Janovic v Prosecutor General's Office Lithuania

Extradition to a European Union member state may be resisted for abuse of process, unfair trial, prison conditions or delay, but each ground has a demanding threshold.

Under section 64(5) of the Extradition Act 2003, conduct occurring outside the requesting territory may constitute an extradition offence without asking whether the United Kingdom could prosecute the same conduct extraterritorially. Article 6 requires a real risk of a flagrant denial of justice, while Article 3 requires substantial grounds for believing that extradition would expose the person to a real risk of serious ill-treatment. Section 14 requires an overall judgment on whether delay has made extradition unjust or oppressive. The statutory threshold was met because the unexplained delay, transfer of the prosecution and resulting evidential difficulties created a real risk of trial prejudice.

The appellant appealed under section 26 of the Extradition Act 2003 against an order of the City of Westminster Magistrates’ Court directing his extradition to Lithuania for prosecution for alleged rapes committed in Belarus in April 2000.

The prosecution had begun in Belarus and was transferred to Lithuania in 2005 under a bilateral agreement. The appellant challenged the European Arrest Warrant on abuse of process, extradition-offence, Article 6, Article 3 and passage-of-time grounds. The central issues were whether Lithuania could request extradition for conduct occurring in Belarus, whether the proposed trial and detention created Convention risks, and whether delay made extradition unjust or oppressive.

1. Disposition. The appeal was allowed. The extradition order was quashed and the appellant’s discharge ordered.
2. Abuse of process and extradition offence. The requesting state was presumed to act in good faith. Abuse required evidence that the extradition procedures had been manipulated to oppress or unfairly prejudice the appellant. No such evidence was established. Section 64(5) of the Extradition Act 2003 expressly covers conduct occurring outside the requesting territory. It was therefore unnecessary to determine whether England and Wales could prosecute the conduct extraterritorially. The conduct described in the warrant satisfied section 64(5).
3. Articles 6 and 3. Article 6 required a real risk of a flagrant denial of justice. Lithuania’s Convention and European Union membership, together with the material before the court, did not establish that threshold. The possibility that Belarusian evidence might be used in Lithuania was not, without more, an Article 6 bar. Article 3 required substantial grounds for believing that extradition would expose the appellant to a real risk of serious ill-treatment. The evidence about Lukiskes prison was troubling, but did not establish that threshold on the evidence and assumptions available.
4. Passage of time. Under section 14, delay alone was insufficient. “Unjust” principally concerned prejudice in the trial, while “oppressive” concerned hardship caused by changes in the appellant’s circumstances. The court had to make an overall assessment, with the burden on the appellant and a high, though lesser than Article 6’s, threshold.
5. Application of section 14. The case had been transferred from Belarus to Lithuania five years after the alleged offence. The appellant had not been informed of the prosecution before his arrest in 2010. Delay created serious difficulties in recalling events, locating alibi witnesses and obtaining oral evidence from Belarus. The only evidence directly implicating him came from a witness whose memory and availability were problematic. In those special circumstances, extradition was unjust by reason of the passage of time. The hardship of separation from his family did not independently make extradition oppressive.

• City of Westminster Magistrates’ Court: District Judge Wickham ordered the appellant’s extradition on 20 August 2010.
• High Court (Administrative Court): The Divisional Court allowed the appeal, quashed the extradition order and ordered the appellant’s discharge.