Dalikas, R (on the application of) v Deputy Prosecutor General of Lithuania & Minstry of Justice, Lithuania

At the permission stage of an extradition challenge, an applicant must show an arguable case that extradition would breach article 3 or article 8. Evidence of breaches in some foreign prisons does not establish a general article 3 risk in every prison. A category 1 Convention state is presumed to comply with its article 3 obligations unless substantial contrary evidence is shown. An assurance may answer a general remand risk where there is no sufficient reason to doubt its fulfilment.

Under article 8, the court must conduct the required balancing exercise. The fact that an applicant will shortly have served the custodial sentence underlying a conviction warrant may itself create an arguable proportionality ground. The same consideration may extend to an accusation warrant, although the result depends on the particular facts.

The claimant challenged a District Judge’s order for his extradition to Lithuania under two European arrest warrants. One warrant concerned a Lithuanian conviction and activated suspended sentence. The other concerned accusations of theft and attempted theft.

Before the District Judge, the claimant relied on articles 3 and 8 and on proportionality under sections 21 and 21A of the Extradition Act 2003. The District Judge rejected the challenges. Permission to appeal was refused on paper, and the claimant renewed the application before the Administrative Court.

The issues were whether there were arguable grounds concerning prison conditions and risk arising from the claimant’s bisexuality, and whether the claimant’s time in United Kingdom custody made extradition disproportionate, particularly because he would shortly have served the Lithuanian sentence.

1. The renewed application was granted limited permission to appeal on article 8 grounds concerning both warrants, under sections 21 and 21A of the Extradition Act 2003. The court did not determine whether those grounds would ultimately succeed.

2. The article 3 challenge disclosed no arguable ground. Mironovas and others v Lithuania (40828/12 etc) criticised conditions in particular Lithuanian penal establishments, but did not establish a general risk in all establishments. Lithuania’s designation as a category 1 Convention state meant that substantial evidence was required to show that it would not comply with article 3. The District Judge was entitled to accept the Kaunas assurance in relation to any period on remand.

3. The District Judge was also entitled to take account of the substantial lapse of time since the claimant’s earlier ill-treatment and to conclude that there was no specific evidence showing that the treatment and protection of gay or bisexual men in Lithuanian prisons met the article 3 threshold.

4. For article 8, the District Judge had conducted the balancing exercise required by Celinksi v Poland [2015] EWHC 1274 (Admin). The ordinary matters relied upon by the claimant did not make the decision arguably wrong. However, the short period before the claimant would have served the Lithuanian conviction sentence raised an arguable issue. Chmura v District Court Lublin Poland [2013] EWHC 3896 (Admin) and Jesionowski v Regional Court in Gdansk Poland [2014] EWHC 319 (Admin) showed that extradition on a conviction warrant may be refused where the sentence has already been served in United Kingdom custody.

5. Mazurek v Provincial Court Lublin [2016] EWHC 677 (Admin) demonstrated that, in exceptional circumstances, the same issue may render extradition on an accusation warrant disproportionate after the conviction sentence has been served. Although the present accusations appeared more serious and the claimant had previous dishonesty convictions, the court was just persuaded that an arguable article 8 case existed in relation to both warrants. The ultimate decision was left to the court hearing the appeal after full argument.

• Administrative Court: the renewed application for permission was granted in part. The court accepted arguable article 8 grounds concerning both the conviction and accusation warrants, while rejecting arguable article 3 grounds.
• District Judge Ikram: by written decision dated 19 January 2016, ordered extradition on both European arrest warrants.
• Langstaff J: refused permission on 6 April 2016.