Bartulis & Ors v Panevezys Regional Court, Lithuania & Anor

In an extradition appeal, permission should be granted where the proposed ground is reasonably arguable on evidence that prison conditions may create a real risk of treatment contrary to Article 3 of the European Convention on Human Rights. A prior decision upholding a comparable assurance may make a renewed challenge to that assurance unarguable. Fresh evidence may be admitted for the limited purpose of identifying relevant source material, while unsupported expert opinions are excluded. A defendant should ordinarily advance the whole case before the district judge; raising a new statutory bar on appeal may create an abuse of process, but the appellate court may permit amendment and leave admissibility and merits to the court hearing the appeal.

These were renewed applications for permission to appeal against extradition orders made by District Judge Jabbitt on 17 September 2018. The appellants were wanted by Lithuania for trial or to serve sentences. They challenged assurances concerning remand-prison conditions, relied on evidence about post-conviction Correction Houses, sought to introduce fresh material, and sought to raise for the first time a bar under section 25 of the Extradition Act 2003.

Supperstone J had refused permission on paper. The central questions were whether the proposed grounds were arguable, whether fresh evidence should be admitted, and whether the new section 25 ground should be permitted.

1. Permission and joinder. Permission was granted on the ground that Correction Houses in Lithuania might not comply with Article 3 of the European Convention on Human Rights. The appeals were joined with Kalinauskas v Lithuanian Issuing Judicial Authority and directed to be heard together.
2. Remand prisons. Permission was refused on the challenge to the August assurance concerning Lukiskes and Siauliai prisons. In light of Jane v Prosecutor’s General Office, Lithuania (No 2), which had upheld a similar assurance, the challenge was not arguable. The related 5 November 2018 report was therefore excluded.
3. Fresh evidence. The 17 October 2018 report of Dr Sakalauskas could be used to identify relevant material bearing on Correction House conditions. He was not accepted as an expert on Lithuanian prison conditions, and his opinions were to be blue-pencilled. The approach accorded with Brazuks v Prosecutor General’s Office, Republic of Latvia.
4. New section 25 ground. The appellants’ duty was to advance their whole case before the district judge. Holding back a potential bar for an appeal could amount to an abuse of process. Nevertheless, leave was granted to amend Mr Bartulis’s grounds to include section 25. The court hearing the appeal was left to decide whether to receive Dr Forrester’s report and whether permission should ultimately be granted.
5. The issue whether the Lithuanian Prosecutor General’s Office was a judicial authority for section 2(2) of the Extradition Act 2003 and the EAW Framework Decision was stayed pending Krupeckiene v Lithuanian Public Prosecutor.

• District Judge: extradition orders made against the appellants on 17 September 2018.
• High Court (Administrative Court): Supperstone J refused permission on paper on 21 December 2018. Mr Justice Julian Knowles granted permission on the Correction House issue, refused permission on the remand-prison issue, granted leave to amend the section 25 ground, and stayed the judicial-authority issue.