Minister for Justice and Equality v Tagijevas

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 30 June 2015
• Neutral Citation: [2015] IEHC 455
• Court: High Court
• Docket Number: [2014 No. 140 EXT]
• Date: 30 June 2015

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

EDUARDAS TAGIJEVAS

RESPONDENT

[2015] IEHC 455

Donnelly J.

[2014 No. 140 EXT]

THE HIGH COURT

Crime & Sentencing – Extradition – Art. 3 of the European Convention on Human Rights – S. 38 of European Arrest Warrant Act 2003 – Prison conditions

Facts: The Republic of Lithuania sought an order for the surrender of the respondent to serve the remainder of the sentence that was imposed upon him for an offence of theft. The respondent contended that his surrender was not justified under s. 38 of the European Arrest Warrant Act 2003 as he would be subjected to degrading and inhuman conditions in the prison.

Ms. Justice Donnelly granted an order for the surrender of the respondent to the Republic of Lithuania. The Court held that there was no doubt that the prisons of Lithuania were uninhabitable due to overcrowding, lack of medical care and violence among inmates yet the Court must adopt a forward-looking approach in the light of reports available from experts and human rights organisation that the situation had improved and certain checks had been in place. The Court relied heavily on the expert testimony on the conditions of the prison and held that there did not occur reasonable grounds to believe that the respondent would be meted out the harsh and cruel treatment. The Court observed that in order to prove a case under art. 38 of the European Arrest Warrant Act 2003, a mere possibility of ill-treatment would not be sufficient and the respondent had to adduce cogent evidence for the existence of substantial grounds that he was at real risk of being subjected to inhuman conditions.

JUDGMENT of Ms. Justice Donnelly delivered on the 30th day of June, 2015

1 The surrender of the respondent is sought by Republic of Lithuania (‘Lithuania’) pursuant to a European Arrest Warrant (‘EAW’) to serve the remaining 9 months and 29 days of a custodial sentence of 10 months imposed upon him for an offence of theft. The main issue in this case is whether his surrender is prohibited under Article 3 of the European Convention on Human Rights (‘ECHR’) on the ground that there are substantial grounds for believing that there is a real risk of the respondent being subjected to inhuman and degrading prison conditions in Lithuania on surrender.

A Member State that has given effect to the Framework Decision

2 The surrender provisions of the European Arrest Warrant Act, 2003 as amended (‘the Act of 2003’) apply to those Member States of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States (‘the Framework Decision’). By the European Arrest Warrant Act 2003 (Designated Member States) (No. 3) Order 2004 ( S.I. 206 of 2004), the Minister for Foreign Affairs designated Lithuania (more correctly the Republic of Lithuania) as a Member State for the purposes of the Act of 2003.

Section 16(1) of the Act of 2003

3 Under the provisions of s. 16 (1) of the Act of 2003 as amended, the High Court may make an order directing that the person be surrendered to the issuing state provided that:

a) the High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,

b) the EAW has been endorsed in accordance with s. 13 for execution,

c) the EAW states, where appropriate, the matters required by section 45,

d) The High Court is not required, under sections 21A, 22, 23 or 24 of the Act of 2003 as amended, to refuse surrender,

e) The surrender is not prohibited by Part 3 of the Act of 2003.

Endorsement

4 The EAW issued on the 22nd May, 2014 by the issuing judicial authority of Lithuania. It was endorsed for execution in this jurisdiction on the 15th July, 2014. The respondent was arrested on the 7th August, 2014 and his case has been remanded since then.

Identity

5 No issue has been raised in relation to the respondent's identity. I am satisfied on the basis of the information in the EAW, on the affidavit of James A. Kirwan, member of An Garda Síochána and on the affidavit of the respondent that Eduardas Tagijevas who appears before me is the person in respect of whom the EAW issued.

Sections 21A, 22, 23 and 24 of the Act of 2003

6 I am satisfied that I am not required to refuse to surrender the respondent under s. 21(A), 22, 23 or 24 of the Act of 2003.

