KARLIS ELMERIS v THE GENERAL PROSECUTOR’S OFFICE, REPUBLIC OF LATVIA

On an extradition appeal, the court must decide whether the extradition judge made an error requiring discharge. Where the alleged risk of treatment contrary to articles 2 or 3 of the European Convention on Human Rights comes from fellow prisoners, the relevant question is whether there is a real risk and whether the requested state can take reasonable protective measures. Presumptions that Council of Europe and EU member states will comply with the Convention can be rebutted only by powerful, clear and compelling evidence. Evidence of a historic threat may become speculative with the passage of time. Article 8 requires a structured balancing exercise, weighing the factors for and against extradition. A careful and reasoned balancing decision will not be disturbed merely because the appellate court might have assessed the factors differently.

The appellant was sought by Latvia under a conviction European arrest warrant to serve a sentence of three years and one month for drugs offences. Westminster Magistrates’ Court ordered his extradition on 17 December 2020. He appealed under section 26 of the Extradition Act 2003 on the grounds that his status as a police informant created risks to his life and health under articles 2 and 3 of the European Convention on Human Rights, and that extradition would disproportionately interfere with his article 8 rights.

The central issues were whether the district judge had wrongly assessed the alleged risk from fellow prisoners, the availability of protective measures in Latvia, and the balance between the appellant’s private and family life and the public interest in extradition.

1. Appeal dismissed. Under section 27(2) of the Extradition Act 2003, the court could allow the appeal only if the district judge had decided a question wrongly and, had it been decided correctly, discharge would have been required.
2. The alleged article 2 and article 3 risk arose from non-state actors. Applying R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38, if such a risk were established, the state’s duty would be to take reasonable measures to make appropriate protection available.
3. The principles in Krolik & Ors v Several Judicial Authorities of Poland [2012] EWHC 2357 (Admin) applied. Council of Europe states, particularly EU member states, are presumed able and willing to comply with the Convention. Powerful, clear, cogent and compelling evidence is required to rebut that presumption.
4. The district judge was entitled to find that any risk associated with the appellant’s evidence in 2016 had not been shown to continue in a real and non-speculative form years later. Latvian law provided for segregation and other protective measures. Concerns about staffing shortages did not establish that those measures could not minimise the risk, particularly by avoiding detention with persons against whom the appellant had testified.
5. For article 8, the structured approach in Polish and Slovakian Judicial Authorities v Celinski and Others [2015] EWHC 1274 (Admin) required findings of fact, a balancing sheet of factors for and against extradition, and a reasoned decision applying the appropriate standard. The district judge had followed that approach and considered the jurisprudence, including Norris v Government of the USA (No 2) [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] 25. His conclusion that the balance favoured extradition disclosed no error.
6. A subsequent inflammatory bowel condition and the passage of time did not justify reaching a different conclusion. Both grounds failed.

• Westminster Magistrates’ Court: District Judge Fanning ordered the appellant’s return to Latvia in a judgment dated 17 December 2020.
• High Court (Administrative Court): Leave to appeal was granted by Holman J on 8 July 2021. Mrs Justice McGowan dismissed the appeal under section 26 of the Extradition Act 2003.