Prosecutor General's Office (Lithuania) v Michail Michailov [2025] EWHC 1730 (Admin)

“I would conclude that (the RP) suffers from mild General Anxiety Disorder and moderately severe depression, with PTSD emerging only under severe acute stress. … there are several important factors, in combination, that would be likely to provoke suicide were (the RP) to be returned to (the JA).”

“The Three Standardised Assessments which I have undertaken… demonstrate a general weakness and inability of independence of this man. He is highly dependent on his partner and on physical and mental support she constantly provides him every day and night. There is no doubt that since his accident (the RP) has become totally dependent on his partner for most of his physical and mental functions.”

“46. I am mindful that proceedings need to be resolved within a reasonable time scale. Necessarily, for the court to seek further information will, a fortiori, delay the conclusion of the application, what should the court do in this instance? In my judgment, the generic nature of these assurances are deficient, and are incapable of rectification in this particular case whatever information is sought from this JA. It is clear that this JA is unable to detain this RP in such a way as to secure his Art. 3 rights. Any requests for further information would be unlikely to assist this question and I am of the view that the matter should be brought to a close.”

“37. Ms Hinton has characterised these passages as irrational. With respect to the district judge, I am compelled to agree. The finding that the assurances before the district judge, which I reiterate were provided for a different purpose, were "incapable of rectification in this particular case whatever information" was sought from Lithuania is wholly remarkable, particularly in the case of a State which is a member of the Council of Europe and the European Union. So, too, is the sentence, "It is clear that this JA is unable to detain this RP in such a way as to secure his Art 3 rights". 38. In so finding, the district judge appears to have accepted uncritically the submission in paragraph 49 of the respondent’s post-hearing written submissions of 15 October 2021, that "this RP cannot be imprisoned whether in the UK or elsewhere because of his vulnerabilities". Those vulnerabilities were described in the most recent medical report before the district judge by Dr Korallo as "mild general anxiety disorder and moderately-severe depression, with PTSD emerging only under severe stress". In addition, the occupational health practitioner, Ms Ellis, had referred to the respondent as having become totally reliant on his partner, with the result that he would "struggle to survive in any jail without the close personal support he currently has". 39. One does not need the benefit of hindsight to see the complete unreality of the proposition that the respondent could never be imprisoned anywhere in the world, no matter what the offence and no matter what measures might be put in place to address his needs, without a real risk of him suffering Article 3 ill treatment. But, in any event, hindsight is available. After the hearing before the district judge, the respondent was able to inflict grievous bodily harm on another individual, despite all [his] problems. As a result, he is currently serving a lengthy sentence of imprisonment in HMP Maidstone. As far as I am aware, it has not been submitted on his behalf that the respondent is currently being subjected to Article 3 ill-treatment.”

“The position of a wheelchair user in prison is, I find, a matter of concern; at least where imprisonment is to be in a country where this court has found prison conditions to be problematic. This point emerges from the recent judgment if McGowan J in Giana v. Romania [2024] EWHC 1613 (Admin). In the light of the witness statement of the respondent’s solicitor mentioned earlier, I note, in particular, what McGowan J had to say at paragraph 35 of her judgment about the possibly problematic nature of another prisoner being deployed to assist the wheelchair-using prisoner with various personal matters. This is a matter which may need to be addressed in due course.”

“RE: INFORMATION ON THE ACCOMMODATION OF PRISONERS WITH DISABILITIES In response to your request of 16 October 2024, which was forwarded by the Ministry of Justice of the Republic of Lithuania, for confirmation there are adjustments in place to accommodate detainees in wheelchairs, we kindly inform you that there is a unit for prisoners with disorders of independence - a separate (local) unit in the penitentiary institution for prisoners serving a custodial sentence who, due to their physical disabilities, chronic illness, age or other reasons, need the assistance of other persons in the areas of mobility and self-care. This unit is in Pravieniškės prison No 2. Please inform us in advance of the planned transfer of the prisoner so that we can prepare for his/her reception and accommodation.”

