Prosecutor General's Office (Lithuania) v Michailov [2024] EWHC 3001 (Admin)

"(1) Jane (no.1) 14. In Jane v Lithuania [2018] EWHC 1122 (Admin) ('Jane (no 1)) the appellant appealed against an order for his extradition pursuant to an accusation EAW. He had contended that there was a real risk that his rights under art. 3 would be infringed because of a threat of violence by a non-state agent and/or because of conditions in Lithuanian remand prisons generally. The Divisional Court (Hickinbottom LJ and Dingemans J, as he then was) reviewed previous case law which showed that there was an international consensus that there was a real risk of treatment contrary to art. 3 in Lukiškes and Šiauliai remand prisons, principally because of overcrowding and very bad living conditions. It therefore became incumbent upon Lithuania to demonstrate by clear and cogent evidence, that prison conditions had improved to such an extent that the previous view should not prevail". 15. The Divisional Court held that the DJ had fallen into error because Lithuania had failed to adduce any such evidence. It considered fresh evidence, including the evidence of a Lithuanian lawyer Mr Liutkevicius (who is the Chief Legal Officer of the Human Rights Monitoring Institute, and has conducted extensive research into the protection of human rights in the Lithuanian criminal justice system), and a report published in 2018 by the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ('the CPT') on conditions in remand prisons. The Divisional Court concluded that, although Lithuania had taken commendable steps to improve conditions in remand prisons, there remained a real risk that a surrendered person held in Lukiškes or Šiauliai remand prison would suffer inhuman or degrading treatment contrary to art. 3. The appeal was then stayed, in accordance with the procedure laid down by the Court of Justice of the European Union ("

'1. All persons surrendered under an accusation warrant from the United Kingdom will be held in Kaunas Remand Prison, Lukiškes Remand Prison-Closed Prison or Šiauliai Remand Prison, whereby they will be guaranteed a minimum space allocation of no less than 3 square metres per person and held in compliance with Article 3 of the European Convention on Human Rights. 2. Persons surrendered under a conviction warrant that may spend a maximum of 10 days at one of the remand centres set out in clause 1 will be subject to the same guarantees and will be housed in cells with a minimum space allocation of no less than 3 square metres per person in compliance with Article 3 of the European Convention on Human Rights. 3. All persons held in Lukiškes Remand Prison-Closed Prison or Šiauliai Remand Prison as per clause 1 and 2 above will only be held in the refurbished or renovated parts of the prisons and in compliance with Article 3 of the European Convention on Human Rights." (2) Jane (no.2) 17. Mr Jane's appeal then came back before the Divisional Court. In Jane v Lithuania [2018] EWHC 2691 (Admin) ('

'1. All persons surrendered from the United Kingdom will be guaranteed a minimum space allocation of no less than 3 square metres per person and held in compliance with Article 3 of the European Convention on Human Rights. 2. All persons surrendered will not be required to serve any part of their sentence at unrenovated premises (blocks/wings) of Alytus Correctional House, Marijampolé sector (subdivision) of Marijampolé Correctional House and sector no 1 and no 2 of Pravieniškes Correctional House-Open Prison Colony. 3. All persons surrendered from the United Kingdom will be detained in conditions reducing a risk to inter prisoner violence/disease transfer and drug influences. 4. All persons surrendered from the United Kingdom will be guaranteed the protections of the European Convention on Human Rights. 5. Persons surrendered will be housed in cell-type accommodation, where possible.' (3) Bartulis 19. In Bartulis the Divisional Court heard three appeals against orders for extradition to Lithuania pursuant to accusation or conviction EAWs. Their grounds of appeal related to what were said to be inhuman and degrading conditions at three male prisons, namely Alytus, Marijampolé and Pravieniškes Correction Houses, and in particular to whether the Lithuanian authorities could adequately protect extraditees against the risk of violence by other prisoners. Such violence had been prevalent because of a dangerous "caste system" which formed part of the prisoners' sub-culture, and was at least partly related to the use of dormitory-style accommodation in the correction houses. 20. The court considered a report on the Lithuanian prison estate published by the CPT in June 2019, following visits to Lithuanian prisons in April 2018, which found – amongst other very unsatisfactory features - "truly extraordinary levels of inter-prisoner violence intimidation and exploitation", and incidents of excessive force being used by prison staff. The court also considered an action plan, approved on 27 September 2018, which the Lithuanian government had developed in response to the CPT's findings. It considered further information and assurances from Lithuania, and fresh evidence as to prison conditions, including a report dated 13 September 2019 by Mr Liutkevicius. 