Kontautas v Siauliai Regional Court, Lithuania

In extradition proceedings, a person who deliberately absented himself from criminal proceedings cannot rely on the absence of a retrial assurance where the statutory exception applies. Extradition is not barred by Article 3 merely because prison conditions in the requesting state are less favourable than those in the requested state. The evidence must establish a real risk of treatment contrary to Article 3. A general allegation of vulnerability, including because of sexual orientation, requires reliable and sufficiently specific evidence. A suicide-risk objection is subject to an exacting test and must be supported by evidence connecting the risk to extradition and showing that the requesting state cannot take adequate preventive measures.

The appellant appealed against a district judge’s order dated 5 December 2014 requiring his extradition to Lithuania under a European Arrest Warrant. He had been convicted in Lithuania of attempted rape after being absent from the criminal proceedings and had almost the whole sentence left to serve.

He challenged extradition on three grounds: the absence of a retrial assurance under section 20 of the Extradition Act 2003; a real risk of Article 3 ill-treatment because of Lithuanian prison conditions and his sexual orientation; and a suicide risk making extradition unjust or oppressive under section 25. The central issues were whether those statutory and Convention bars were established on the evidence.

1. Appeal dismissed. The Divisional Court agreed with the district judge’s findings and conclusions.
2. The section 20 challenge had no merit. The appellant had deliberately left Lithuania after participating in the trial process, and therefore could not rely on the requirement for a retrial assurance under section 20 of the Extradition Act 2003, including sections 20(3) and 20(5). The district judge’s factual conclusion was decisive.
3. The court applied Aleksynas & Ors v Minister of Justice, Republic of Lithuania & Anor [2014] EWHC 437 (Admin). That decision had reviewed extensive evidence concerning Lithuanian conviction prisons and concluded that the evidence did not establish a real risk of Article 3 violations. The material relied on by the appellant, including his experience in 2002, added nothing material to that assessment. The conclusion that general prison conditions did not prevent extradition was unassailable.
4. The evidence concerning homosexual prisoners was extremely thin. Although the district judge recognised cultural hostility towards homosexuals in Lithuania, he was entitled to find that the evidence did not establish a real risk of treatment contrary to Article 3.
5. The suicide-risk challenge under section 25 of the Extradition Act 2003 also failed. The evidence did not show that the appellant’s self-harm was linked to the consequences of surrender. There was a presumption that the Lithuanian authorities would take proper preventive measures, supported by positive evidence of suicide-prevention arrangements. Applying the exacting test identified in Wolkowicz & Ors v Poland [2013] EWHC 102 (Admin), the statutory bar was not established.

• High Court (Administrative Court): the appeal against the district judge’s order was dismissed. The court’s judgment was given by Lord Justice Burnett, with Mr Justice Lewis agreeing.
• District Judge Purdy: on 5 December 2014, ordered the appellant’s extradition to Lithuania and rejected the challenges based on retrial assurances, Article 3 prison conditions and suicide risk.