“6. We note that you have also provided confirmation (your letter 16 October 2024) that “there are adjustments to accommodate detainees in wheelchairs”

“He struggles to support his weight on his good (right) leg and he has frailty which would be restrictive in any event. His upper body strength is likely to have worsened but he previously had high strength so is still able to transfer. If there is a significant deterioration of his frailty and sarcopenia he will require lifting from bed to chair and need help with self-care however the likelihood is difficult to predict on the current evidence. Although the most likely timescale is 2 years for a significant deterioration of his frailty (see prognosis) it could be a few months to a decade.”

“19. There is no doubt that Mr Michailov suffers from moderate Depression and mild Anxiety though the depression may be episodic. He shows some elements of Post-Traumatic Stress Disorder (PTSD), such as hypervigilance, impulsivity, irritability, occasional nightmares, and occasional flashbacks. These are intermittent (twice a year, by his account). When I assessed him he would not, therefore, have met the full criteria for PTSD, as I said in my previous report dated 27/08/2021. Symptoms of PTSD were triggered by acute stress associated with the prison environment or the threat of extradition.”

“[the RP’s] suicidal likelihood increases when he feels hopeless and helpless, and when he has suffered pain and lack of sleep. In those circumstances he can become impulsive and will use any available means to attempt to commit suicide.”

“…he would need to be under a 24 hour watch, especially were he to think that he is likely to be extradited. In Lithuania he would also need to be monitored on a regular basis, at least initially, before he adjusts to the new reality.”

“Physical In my opinion, on the balance of probabilities the mild physical functional restrictions are likely to worsen over the next 2 years to moderate as the frailty progresses, he would then require assistance with self care and transfers. Psychological In my opinion, on the balance of probabilities the mild psychological functional restrictions will not worsen significantly over the next five years.”

“He should have a disabled accessible cell with enough space with an adapted shower, toilet, grab bars and wheelchair on the ground floor of the prison. He should have access to helpers who are paid for by the prison and can help if he falls on the floor or is unwell and needs help getting his medication and food. He should be given a regular dose of antidepressant and pain killers (not NSAIDs) for symptomatic control of his symptoms.”

“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….. 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.”

“In view of his severe disability and the fact that he suffers from urinary and faecal incontinence, the length of time during which he was detained without receiving any rehabilitative treatment, and his inability to take a shower without the help of a fellow prisoner, are factors that have subjected the applicant to hardship exceeding the unavoidable level of suffering inherent in detention. Those circumstances amount to degrading treatment and thus to a breach of Article 3 of the Convention. The absence of any indication that the authorities acted with the intention of humiliating or debasing the applicant does not alter that finding in any way…”

“76….several medical reports as well as findings by the domestic courts…..confirmed the fact that the applicant needed constant help for current tasks, help that was to be provided by a personal assistant…. In spite of this assessment, the applicant did not have the benefit of such assistance, except for when he was helped on an official basis by some inmates who provided collective assistance…or unofficially by fellow inmates….. However, the Court reiterates that it has already voiced doubts as to the adequacy of assigning unqualified people responsibility for looking after an individual suffering from a serious illness….. Furthermore, the Court has already found a violation of Article 3 of the Convention in circumstances where prison staff felt that they had been relieved of their duty to provide security and care to more vulnerable detainees whose cellmates had been made responsible for providing them with daily assistance or, if necessary, with first aid….. 78. In the present case, it cannot be ascertained whether the prisoners who agreed to assist the applicant were qualified to provide appropriate support or whether the applicant actually received such support. Nor does it appear from the case file that the applicant received appropriate psychological support during his periods in hospital or prison, given that he displayed severe psycho-organic syndrome and at times symptoms of depression... Such help cannot therefore be considered suitable or sufficient. 79. Furthermore, the Court cannot ignore the applicant’s submissions, uncontested by the Government, that the wheelchair was provided to him at own expense…., in the lack of any assistance to that effect from the prison authorities…”