21. The court concluded, at [118], that the problems of the caste system and of inter- prisoner violence were real, not fanciful. The nature of the accommodation in correction houses was important, because unofficial hierarchies are better able to operate in dormitory-style accommodation, particularly when (as was the case) staffing levels were low. Lithuania had, however, responded positively to the CPT 2019 report. Although the steps thus far taken, or in hand, had not abolished the problem completely, the court at [121] considered that they constituted an adequate response. The court referred in particular to the allocation of specific funding; the increase in front-line staffing; the existing and planned refurbishments; the displacement of ring-leaders and their assistants; the reduction in the prison population, which gave the prison authorities more flexibility as to the moving of prisoners; the ready access by prisoners to lawyers and the domestic courts; and the heightened focus on the problem, which meant that Lithuania was well aware of the impact if an extradited person were to suffer serious harm. 22. At [125] – [127] the court concluded: '125. There is no consensus amongst Member States that the presumption is lost. There is no evidence that another Member State had declined to extradite to these three correction houses. There is no 'pilot judgment' from the ECtHR concerning Lithuanian correction houses. 126. Taking all these factors together, we conclude, after a careful balancing exercise, that the presumption of compliance has not been displaced. Without the Action Plan and the evidence of implementation, real if incomplete, our decision might have been otherwise. 127. Given our conclusion on the presumption, we are not in the position of seeking to rely on the assurances offered. It is important nevertheless to stress that, once given, they must be adhered to in respect of any prisoner extradited from the UK to Lithuania, since the terms of the assurances are offered expressly to all such. Breach of such assurances might prove significant in future.' 23. The appeals based on alleged breaches of art. 3 were therefore dismissed. 24. Lukiškes remand prison was closed in July 2019. Thus for present purposes, the effect of the three decisions to which I have referred is that Lithuania has lost the benefit of the presumption of compliance with art. 3 in relation to the only remand prison where Mr Besan is likely to be held, namely Šiauliai (Jane (no.1)), but the August 2018 assurance has been held to be sufficient to exclude any real risk of a breach of art. 3 rights (Jane (No. 2)). Lithuania has not lost the benefit of the presumption in relation to detention in a correction house. (4) The assurance of 3 April 2020 25. Subsequent to the decision in Jane (no. 2), the Director General of the Prison Department informed the CPS, by a letter dated 3 April 2020 that, in view of the danger caused by the spread of Covid-19, the guarantees given on 7 August 2018 and 8 July 2019 would no longer be applied. In their place he issued a new assurance applicable to all persons surrendered from the United Kingdom pursuant to an EAW for the purpose of a criminal prosecution. The material part of this assurance, which remains in force, is in the following terms: '1. All persons surrendered from the United Kingdom will be guaranteed a minimum space allocation of no less than 3 square metres per person and held in compliance with Article 3 of the European Convention on Human Rights. 2. All persons surrendered from the United Kingdom, if held in Šiauliai Remand Prison, will only be held in the refurbished or renovated parts of the prison and in compliance with Article 3 of the European Convention on Human Rights. 3. All persons surrendered from the United Kingdom, if convicted, that may spend a maximum of 10 days at Šiauliai Remand Prison will be subject to the same guarantees as contained in clauses 1 and 2. We also draw to your attention that due to the quarantine regime introduced by the decision of the Government of the Republic of Lithuania, in view of the danger caused by the spread of COVID-19 disease, the work of Lithuanian institutions is encumbered, which might have impact on the implementation of the assurance. 