Gerulskis & Anor v The Prosecutor General's Office of the Republic of Lithuania

Extradition to a member state must be refused where clear, cogent and compelling evidence establishes a real risk of treatment contrary to Article 3 of the ECHR. Mutual trust supports a presumption of compliance, but assurances must be assessed against the evidence and honoured once given. A technical breach of an assurance does not necessarily establish a real risk where its material protection has been provided. Under section 21A of the Extradition Act 2003, article 8 proportionality involves balancing the weighty public interest in extradition against private and family life, with children’s best interests a primary consideration. There is no exceptionality test. Proportionality is assessed by the statutory factors, including the seriousness of the alleged conduct, likely penalty and availability of less coercive measures.

Two appellants challenged orders made by Westminster Magistrates’ Court for their extradition to Lithuania under accusation European arrest warrants. The appeals concerned alleged risks arising from Lithuanian prison conditions and assurances, compatibility with article 8 rights, and statutory proportionality. Fresh evidence concerning prison conditions, alleged breaches of assurances and the COVID-19 pandemic was also relied upon.

The court considered whether permission should be granted on the prison-assurance issue, whether extradition created a real risk of treatment contrary to article 3 of the ECHR, whether the article 8 assessments below were wrong, and whether extradition was disproportionate under section 21A of the Extradition Act 2003.

1. Permission and article 3. Permission to appeal was granted on the assurance issue, but both appeals were dismissed. Mutual trust between member states supports a presumption that extradition will not result in article 3 ill-treatment. That presumption may be rebutted by clear, cogent and compelling evidence, including an international consensus or a relevant pilot judgment. The evidence did not establish a real risk in Lithuania.
2. Assurances. The 7 August 2018 assurance was technically breached in Mr Jane’s case because he was held in a prison not identified in the assurance. Its material protection, namely at least 3 square metres of living space, had nevertheless been provided and there had been no article 3 breach. The breach did not justify disregarding Lithuanian assurances generally. No breach was established in Mr Kmitas’ case. The COVID-19 correspondence caused concern because it appeared to withdraw earlier guarantees, but the replacement assurance repeated the material safeguards and the caveat did not establish a real risk.
3. Article 8. Section 21A required a proportionality and compatibility assessment. The public interest in extradition was constant and weighty. Children’s best interests were a primary consideration, but not the paramount consideration, and there was no test of exceptionality. Delay could reduce the weight of the public interest and increase the impact on family life, but neither appellant showed that the magistrates’ balancing exercises were wrong.
4. Statutory proportionality. The statutory factors were the seriousness of the alleged conduct, the likely penalty and the possibility of less coercive measures. The Practice Direction table was a floor rather than a ceiling. Mr Gerulskis’ alleged theft was not minor, and no less coercive measure had been proposed. Mr Zapalskis’ alleged group offending, including theft involving a breach of trust, made extradition proportionate notwithstanding that the individual offences might not ordinarily attract custody in the United Kingdom.
5. The fresh evidence was considered but not formally admitted because, after full analysis, it would not have led to a different order. Both appeals were dismissed.

• Westminster Magistrates’ Court: District Judge Blake ordered Mr Gerulskis’ extradition on 12 January 2018. District Judge Snow ordered Mr Zapalskis’ extradition on 8 January 2020.
• High Court (Administrative Court): Permission was granted on the assurance issue. The court found no article 3 real risk, upheld the article 8 and proportionality assessments, refused to admit the fresh evidence, and dismissed both appeals.