisons, and that no Strasbourg case was drawn to our attention upholding Article 3 violations in such institutions. I conclude that standards in Lithuanian conviction prisons are not unacceptably low.”

Aleksynas has since been followed consistently in many Article 3 cases involving Lithuania e.g., Tomas Matijauskas v Ministry of Justice of the Republic of Lithuania [2014] EWHC 672 (Admin); Kirpliukas v Republic of Lithuania [2014] EWHC 2794 (Admin); Volynec, Bruzas, Basev v Vilnius City 1st District Court Lithuania, Vilnius City Courts Nos 2 and 1 Lithuania, Lithuanian Judicial Authority [2014] EWHC 2332 (Admin); Vilkauskas v District Court Vilinius City Lithuania [2014] EWHC 2669 (Admin).

Specific state assurances.

[5] Turning then to the present case, on 13^th November 2014 Mr Bissett appeared before me, for the respondent Popov, at a full s.9 hearing on the warrant. His opposition to surrender was in two parts. Firstly, he was aware that the Crown would rely on a general assurance given by Lithuanian authorities following the Campbell case that all persons returned to Lithuania from the UK would not be remanded to Lukiskes prison [which was held Article 3 non-compliant in Campbell] or, for that matter, Siauliai prison. So far as Scotland is concerned, that undertaking, was given in the unconnected surrender case of Mantas Peckys, whose return was also sought by Lithuania. The relevant part of the Peckys correspondence, relied upon in Popov’s case, is dated ‘May 2014’ (sic) reads thus:

“RE: EUROPEAN ARREST WARRANT ISSUED AGAINST MANTAS PECKYS

The Ministry of Justice of the Republic of Lithuania has guaranteed that during the pre-trial investigation and hearing of the criminal case in court all persons detained and surrendered from the United Kingdom on the basis of the European Arrest Warrants for the purposes of conducting their criminal prosecution shall be kept in Kaunas Remand Prison or in Kaunas Juvenile Remand Prison. We hereby confirm that the said guarantee is also applied with regard to the persons surrendered from Scotland and that the risk of violating the said guarantee with regard to the surrendered persons has been eliminated because Lukiskes Remand Prison-Closed Prison and Siauliai Remand Prison are prohibited from admitting the suspected and accused persons, who have been surrendered from the United Kingdom on the basis of the European Arrest Warrants for the purposes of conducting their criminal prosecution.

The said guarantee is also applied to those persons, who have been surrendered from the United Kingdom on the basis of two European Arrest Warrants, i.e. for the purposes of conducting their criminal prosecution and serving the imprisonment sentence, because the first acts undertaken after the person's surrender are the procedural acts performed within the pre-trial  investigation  or the hearing of the case in court. Therefore, following his surrender, Mantas Peckys shall not be held in Lukiskes Remand Prison-Closed Prison.” [Emphasis added].

[6] As I understood him, Mr Bissett argued this assurance had nothing to do with Roman Popov. It related to the case of Mantas Peckys. Thus Popov could be returned to prison in Lithuania in violation of his Article 3 right. A specific assurance ought to have been given that Popov would not be housed for any reason in Lukiskes Prison. Further correspondence from Lithuania indicated Popov would require to be assessed, if returned, and the Lithuanian authorities were vague and unspecific as to where this might take place. Again, Mr Bissett stated, return under these circumstances would expose Popov to the real possibility that his Article 3 right would be breached during his sentence or at least during the assessment period prior to the allocation of Popov in an appropriate correction house. Fortified by these submissions, Mr Bissett also argued, relying on Aleksynas, that as the assurance given was ambiguous it ought to be read strictly in light of certain suggestions made in Aleksynas that the Lithuanian authorities were acting in bad faith and the guarantees given could not be trusted. Mr Crosbie for the Crown invited me to reject these arguments. He stated that on a fair reading the assurance applied to all persons returned from the UK, including those convicted in Lithuania and returning to complete a sentence.