Part 3 of the Act of 2003

7 Part 3 of the Act comprises sections 37 to 46 inclusive. The respondent only raised issues under s. 37 in his points of objection. In carrying out the role of this Court as executing judicial authority in ensuring that surrender will only be effected when the requirements of the Act of 2003 are fulfilled, I have scrutinised the EAW, additional information, points of objection and verifying affidavits and exhibits. Subject to further consideration of sections 37 and 38, I am quite satisfied on the basis of such scrutiny that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

Section 38 of the Act of 2003

8 This is an EAW issued for the purpose of executing the custodial sentence imposed upon the respondent by a judgment of the 31st January, 2014 of the District Court of Vilnius city. That sentence was in respect of two offences arising from circumstances where he broke a car window, entered the car and took from the car a heater owned by a named individual. He was convicted of an offence of theft and an offence of destruction of damage to property as defined in Lithuanian law. I am quite satisfied that the acts set out in the EAW correspond with the offence of theft within this jurisdiction and with the offence of criminal damage, contrary to the Criminal Damage Act, 1991. It is also clear that the minimum gravity rules have been met in that a term of imprisonment of not less than four months has been imposed upon him. Therefore, I am satisfied that his surrender is not prohibited under section 38 of the Act of 2003.

Section 37 of the Act of 2003

The issue

9 The respondent objects to his surrender on the following ground: ‘[t]he proposed surrender of the Respondent in respect of the said offences to the issuing State is prohibited by section 37 of the Act of 2003 because, due to the prison conditions in Lithuania, there are reasonable grounds for believing that the Respondent will be exposed to inhuman or degrading treatment in breach of s. 37 (1) (c) (iii) (II) of the European Arrest Warrant Act, 2003 (as amended) and Article 3 of the European Convention on Human Rights.’

The basis for the claim

10 In support of his point of objection, the respondent swore an affidavit personally. He said that he was previously imprisoned in Lithuania and served a three year sentence from 2009 to 2012 in Lukiskes prison. He describes overcrowded cell accommodation, 23-hour lock up in the cell, and lack of appropriate space in the exercise area. He complains of inadequate food, laundry and washing facilities. He describes regular violence between inmates. He complains of a particular lack of dental care provided to him and a beating he received from prison staff when he complained about same. He is fearful that if he is returned to prison in Lithuania, he would be subjected to similar prison conditions as he had experienced in the past and that his health and life would be put at risk as a result of poor conditions that exist in Lithuanian prisons.

11 The respondent also relied upon an affidavit of Professor Rodney Morgan who reported on prison conditions in Lithuania and gave his professional opinion following consideration of the facts contained within his report. Professor Morgan's credentials as an expert in this area are set out in the Minister for Justice Equality and Law Reform v. McGuigan [2013] IEHC 216.

12 With specific reference to the respondent's position, Professor Morgan notes that the respondent says that he spent three years in custody at Lukiskes prison in Vilnius. He said it was unclear whether it was on remand or serving a custodial sentence or both. He says that the respondent's account of conditions there, which is the largest prison in Lithuania, is more or less consistent with the published evidence and his first hand experience to the extent that he spent his time there as a remand prisoner (emphasis added). He says that Lukiskes prison is one of three remand prisons for adult males in Lithuania but that a minority of prisoners at the three remand prisons are sentenced prisoners. He says that at Lukiskes prison, there is a lifer's wing and, as at the other two remand prisons, some sentenced prisoners are retained to service the prison. These prisoners work in the kitchen and deliver food to remand prisoners and clean the corridors and yards, etc. He says that because they are sentenced prisoners, they would be working for most of the day and not confined to the cell for 23 hours a day. It follows that the respondent's account is not consistent with serving a sentence at Lukiskes prison as a sentenced prisoner.

13 Professor Morgan, who did not visit any of the committal prisons, reviewed the reports on Lithuania of the Committee for the Prevention of Torture (‘CPT’). The most relevant portions of his evidence will be referred to and discussed later. In conclusion, Professor Morgan says that were the respondent to be extradited to Lithuania:-

‘(a) in the unlikely event of his being allocated to Lukiskes Prison there is a possibility of his being held in conditions which are inhuman or degrading; and

(b) were he located to a prison for adult, male, sentenced prisoners there is a high probability that the institution will exhibit, for want of adequate staff supervision of an environment...