OLEGAS BAZYS & Anor. v THE VILNIUS COUNTY COURT, REPUBLIC OF LITHUANIA & Anor.

In extradition proceedings, extradition must be refused where substantial grounds establish a real risk of treatment contrary to article 3 of the European Convention on Human Rights. A Council of Europe state ordinarily benefits from a presumption of compliance, which can be displaced only by clear, cogent and compelling evidence. Specific assurances may then exclude the real risk, including assurances given by a non-judicial authority if assessed in the round.

Past breaches are relevant but do not automatically invalidate future assurances. A requesting state may depart from an assurance in an immaterial respect without requiring all assurances to be disregarded. Evidence of prison conditions and inter-prisoner violence must establish both the relevant risk and, for non-state violence, a failure by the state to provide reasonable protection.

Two applicants sought leave to appeal against extradition orders made by district judges. Mr Bazys was to be returned to Lithuania pursuant to a conviction European Arrest Warrant and would serve the balance of a prison sentence. Mr Besan was sought pursuant to an accusation European Arrest Warrant.

The applicants relied on fresh evidence concerning Lithuanian prison conditions, inter-prisoner violence, alleged breaches of assurances and the reliability of Lithuania’s assurances. The central issues were whether the fresh evidence should be admitted, whether existing authority concerning Lithuanian prisons should be reconsidered, and whether the applicants faced a real risk of treatment contrary to article 3 of the European Convention on Human Rights.

1. Fresh evidence. The court considered the proposed fresh evidence under the principles in Hungarian Judicial Authorities v Fenyvesi. The evidence was admitted de bene esse for consideration, but it was not sufficiently reliable or decisive to justify allowing either appeal or departing from the existing case law (paras [59]-[73], [79]).
2. Article 3 and assurances. Lithuania had lost the general presumption of compliance in relation to ordinary detention at Šiauliai Remand Prison, but the assurance of 3 April 2020 was sufficient to exclude a real risk of article 3 ill-treatment for Mr Besan. The assurance was given by an official well placed to know whether it could be fulfilled, and the evidence did not justify disregarding it. A minor or immaterial departure from an assurance did not require the court to reject assurances in every future case (paras [74]-[76]).
3. The court rejected the submission that the approach to assurances derived from Othman v UK was inappropriate for undertakings given by senior officials of an EU member state. Zabolotnyi confirmed that approach in the extradition context. There was no requirement for further information concerning the practical operation of the assurances (paras [75]-[76]).
4. Correction houses. Lithuania retained the presumption of compliance in relation to convicted prisoners serving sentences in correction houses. The fresh evidence showed continuing concerns and a high incidence of inter-prisoner violence, but did not amount to clear, cogent and compelling evidence of systemic failure sufficient to displace the presumption or require reconsideration of Bartulis v Lithuania (paras [71]-[79]).
5. For harm by non-state agents, a real risk of harm alone was insufficient. The applicants also had to show that the state had failed to provide reasonable protection. No such failure, or need for a single cell for Mr Bazys, was established (paras [39], [78]). Neither appeal could succeed. Leave to appeal was refused (para [80]).

• District Judge Blake: ordered Mr Bazys’s extradition on 4 September 2020.
• District Judge Bristow: ordered Mr Besan’s extradition on 3 March 2021.
• High Court (Administrative Court): refused leave to appeal in both cases. The proposed fresh evidence was not decisive, and neither applicant established a real risk of article 3 ill-treatment.