[7] I rejected this aspect of the respondent’s case. The principal challenge is based on a failed bad faith argument, rejected in the Aleksynas case. I need not repeat the terms of the challenge in Alksynas which required the court to review a long correspondence between UK and Lithuanian authorities. What the court in Alksynas did say was:

“[93]…The upshot is that I reject the Appellants' full scale assault on the reliability of these assurances. I draw the inference that initial problems of practical application have been successfully addressed. I would certainly draw the inference that the Lithuanian authorities have taken, and are taking, the issue very seriously indeed and that they are extremely keen to batten down the hatches and avoid any possibility of further embarrassment and the charge of administrative failure.  I do not consider there is any ground for distrusting the Lithuanian authorities in relation to the general guarantee given that those being surrendered to serve a sentence will not be placed in Lukiskes remand prison or Siauliai remand prison.”

[8] No material has been placed before me to suggest Roman Popov will be placed in Lukiskes prison or Siaulia prison. On the contrary, I was shown a letter from the Lithuanian Ministry of Justice dated 2^nd May 2014 stating that in terms of his sentence of 26^th June 2009, Roman Popov will be admitted to a correction house (which is not a prison) after his return, once he is processed/assessed, if returned. Processing at a remand institution will take significantly less than 10 days. I was satisfied on the assurance given that this would not be Lukiskes Prison.

[9] A question arises concerning the extent to which assurances given by the governing authorities of category 1 territories are reviewable and how much trust should be given to them. The Framework Decision is clear concerning EU member states that the mechanism governing the smooth operation of the European arrest warrant system is based on a ‘high level of confidence’ , Council Framework Decision of 13  June 2002 on the European arrest  warrant and the surrender procedures between Member States (2002/584/JHA), recital 10. The presumption between member states is that bona fides exists and absent specific grounds for concern that the Lithuanian authorities will not honour obligations, in terms of, or underpinning the Framework Decision, or under international human rights law, I am not persuaded there exists any bar to removal based on false assurance or ambiguity about the scope, content or meaning of the assurances given in Popov’s case. With regard to the fact that Popov will have to be assessed within a remand institution in Lithuania prior to allocation to a house of correction, a similar issue arose in Alksynas, and that alone did not bar surrender but it did require to be considered in the context of the general prison regime:

“13. In the two remaining conviction cases (viz. Mr Aleksynas and Mr Danielius), the Lithuanian authorities have been unable to specify the correctional facility into which these men would be placed upon return to that jurisdiction. This is because the relevant authorities would be taking into account a number of fluid factors including ‘the personality of the offender, [and] the nature and dangerousness of the committed crime’ [File B/tab 10/page 87]. This is no doubt significant for Article 3 purposes inasmuch as the entirety of the adult prison estate in Lithuania therefore falls under scrutiny for present purposes.” per Mr Justice Jay.

Specific Prison Conditions.

[10] Turning then to the second limb of the opposition advanced by Mr Bissett. This was based on the CPT reports (2000 and 2010) and the most recent one dated 2012. Mr Bisset’s position was that the prison conditions in Lithuania are such that, systemically, they are in breach of Article 3. He referred at length to the content of the 2012 report. It makes grim reading, especially with regard to remand conditions which continue to give cause for concern. The remand regime is worse than the regime for convicted prisoners. Remand prisoners are too frequently housed in local police stations, pending on-going investigation, which places are obviously not fit for purpose. I was taken through various portions of the 2012 report concerning, overcrowding, inadequate staffing levels, poorly maintained prison estate, inadequate and inappropriate regime, bullying and violence.

[11] Clearly, if Lithuanian prison conditions systemically breach Article 3, I cannot order the respondent’s surrender to Lithuania,  see Council Framework Decision of 13  June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), recital 13, which provides: “No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”; also s.21(2) of the Extradition Act 2003 mandates discharge and prohibits return, if to do so would be incompatible with the requested person’s Convention rights, within the meaning of the Human Rights Act 1998 (c. 42).

[12] However, to satisfy me that a real or serious risk of a human rights violation exists in fact, I would require to hear compelling evidence in support of that assertion bearing directly upon the likely way in which Roman Popov will be treated on return to his home jurisdiction. In applying the “real risk” test, the presumption is that category 1 territories will be able to fulfil their obligations under the European Convention on Human Rights. In the case of Targosinski v Judicial Authority for Poland [2011] EWHC 312, Toulson LJ stated as much at paragraph 11:

“Given the presumption with which the court starts, it will require clear and cogent evidence to establish that in a particular case the defendant's extradition would have contravened his human rights.”

