Klimas, R (on the application of) v Prosecutors General Office of Lithuania

Neutral Citation Number: [2010] EWHC 2076 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Case No. CO/1579/2010 Royal Courts of Justice Strand London WC2A 2LL Date: Thursday, 8 July 2010 B e f o r e: MR JUSTICE MITTING - - - - - - - - - - - - - - - - - - - - - Between: THE QUEEN ON THE APPLICATION OF ARVDAS KLIMAS v PROSECUTORS GENERAL OFFICE OF LITHUANIA Claimant Defendant - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - MR J ATLEE (instructed by Atlee Chung and Company Solicitors) appeared on behalf of the Claimant MISS R HILL (instructed by Crown Prosecution Service) appeared on behalf of the Defendant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE MITTING: On 6 December 2001, a domestic arrest warrant was issued by a court in Lithuania for the arrest of the appellant. On 27 Novemeber 2005, a European arrest warrant was issued. It was certified by the Serious Organised Crimes Agency on 10 July 2009. On 21 November 2009, the appellant was arrested under the warrant and produced on the same day at the City of Westminster Magistrates Court. On 2 February 2010, the court ordered the appellant's extradition. On the following day he gave notice of appeal relying on a number of grounds which are not now pursued. 2. He relies now on a single ground: that his extradition to Lithuania would put the United Kingdom in breach of its obligations under Article 3 of the European Convention on Human Rights because of prison conditions in Lithuania. The appellant relies on the 2009 US Department of State report on the state of affairs in Lithuania which includes a passage on prison conditions. That report was published on 11 March 2010. 3. Miss Hill accepts that it was not available to the appellant to deploy before the district judge and accepts therefore that the conditions in section 27(4) of the Extradition Act 2003 are arguably met. She accepts the first condition is met: the evidence was not available at the hearing. But she does submit it would make no difference. That is the essential issue I have to decide. The ground upon which extradition could be refused is that set out in section 21 which provides: "1) If the judge is required to proceed under this section by virtue of section 11 or 20, he must decide whether the person's extradition would be compatible with the convention rights within the meaning of the Human Rights Act 1998. 2) If the judge decides the question in subsection 1 in the negative, he must order the person's discharge." 4. Mr Atlee for the appellant submits that the US Department of State report demonstrates that prison conditions in Lithuania are such that if the appellant were to be extradited to Lithuania and detained, his rights under Article 3 of the Convention would be breached, albeit by a signatory to the Convention. Accordingly, he submits, his extradition is prohibited under section 21(2). He submits, as I understand it, that the standard Strasbourg test to foreign Article 3 cases applies: where there are substantial grounds for believing there is a real risk that an individual will be subjected to treatment which would, if it occurred in a Convention state, put that state in breach of its obligations to him under Article 3, the United Kingdom would be in breach of its obligations to him under the same article by removing or extraditing him to that state. I do not accept that this appellant's extradition is prohibited by section 21(2) for two reasons; first one of principle and secondly one of fact. 5. For many years now, evidence had frequently been deployed by those who wish to avoid extradition to category 1 Convention states by pointing to shortcomings in the conditions in which prisoners are detained in the requesting state. The issues arise in a number of ways. First it is submitted that conditions are so bad that by themselves they put the state in breach of its obligations under Article 3 to prisoners within its prison estate. 6. 7. Secondly, it is alleged that the facilities for protecting prisoners from violence by other prisoners are inadequate and so likewise puts the requesting state in breach of its obligations under Article 3. Thirdly, it is submitted that conditions are so poor that there is a risk of suicide by the extradited person if returned and consequently it would infringe his rights under articles 2 and 3 to extradite him. 8. Much time and effort has been deployed in adducing evidence about and debating such issues. In Jan Rot v District Court of Lublin, Poland, a case I decided about a fortnight ago, I drew attention to the reasoning of the Strasbourg court in KRS v the United Kingdom, a decision of the fourth section given on 2 December 2008, and held as part of my reasoning: "That where prison conditions in a category 1 Convention state were criticised in the course of extradition proceedings, it was not necessary for the district judge to examine the arguments for and against because as a matter of principle it was for the requesting state to put its house in order and if it did not, it was a matter between the individual and the requesting state and ultimately the Strasbourg court and the requesting state if the individual complained that his Article 3 rights were infringed." The foundation for that proposition is not an extradition case but a removal case. A little needs to be said about the facts in KRS so the reasons of the court can be understood. 