26. The final paragraph of that letter has been referred to as 'the Covid caveat', and I shall adopt that convenient shorthand term. 26. In Mr Bazys' case, the DJ wrongly understood that that assurance applied not only to those held in remand prisons in Lithuania but also to those serving sentences in correction houses. In May 2021 Lithuania confirmed that the 3 April 2020 assurance applies only to those surrendered pursuant to accusation EAWs: clauses 1 and 2 relate to surrendered persons whilst on remand, clause 3 relates to the same persons when they become inmates following conviction. The assurance does not refer to those surrendered under conviction EAWs. It is therefore relevant to Mr Besan's case but not to Mr Bazys' case. (5) Gerulskis 27. The assurance of 3 April 2020 was considered by a Divisional Court in Gerulskis v Prosecutor General's Office of the Republic of Lithuania [2020] EWHC 1645 (Admin) ("Gerulskis"). The appellants in that case argued that the court could not have any confidence in assurances provided by Lithuania, having regard to evidence that assurances had been breached in particular cases, including that of Mr Jane, and having regard also to the Covid caveat. The court (Dingemans LJ and Garnham J) rejected those submissions, and concluded that there was nothing to suggest a real risk of treatment contrary to art. 3 if the appellants were extradited to Lithuania. 28. It was held, at [52], that the only proven breach was that Mr Jane had been held at a remand prison other than those identified in the assurance dated 7 August 2018. However, the most material part of the assurance, that relating to personal space, had been honoured, and Mr Jane had not suffered treatment in breach of art. 3. In those circumstances, the breach of the assurance was not such as would justify the court ignoring the assurances given by Lithuania. 29. As to the Covid caveat, Dingemans LJ at [58] expressed concern that the wording of a letter dated 3 April 2020 suggested that Lithuania did not feel bound to honour assurances given to the courts of England and Wales, but concluded that the general assurance given on that date confirmed the most material assurances (as to personal space and as to extradited persons only being held in the refurbished or renovated parts of Šiauliai remand prison) and showed that there was no real risk of impermissible treatment contrary to art 3. There was nothing to suggest that the assurances provided by the Prison Department of the Ministry of Justice should be either discounted or ignored. 30. Dingemans LJ went on to say, at [60], that - '… Lithuania's practice of providing general assurances, and then replacing them as prison conditions improve, risks creating problems of technical breaches of assurances. An assurance about an individual prisoner, once given, must be complied with until the expiry of the prisoner's sentence of imprisonment." 31. However, on the facts, the court concluded that there was nothing to suggest a real risk of impermissible treatment contrary to art. 3 if Mr Gerulskis, or another appellant whose appeal was heard at the same time, were extradited to Lithuania. 32. In a letter dated 8 February 2021, the Prison Department gave an assurance that Mr Bazys, and a number of other men whose extradition from the United Kingdom was sought pursuant to convictions EAWs, would not serve their sentences in Šiauliai remand prison if surrendered. This was because of a national regulation which provided that only persons who had been sentenced to more than 10 years' imprisonment could be allocated to serve their sentences in Šiauliai remand prison. 33. The appellant in Bernotas v Lithuanian Judicial Authority [2021] EWHC 1410 (Admin) ('

"77. The principle of mutual recognition on which the European arrest warrant system is based is itself founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter (see, to that effect, judgment in F., C-168/13 PPU, EU:C:2013:358, paragraph 50, and, by analogy, with respect to judicial cooperation in civil matters, the judgment in Aguirre Zarraga, C-491/10 PPU, EU:C:2010:828, paragraph 70). 78. Both the principle of mutual trust between the Member States and the principle of mutual recognition are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, Opinion 2/13, EU:C:2014:2454, paragraph 191). 79. In the area governed by the Framework Decision, the principle of mutual recognition, which constitutes, as is stated notably in recital (6) of that Framework Decision, the ‘cornerstone’ of judicial cooperation in criminal matters, is given effect in Article 1(2) of the Framework Decision, pursuant to which Member States are in principle obliged to give effect to a European arrest warrant (see, to that effect, judgment in Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 36 and the case-law cited). 80. It follows that the executing judicial authority may refuse to execute such a warrant only in the cases, exhaustively listed, of obligatory non-execution, laid down in Article 3 of the Framework Decision, or of optional non-execution, laid down in Articles 4 and 4a of the Framework Decision. Moreover, the execution of the European arrest warrant may be made subject only to one of the conditions exhaustively laid down in Article 5 of that Framework Decision (see, to that effect, judgment in Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 36 and the case-law cited). 