Attorney General v Lytvynenko

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 04 February 2025
• Neutral Citation: [2025] IEHC 100
• Court: High Court
• Docket Number: [2023 No. 95 EXT]

In the Matter of the Extradition Acts 1965 to 2020

And in the Matter of an Application Under S. 29 of the Extradition Act 1965, As Amended.

Between

The Attorney General

Applicant

and

Oleksi Oleksiyovych Lytvynenko

Respondent

[2025] IEHC 100

[2023 No. 95 EXT]

AN ARD-CHÚIRT

THE HIGH COURT

Extradition – Breach of fundamental rights – Abuse of process – Applicant seeking an order committing the respondent to a prison to await the order for his extradition – Whether the respondent’s extradition would be in breach of his fundamental rights

Facts: The applicant, the Attorney General, applied to the High Court under s. 29(1) of the Extradition Act 1965 for an order committing the respoAdent, Mr Lytvynenko, to prison to await the order of the Minister for Justice (the Minister) for his extradition to the United States of America (the USA), pursuant to a written request for extradition communicated by the Embassy of the USA in Dublin and received by the Minister. The respondent was wanted to stand trial in the USA on conspiracy charges arising from the alleged deployment of malicious software against a government entity and two businesses in the Middle District of Tennessee that was alleged to have resulted in the payment by two of the victims of a combined ransom of approximately $634,000 in the form of cryptocurrency. The cognisable objections to extradition raised by the respondent in his points of objection and supplemental issues paper fell into two broad categories: first, that his extradition would be in breach of his fundamental rights under both the Constitution of Ireland (the Constitution) and the European Convention on Human Rights (the ECHR); and second, that the application for his extradition must, in any event, be refused as an abuse of process.

Held by Keane J that the evidence relied upon by the respondent did not reach the high threshold necessary to demonstrate that it was close to the margin where surrender might be said to be incompatible with the State’s obligations to respect personal and family life. The respondent had failed to persuade Keane J that his extradition would expose him to a real risk of being subjected to torture or inhuman or degrading treatment or punishment, contrary to Article 3 of the ECHR, and in breach of his right to bodily integrity and human dignity under the Constitution, through the risk of his refoulement to Ukraine by the USA at the conclusion of the criminal process. Keane J held that precisely the same flagrant denial of justice argument as the one that the respondent raised was considered and rejected by, first, the High Court and then, the Court of Appeal in Attorney General v Marques [2016] IECA 374. Keane J held that the respondent’s bare averments fell well short of establishing any alleged improper or mala fide conduct on the part of the requesting country, or of the State, capable of amounting to an abuse of process. Keane J concluded that the respondent had failed by a very wide margin to establish that his extradition was prohibited under s. 11 of the 1965 Act, either because the offences in the request were political offences or because there were substantial (or, indeed, any) grounds for believing that a request for extradition for an ordinary criminal offence had been made for the purpose of prosecuting him on account of his race, religion, nationality or political opinion or that his position may be prejudiced for any of those reasons.

Keane J, having had due regard to the obligation to extradite under s. 9 of the 1965 Act, made an order under s. 29(1) of the 1965 Act committing the respondent to a prison to await the order of the Minister for his extradition.

Application granted.

JUDGMENT of Mr Justice David Keane delivered on the 4 ^th February 2025

Introduction

1 The Attorney General (‘the AG’) applies under s. 29(1) of the Extradition Act 1965, as amended (‘ the Act of 1965’), for an order committing Oleksi Oleksiyovych Lytvynenko (‘the respondent’) to prison to await the order of the Minister for Justice (‘ the Minister’) for his extradition to the United States of America (‘ the USA’), pursuant to a written request for extradition, dated 8 June 2023 (‘ the extradition request’), communicated by the Embassy of the USA in Dublin, as the diplomatic agent of the USA (‘ the requesting country’), and received by the Minister on 9 June 2023.

2 The respondent is wanted to stand trial in the USA on conspiracy charges arising from the alleged deployment of malicious software, or ‘ransomware’, against a government entity and two businesses in the Middle District of Tennessee that is alleged to have resulted in the payment by two of the victims of a combined ransom of approximately $634,000 in the form of cryptocurrency. The acts that are the subject of each of those conspiracy offences are alleged to have begun no later than 2020 and to have continued until at least June 2022.