“…although …the applicant had the assistance of various fellow inmates, the Court is particularly concerned about the quality of their assistance, as they had neither been trained nor have the necessary qualifications to provide… assistance to a person such as the applicant with a complex condition in the area of mental disability; ….In that connection, the Court refers to the medical evidence…showing that the applicant’s seizures were frequent and could occur at any time of the day or night, and involved episodes of high irascibility, aggressive behaviour and complete loss of self-control. Therefore, the applicant must have known that at any moment he risked a medical emergency with very serious effects and that no qualified medical assistance was available. Hence, leaving him without specialised assistance in such situations must have given rise to considerable anxiety on his part.”

“74. The Court has also held that detaining a disabled person in a prison where he could not move around and, in particular, could not leave his cell independently, amounted to degrading treatment… Similarly, the Court has found that leaving a person with a serious physical disability to rely on his cellmates for assistance with using the toilet, bathing and getting dressed or undressed, contributed to its finding that the conditions of detention amounted to degrading treatment…..”

“….. Article 3 imposes an obligation on a state not to remove a person to a country where there are substantial grounds for believing that the person would face a real risk of being subjected to ill-treatment contrary to Article 3 in that country. In order to come within Article 3, the ill-treatment must attain a minimum level of severity, which depends upon all the circumstances of the case including the duration of the treatment, its physical and mental effects and, in appropriate cases, the sex, age and health of the victim…… Where the requesting state is a signatory to the Convention and a member of the Council of Europe (as is Lithuania, the requesting state in the present case), there is a presumption that that state will comply with its obligations under Article 3 of the Convention. That presumption may be rebutted by clear, cogent and compelling evidence, amounting to something approaching an international consensus, identifying structural or systemic failings. If the benefit of the presumption is lost as a result of such authoritative evidence, the requesting state must show by cogent evidence that there is no real risk of a contravention of Article 3 in relation to the particular requested person in the prisons in which he is likely to serve his sentence. Assurances as to the treatment of individuals may be given by a non-judicial authority and those assurances will then need to be evaluated…..”

“34….they must provide, so far as is reasonably practicable, a response which meets the concerns in respect of that specific individual. That is not to say that very lengthy documents or care plans need always be provided by way of reply. The starting point must be that in the case of an EU member state there is a rebuttable presumption that there will be medical facilities available of a type to be expected in a prison….From that starting point it might not necessary to say very much more…. 35. However, in other cases, where the treatment or management of the illness or condition is more complex, more detail may be required… The reason is that it is self-evident that the range of medical care that is provided in prisons is necessarily and inevitably more limited than that which is available in the outside world … and it is also obvious that the sort of medical care which can be provided in prisons is subject to constraints arising from security requirements and the like. Thus, in some cases it may be necessary for the requesting state to provide specific details of what concrete steps will be taken to address the specific issues arising from the defendant's illness to ensure that he does not suffer severe hardship or oppression by reason of his incarceration resultant on extradition. In such a case, broad generalised assertions to the effect that the prison has a clinic, or that prisoners are entitled to health care, or that (unspecified) medicines are available, may not be enough.”

“34. There may be circumstances in which the offer and acceptance of assistance between prisoners is a commendable thing. Assistance with literacy, language or communication may be beneficial and appears to be unlikely to affect the dignity of the recipient of such help. However that is not to say that unqualified fellow prisoners should be required to provide care and support to a detainee confined to a wheelchair. It is not difficult to see how that would detrimentally affect the dignity of the individual, particularly in showering or bathing. 35. In this case the Judge did not deal adequately with the material available to her at the hearing. The “appointment of a supporting convict” is not an adequate substitute for professional care. The Judge did not find there to be any concerns arising from the lack of adequate day to care-paramedical care, rather she concentrated on the provision of care by a GP. It is apparent that the Appellant needs regular care and help with getting to a bathroom, (possibly on a different floor), and other mundane tasks which should not be provided by an untrained fellow convict. There is a real risk that that is capable of “humiliating and debasing him”