9. The United Kingdom wished to remove KRS to Greece under the Dublin II Convention. KRS complained that Greece did not fulfil its obligation not to refoule asylum seekers, so if he were to be removed to Greece, then there was a real risk he would be removed by Greece to his home country in breach of his rights under Article 3. Secondly, he complained about the conditions under which asylum seekers were treated in Greece and in particular the conditions in which those who were detained were treated. He complained to the Strasbourg court that if the United Kingdom were to remove him, then the United Kingdom would be in breach of its obligations to him under Article 3 on both counts. 10. The court examined conditions in Greece and rejected his application as manifestly ill-founded. In so doing, it said the following: "The court recalls that in this connection, that Greece as a contracting state has undertaken to abide by its Convention obligations and to secure to everyone within their jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 3. In concrete terms, Greece is required to make the right of any returnee to lodge an application with this court under Article 34 of the Convention and request interim measures under rule 39 of the rules of the court both practical and effective. SMITH BERNAL WORDWAVE In the absence of any proof to the contrary, it must be presumed that Greece will comply with that obligation in respect of returnees, including the applicant. On that account, the applicant's complaints under articles 3 and 13 of the Convention, arising out of his possible expulsion to Iran, should be the subject of a rule 39 application lodged with the court against Greece following his return there and not against the United Kingdom. Finally, in the Court's view, the objective information before it on conditions of detention in Greece is of some concern, not least given Greece's obligations under Council Directive 2003/9/EC and Article 3 of the Convention. However, for substantially the same reasons, the court finds that where any claim under the Convention to arise from those conditions, it should also be pursued first with the Greek domestic authorities and thereafter in an application to this court." The court will no doubt have had in mind its own decision in the case of Peers v Greece, [2001] ECHR 269 in which it made scathing criticisms about prison conditions in Greece. 11. That unequivocal statement of principle in my view applies not only to removal cases but also to extradition cases. It is not for a domestic court hearing an extradition appeal to go beyond that which the Strasbourg court has decided in relation to removal cases. Mr Atlee submits that the domestic legislation and one of the preambles to the Framework Directive require just that. 12. Section 21 requires the court to decide whether the person's extradition would be compatible with Convention rights. However, that seems to me to be a narrower question than the broad question: would the removal of an individual appellant to a Convention country put the United Kingdom in breach of its obligations to him under Article 3? The short answer is that it would not because there exists a mechanism identified by the Strasbourg court in KRS to ensure that his Article 3 rights are not infringed by the requesting state. Recital 13 of the Framework Directive states: "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." That risk can, in the case of a Convention country, be taken to be eliminated or at least reduced below the level at that which it amounts to a real risk by the rights which an individual appellant has in a Convention country and the real and practical obligations which that country owes to him. 13. Accordingly, and as a matter of principle, I would hold as I did in Jan Rot that when prison conditions in a Convention category 1 state are raised as an obstacle to extradition, the district judge need not, save in wholly extraordinary circumstances in which the constitutional order of the requesting state has been upset -- for example by a military coup or violent revolution -- examine the question at all. If that proposition SMITH BERNAL WORDWAVE goes too far, then it would be necessary to look at the facts in this case to which I now turn. 14. The US State Department report contains the following passage, "Prison and detention centre conditions": "Prison and detention center conditions did not meet international standards. The government permitted monitoring visits by independent human right observers and such visits occurred during the year. Although government measures to upgrade prisons brought them closer to meeting international standards, domestic human rights advocates reported that conditions remained poor in some prisons. According to prison department data as of mid-December, there were 8,562 prisoners, including 363 women and 114 juveniles. In its June 25 report, the CP1 delegation noted that at the Lukiskes prison, it received several allegations from prisoners of physical mistreatment by staff consisting of punches, baton blows and blows with books. In some cases, the mistreatment was said to have been inflicted by drunken prison officers. Physical mistreatment was also alleged at the Pravieniskes 2 Correction Home No 3 and at the Kaunas Juvenile Remand Prison and Correction Home. Four correctional institutions remained overcrowded. For example, the facility in Siauliai had a capacity of 382 inmates after a recent remodeling but held 544. The CP1 report noted that recently renovated cells at