[13] What, in my view, is wholly inadequate to demonstrate that the bar against surrender has been reached, let alone satisfied, is a lengthy academic gambol through public domain documents such as the exercise engaged in, in the present case. That was neither clearly nor cogently demonstrative of the likely real consequences for Popov should surrender be ordered. Similar specific observations have been made before about the essential probative requirements needed to justify discharge of a requested person, in other cases, involving prison conditions in EU member states and potential article 3 violations. For example:

 “… [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.” Per Mitting J, at paragraph 15 of his judgment in Tworkowski v Judicial Authority of Poland [2011] EWHC 1502 (Admin).

[14] In the present case there is no evidence before me that the respondent’s right under Article 3 will likely be breached, if he is returned to Lithuania. Nor is there anything remotely resembling international consensus that Lithuanian prisons are systemically below an acceptable international standard, although, clearly, remand conditions continue to give cause for concern. The approach taken in this case, simply, to refer at length to an international report, woefully fails to satisfy the test set, to challenge a compulsory return to a category 1 territory, on the basis of a likely human rights violation. In my view, even in those cases when expert testimony of a general nature is proffered, in addition to critical public domain reports about prison conditions, it will be difficult to establish that a real risk of human rights violation exists, in any given case (though not impossible, viz, Campbell), because of the high level of confidence which must attach to assurances to the contrary given by states of the European Union, that are parties to the European arrest warrant regime. For example:

“35 In my view, the judge was correct that the appellant would not be at risk of suffering mistreatment sufficient to engage Article 3 of the Convention. As I have explained the test to be applied to submissions pursuant to Article 3 of the Convention is high. There is no doubt that Professor Morgan's reports are deeply troubling. His expertise is unrivalled and his standing world class. Professor Morgan states that, in his view, the conditions at Lukiskes prison could be described as “inhuman and degrading”. However, the conditions he describes do not compare with the conditions as found by the European Court to have existed in the case of Kalashnikov. In his evidence Professor Morgan accepted that he was not applying or using the words “inhuman and degrading” in the legal sense of the terms. So his assertion that the prison conditions were inhuman and degrading did not mean that the appellant's extradition to Lithuania would inevitably involve a breach of his Article 3 rights. There is no evidence about how long the appellant will be on remand and detained in the conditions Professor Morgan describes at Lukiskes remand prison. It is simply assumed that bail will not be available. The Lithuanian authorities have confirmed in their 22 June 2010 letter that they are aware of their obligations pursuant to the Convention. Given the assumptions we are obliged to make I cannot see that we can find that the Lithuanian authorities will not take steps to ensure that the appellant's Convention rights are protected, both on remand or after conviction, should that follow. Based on the extensive jurisprudence on Article 3 and evidence before the court about prison conditions in Lithuania, my view is that the judge was correct that the appellant would not be at risk of suffering mistreatment sufficient to engage the article. “ Ivan Janovic v Prosecutor General's Office Lithuania [2011] EWHC 710 (Admin) per Lord Justice Jackson and Mr Justice Collins. See also Sebastian Bielecki v The Lord Advocate on behalf of the Republic of Poland [2010] HCJAC 64.

[15] Finally, the circumstances before me are materially different from those in Badre v Italy [2014] A.C.D. 93 where discharge of a requested person was ordered following a Rule 61 pilot decision of the ECtHR in Torreggiani v Italy (requests nos. 43517, 46882, 55400, 57875, 61535 of 09 and 35315 and 37818 of 10) which condemned the chronic severe structural and systemic overcrowding in Italy’s prisons. In Badre the Strasburg pilot decision inversed the normal presumption in favour of category 1 states acting compatibly with international human rights obligations and, absent specific assurances to the contrary, discharge of the requested person was granted, on appeal.

Conclusion.

[16] Accordingly, I reached the view that the opposition to this application for an extradition warrant is ill conceived, inadequate and must fail. I am satisfied that extradition in this case is compatible with Roman Popov’s Convention rights, thus, in terms of s. 21(3) of the Extradition Act 2003, there being no other bar to extradition, on 13^th November 2014, I ordered the return of Roman Popov, to serve his sentence in Lithuania.

Sheriff T Welsh QC

Edinburgh

16^th December 2014.