3 The respondent is a Ukrainian national who was given temporary protection in Ireland under s. 60 of the International Protection Act 2015 upon his arrival here in September 2022 against the background of the Russian invasion of Ukraine. The respondent resides at an address in Cork with his wife and ten-year old son, both of whom arrived in the State in July 2022 and were given temporary protection under the same statutory provision. It is the applicant's position that he is qualified as a lawyer in Ukraine, and that he has been registered as such with the Kherson Regional Bar Council there since 2016.

Procedural history

4 The extradition request was accompanied by a supporting affidavit of Taylor J. Phillips, an assistant United States Attorney in the Middle District of Tennessee, sworn on 1 June 2023 (‘ the first Phillips Affidavit’), which in turn exhibits four documents: first, a certified copy of the indictment against the respondent, dated 22 May 2023; second; a certified copy of the arrest warrant for the respondent, also dated 22 May 2023; third, extracts of the relevant portions of the applicable United States statutes; and fourth an affidavit of Special Agent Derek Rousseau of the Federal Bureau of Investigation (‘ the FBI’), sworn on 1 June 2023 (‘ the Rousseau affidavit’), to which two separate photographs of the respondent are exhibited. The first Phillips affidavit and its attachments were certified on 1 June 2023 by Jason E. Carter, an Associate Director of the Office of International Affairs in the Criminal Division of the United States Department of Justice. Mr Carter's status as such at the material time, duly commissioned and qualified, is the subject of a signed, sealed certificate of Merrick Garland, the United States Attorney General, dated 2 June 2023.

5 On 17 June 2023, the Minister gave a certificate, pursuant to s. 26(1)(a) of the Act of 1965, that the extradition request had been made in accordance with Part II of that Act. Upon production of that certificate to the High Court, a warrant for the arrest of the respondent issued on 20 June 2023, pursuant to s. 26(1)(b) of the Act.

6 The respondent was arrested at his home in Cork on 6 July 2023 and, having been processed at the Bridewell Garda Station in Cork, was produced before the High Court in Dublin on the same date, in accordance with the obligation to do so under s. 26(5) of the Act. The court adjourned the extradition application and remanded the respondent in custody, as it was empowered to do under s. 28(1) of the Act.

7 The respondent made an application for bail by motion issued on 21 July 2023, grounded on an affidavit of his then solicitor Niall O'Connor, sworn on the same date (‘ the O'Connor affidavit’). That application was heard and refused by the High Court (Greally J) on 23 July 2023.

8 Points of objection to extradition were filed on behalf of the respondent on 13 September 2023.

9 The respondent made a second application for bail by motion issued on 24 November 2023, grounded on an affidavit sworn by Marharyta Lytvynenko, the respondent's wife, on 23 November 2023 (‘ the wife's first affidavit’); one sworn by the respondent on 24 November 2024 (‘ the first Lytvynenko affidavit’); and one sworn on 29 November 2023 by the respondent's then solicitor Matthew Kenny (‘ the first Kenny affidavit’). Mr Kenny's firm had replaced Mr O'Connor's one as the respondent's legal representatives at some time after the respondent's points of objection were filed. That bail application was heard by the High Court (Burns J) on 29 November 2023 and was refused in a ruling given the following day.

10 The respondent swore an affidavit on 28 February 2024 to ground his opposition to extradition (‘ the second Lytvynenko affidavit’). In addition, the respondent relies upon an affidavit of Davina Chen, a United States lawyer, sworn or affirmed on 4 March 2024 (‘ the Chen affidavit’), which exhibits a report by that lawyer of the same date addressing the sentencing procedures that will apply if the respondent is extradited to the USA and convicted of the offences at issue in the United States District Court in Tennessee and, specifically, addressing that part of those procedures that permits federal courts in the USA to impose a sentence based on offences not charged in an indictment or proved at trial (‘ the Chen report’).

11 The respondent also relies upon the contents of a further affidavit sworn by his wife on 8 March 2024 (‘ the wife's second affidavit’); a further affidavit of Matthew Kenny, sworn on 13 March 2024 (‘ the second Kenny affidavit’), exhibiting what is described as a declaration of Mark H Allenbaugh, a former attorney and research consultant, dated 8 March 2024 (‘ the Allenbaugh declaration’), expressing Mr Allenbaugh's opinion on the duration of the sentence likely to be imposed on the respondent in the event of his conviction and on the respondent's life expectancy in prison in those circumstances; and a further...