“As Julian Knowles J set out in Magiera…..¸ the court is required to undertake an intensely fact specific approach. That exercise can only properly be undertaken where the requesting state has provided a response which deals with the specific concerns and needs of the individual…. The court would have been assisted by information about the location of bathroom facilities, provision of safely rails and other adjustments. Particularly in light of the apparent complaint that the shower facilities are on the first floor, if that is right, this Appellant might only have access to the shower or the exercise yard but not both. 39……. In this case the provision offered was the help of a "supporting convict" backed up by recourse to Art 598 so that the sentence would be postponed if it became "impossible" for the individual to continue. As is clear from Magiera the requesting state should not be expected to provide a detailed care plan or similar but information about the special measures available must be part of the Judge's assessment.”

“Upon his arrival at the place of pre-trial detention, as soon as possible, but no later than within 5 working days, M. Michailov will be examined by a psychologist. During the initial examination, an assessment of suicide risks, relevant stressors and emotional state will be carried out. Having identified a suicide risk, the psychologist must, within 3 working days, carry out a psychosocial assessment of the person and, if necessary, together with the person in question make a self-protection plan. The psychologist will also make recommendations to the staff responsible for the supervision of the detainee regarding the specific elements of the supervision (intensified individual supervision and its intensity levels are determined).”

“After Michail Michailov is placed in pre-trial detention, his state of health will be thoroughly assessed by health professionals, the need for treatment, nursing and care will be identified, and an action plan will be set up to ensure the necessary health care services for the person. Depending on the identified specific health needs of Michail Michailov, upon recommendations of the medical practitioner who will have assessed his condition, certain measures appropriate to M. Michailov's physical and mental health condition may be provided/arranged/installed/adapted. …. As regards the access to personal health care services by a person having the status of a detainee, please note that personal health care services for both detainees and convicts are provided in accordance with the general national legislation on health care system, i. e. the same as for persons living in freedom. The frequency of visits at health care professionals will depend on the M. Michailov's state of health and the need for health care considering the identified health problems. All prisons, including those where pre-trial detention is carried out, have Primary Health Care Units where heath care services are provided by general practitioners, dentists and psychiatrists. Outside the working hours, health care services shall be provided by nursing specialists within the scope of their competence. Primary health care services shall be provided 12 hours a day on working days, 5-6 hours a day on non-working days, and at other times they shall be provided in other health care institutions (Operating outside the prison). In case of acute medical conditions, an ambulance is called. If a person needs personal health care services, which are not provided at the place of detention, the person may be referred to a specialised health care unit of the Lithuanian Prison Service or to another health care institution (outside prison) capable of providing the necessary health care services.”

“To answer your questions, we would like to inform you that there are cells specially adapted for persons in wheelchairs in Kaunas Prison and Pravieniškės Prison No 2. These cells and access to them have been installed in accordance with the laws of the Republic of Lithuania regulating the adaptation of structures and infrastructure to the special needs of disabled persons. (emphasis added) …. In Kaunas Prison there is a wheelchair-accessible cell with a WC, sink and shower, equipped with armrests, a chair in the shower and a widened entrance. Convicts in a wheelchair shall serve their sentence in a unit of Pravieniškės Prison No 2 which is specially adapted to the convicts who due to their physical disability, chronic diseases, age or other reasons require assistance in mobility and personal care. This unit is equipped with ramps, has widened entrances to the premises, there are armrests installed in the cell, WC and shower. Convicts (detainees) in wheelchairs are usually assigned to the cell with a WC, sink and shower having armrests equipped there, a shower chair and a widened entrance. The minimum personal space for a detainee in the cell must be at least 3.6 sq. m. The minimum personal space for a convict serving his sentence in a specialised social care unit must be at least 5 sq. m.”

“….Michail Michailov, if surrendered to Lithuania on the basis of the European arrest warrant, would be provided with the conditions in accordance with the requirements of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.”