the Lukiskes prison were overcrowded, sometimes to "an outrageous degree," with six prisoners in a cell measuring 8 square metres (approximately 86 square feet). In 2008, the ECHR issued a judgment that found one violation by the country involving the probation of inhuman or degrading treatment as provided under the European Convention on human rights. The case related to detention conditions at Lukiskes Remand Prison and in the Rasu prison. As of December 1, the Parliamentary ombudsman had received 267 prisoner complaints, compared with 309 during 2008. Most related to the failure of administrators to give proper attention to prisoners' grievances, which included poor prison conditions; mistreatment by prison department personnel; restrictions on prisoners's rights, such as by censoring their correspondence or failing to allow family visitors; The inadequate medical services; and poor working conditions. ombudsman's investigators found 18 complaints to be justified, while the others were outside the ombudsman's purview. As of December 1, the ombudsman had received two complaints alleging that working inmates received less than they were supposed to be paid; the ombudsman found SMITH BERNAL WORDWAVE both complaints to be groundless. The CP1 report noted that the material conditions in police detention centres it visited in Jonava, Rokiskis, Kupiskis, Siaulai and Trakai displayed a number of major shortcomings and could in some cases be considered inhuman and degrading. The majority of cells were filthy and in a poor state of disrepair, with little or no access to natural light, only dim artificial light, and poor ventilation. At Siaulai city police headquarters, the delegation observed that a juvenile detainee had been kept in a cell with two adults for over a week. In their September response to the CP1 report, authorities acknowledged that only 10 of the country's 39 police detention centres were in good condition and the others did not meet international standards. They indicated they were in the process of closing several of them. Authorities noted that a number of new detention centres were under construction. As of December 1, authorities had not taken action in response to a 2006 ECHR ruling that the country should amend its regulations to eliminate inappropriate monitoring of inmate correspondence. The government permitted independent human rights observers and researchers to visit prisons. Representative of the Office of the Parliamentary Ombudsman made two visits to prisons. Media representatives also visited prisons. Neither the International Committee of the Red Cross nor other international or intergovernmental organisations visited the country's prisons during the year. During the year the government allocated 72 million litas (3 million dollars)for renovation of the prison in Vilnius and two other facilities." What the US State Department report demonstrates is that prison conditions in Lithuania in some detention facilities, but not necessarily all, fall below international standards. 15. I enquired of Mr Atlee and of Miss Hill what the international standards were to which the State Department was referring. Mr Atlee has suggested they were the high level international standards referred to by Lord Bingham in paragraph 88 in Ullah. Miss Hill submitted, to my mind more plausibly, they were the standards adopted by the UN General Assembly in 1955 which apparently laid down acceptable conditions in prisons to which states should aspire. 16. There is all the difference in the world between saying that prison conditions in a state do not meet international standards and saying that any individual returned to spend time in such facilities would inevitably be subjected to ill-treatment of the kind which crossed the high threshold of Article 3, or even that there were substantial grounds for believing there is a real risk that he would be subjected to such treatment. All the US State Department report establishes is that there are significant shortcomings in prison SMITH BERNAL WORDWAVE conditions in Lithuania. It does not begin to establish that this appellant, if extradited to Lithuania, would be subjected to Article 3 ill-treatment or even there are substantial grounds for believing there is a real risk he would be. 17. As the many decisions of the Strasbourg court demonstrate, including that principally relied upon by Mr Atlee, Orchowski v Poland, a decision of the fourth section on 22 October 2009, each case is fact specific. In Orchowski, the applicant was detained in conditions rightly categorised by the court as worse than unacceptable for over six years. He was detained in cells measuring less than 3 metres or in some instances, 2.2 metres square. He entirely lacked privacy. These conditions understandably caused him distress. It is not in the least surprising that the court found in his case in the conditions thus described, that his rights under Article 3 had been infringed by the Polish state. 18. That is not the position here. All the appellant can put before the court in an attempt to prevent his extradition is the proposition that prison conditions in Lithuania are in some instances, below international standards. That falls far short of the threshold which is required to be crossed before the United Kingdom would be in breach of its obligations under Article 3 to the appellant by extraditing him to Lithuania. 19. Accordingly, for both reasons of principle and on the facts, I reject this appeal. SMITH BERNAL WORDWAVE