AURIMAS BAIKA v SIAULIAI REGIONAL COURT (LITHUANIA)

Where qualifying remand has extinguished the remaining custodial sentence underlying an extradition request, that may cross the relevant threshold for an Article 8 ECHR challenge or an abuse of process argument. Where the requested person appears to have acquired an entitlement to discharge, the court may require the requesting state to show cause within a very short period before making a substantive discharge order. The court should balance the urgency arising from the individual’s liberty against the procedural fairness of giving the respondent an opportunity to identify any material contrary circumstance.

The appellant was wanted for extradition to Lithuania under a conviction European arrest warrant relating to a three-year custodial sentence. He had been arrested and remanded in custody in May 2019. By January 2022, the period of qualifying remand appeared to have exceeded the time remaining to serve.

The renewed application followed refusal of permission on the papers. The appellant pursued an Article 8 ECHR ground and sought permission to add abuse of process. He also invited the court to order immediate discharge, although the only formal application before the court was the renewed application for permission to appeal.

1. Permission. Permission to appeal was granted on the Article 8 ECHR ground. Permission was also granted to amend the grounds to include abuse of process.
2. Qualifying remand. The court relied on the approach in Molik v Poland [2020] EWHC 2836 (Admin), under which the relevant line is crossed for Article 8, or alternatively abuse of process, when qualifying remand extinguishes the time remaining to serve. On the material before the court, that point appeared to have been reached.
3. Immediate discharge. The court recognised that the case concerned individual liberty and that there appeared to be a legal entitlement to discharge. The factual and arithmetic basis had been communicated to the respondent, and there was no reason to doubt the recorded facts or to suppose that a supervening event altered the position.
4. Nevertheless, the court declined to order immediate discharge because no substantive discharge application was formally before it and because the court could not know whether the respondent had a material answer. It directed a short, urgent show-cause process, requiring any response by 2pm on 21 February 2022 and listing the matter for hearing on 22 February 2022.
5. The anticipated consequence, absent a material response, was unconditional discharge. There was no order as to costs, subject to detailed assessment of the appellant’s publicly funded costs.

• District Judge: extradition ordered by DJ Godfrey on 18 March 2021 after an oral hearing on 4 March 2021.
• High Court: permission to appeal was refused on the papers by Dove J on 7 October 2021.
• High Court (Administrative Court): on renewal, Fordham J granted permission to appeal and permission to amend the grounds, but directed an urgent show-cause hearing before deciding immediate discharge.