81. It must, in that context, be noted that recital 10 of the Framework Decision states that the implementation of the mechanism of the European arrest warrant as such may be suspended only in the event of serious and persistent breach by one of the Member States of the principles referred to in Article 2 TEU, and in accordance with the procedure provided for in Article 7 TEU. 82. However, first, the Court has recognised that limitations of the principles of mutual recognition and mutual trust between Member States can be made ‘in exceptional circumstances’ (see, to that effect, Opinion 2/13, EU:C:2014:2454, paragraph 191). 83. Second, as is stated in Article 1(3) thereof, the Framework Decision is not to have the effect of modifying the obligation to respect fundamental rights as enshrined in, inter alia, the Charter. 84. In that regard, it must be stated that compliance with Article 4 of the Charter, concerning the prohibition of inhuman or degrading treatment or punishment, is binding, as is stated in Article 51(1) of the Charter, on the Member States and, consequently, on their courts, where they are implementing EU law, which is the case when the issuing judicial authority and the executing judicial authority are applying the provisions of national law adopted to transpose the Framework Decision (see, by analogy, judgments in Dereci and Others, C-256/11, EU:C:2011:734, paragraph 72, and Peftiev and Others, C-314/13, EU:C:2014:1645, paragraph 24). 85. As regards the prohibition of inhuman or degrading treatment or punishment, laid down in Article 4 of the Charter, that prohibition is absolute in that it is closely linked to respect for human dignity, the subject of Article 1 of the Charter (see, to that effect, judgment in Schmidberger, C-112/00, EU:C:2003:333, paragraph 80). 86. That the right guaranteed by Article 4 of the Charter is absolute is confirmed by Article 3 ECHR, to which Article 4 of the Charter corresponds. As is stated in Article 15(2) ECHR, no derogation is possible from Article 3 ECHR. 87. Articles 1 and 4 of the Charter and Article 3 ECHR enshrine one of the fundamental values of the Union and its Member States. That is why, in any circumstances, including those of the fight against terrorism and organised crime, the ECHR prohibits in absolute terms torture and inhuman or 14 degrading treatment or punishment, irrespective of the conduct of the person concerned (see judgment of the ECtHR in Bouyid v. Belgium, No 23380/09 of 28 September 2015, § 81 and the case-law cited). 88. It follows that, where the judicial authority of the executing Member State is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State, having regard to the standard of protection of fundamental rights guaranteed by EU law and, in particular, by Article 4 of the Charter (see, to that effect, judgment in Melloni, C-399/11, EU:C:2013:107, paragraphs 59 and 63, and Opinion 2/13, EU:C:2014:2454, paragraph 192), that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing Member State of the individual sought by a European arrest warrant. The consequence of the execution of such a warrant must not be that that individual suffers inhuman or degrading treatment. 89. To that end, the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN. 90. In that regard, it follows from the case-law of the ECtHR that Article 3 ECHR imposes, on the authorities of the State on whose territory an individual is detained, a positive obligation to ensure that any prisoner is detained in conditions which guarantee respect for human dignity, that the way in which detention is enforced does not cause the individual concerned distress or hardship of an intensity exceeding the unavoidable level of suffering that is inherent in detention and that, having regard to the practical requirements of imprisonment, the health and well-being of the prisoner are adequately protected (see judgment of the ECtHR in Torreggiani and Others v. Italy, Nos 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10, and 37818/10, of 8 January 2013, § 65). 91. Nonetheless, a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing Member State cannot lead, in itself, to the refusal to execute a European arrest warrant. 92. Whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State. 93. The mere existence of evidence that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, with respect to detention conditions in the issuing Member State does not necessarily imply that, in a specific case, the individual concerned will be subject to inhuman or degrading treatment in the event that he is surrendered to the authorities of that Member State. 94. Consequently, in order to ensure respect for Article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of Article 4. 95. To that end, that authority must, pursuant to Article 15(2) of the Framework Decision, request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State."