Extradition to Lithuanian jail not a breach of human rights
9 September 2010
The Queen on the application of Arvdas Klimas v. Prosecutors General Office of Lithuania  EWHC 2076 – Read judgment
We welcome this guest post by Michal Jorek
Will a court execute an extradition request if the prison conditions and treatment of prisoners in the requesting State are such that detention there would constitute torture, inhuman or degrading treatment or punishment?
This question was recently considered by the High Court in The Queen on the application of Arvdas Klimas v. Prosecutors General Office of Lithuania. Although the Court was clear in its pronouncement, it is arguable that aspects of its reasoning are at the very least questionable.
In 2001, a court in Lithuania issued a warrant for the arrest of Mr Arvdas Klimas. On 2 February 2010, the City of Westminster Magistrates Court ordered that he be extradited to Lithuania to face charges laid out in the arrest warrant. Mr Klimas appealed to the High Court of Justice on the ground that the extradition request should be refused pursuant to section 21 of the Extradition Act 2003, which provides that a judge considering an extradition request “must decide whether the person’s extradition would be compatible with the convention rights within the meaning of the Human Rights Act 1998” (subsection (1)). If a judge decides that the person’s extradition would not be compatible with the European Convention on Human Rights (“the Convention”), the person must be discharged and the extradition request must be refused (section 21(2) Extradition Act 2003).
It was argued on behalf of Mr Klimas that prisoners had been subject to mistreatment and that prison conditions in Lithuania were so dire that his extradition would place the United Kingdom in breach of its obligations under Article 3 of the European Convention on Human Rights. Article 3 provides that: “No one shall be subjected to torture or inhuman or degrading treatment or punishment.” Mr Klimas relied on a report of the US State Department which said that some prisoners in Lithuania were subject to “physical mistreatment by staff consisting of punches, baton blows and blows with books”, some of which was said to have been inflicted by drunken prison guards. Mr Justice Mitting presiding over this case held that the extradition request was rightly executed by the Magistrates Court and dismissed Mr Klimas’ appeal.
This decision is noteworthy for at least two reasons. First, it brings into fine focus the question of whether a court will execute an extradition request if there is a real risk that the accused will be subject to physical ill-treatment upon his arrival in the requesting State. This question requires a careful consideration of the principle of non-refoulement. Although most often referred to in asylum cases, this principle is much broader than that as it also operates in the context of the right to life as well as freedom from torture and ill-treatment. Pursuant to Article 3, the principle of non-refoulement gives everyone within a jurisdiction of a Contracting State a right not to be ‘refoulé’ or expelled to a country where there is a real risk they would be subject of torture or ill-treatment. Mr Justice Mitting, however, puts the matter in the following terms:
… would the removal of an individual appellant to a Convention country put the United Kingdom in breach of its obligations to him under Article 3? The short answer is that it would not because there exists a mechanism identified by the Strasbourg court in KRS to ensure that his Article 3 rights are not infringed by the requesting state.
The Judge appears to reason that if the requesting state is a party to the Convention then the United Kingdom will not beach its human rights obligations by expelling the accused regardless of what happens upon the accused’s arrival in that state. This line of reasoning is also evident in a passage of Mr Justice Mitting’s earlier decision in Rot v District Court of Lublin, Poland which he cites in Klimas:
… it was not necessary for the district judge to examine the arguments for and against [the extradition] because as a matter of principle it was for the requesting state to put its house in order and if it did not, it was a matter between the individual and the requesting state and ultimately the Strasbourg court and the requesting state if the individual complained that his Article 3 rights were infringed.
This reasoning demonstrates an “out of sight, out of mind” attitude to expulsion which is clearly at odds with the jurisprudence of the European Court of Human Rights. The United Kingdom’s human rights obligations under the Convention include an obligation to consider what treatment the requested person will be subject to upon arrival. This obligation is triggered before the person in question is expelled from this country and is not discharged by the mere fact that the requesting state is itself subject to human rights obligations under the Convention. In the decision of the Strasbourg court in KRS v The United Kingdom, to which Mr Justice Mitting refers and appears to relies upon, the Court succinctly summarised the law as follows:
Expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3.
Mr Justice Mitting, however, held:
That risk can, in the case of a Convention country, be taken to be eliminated or at least reduced below the level at that which it amounts to a real risk by the rights which an individual appellant has in a Convention country and the real and practical obligations which that country owes to him.
In other words, according to Mr Justice Mitting, if the requesting state is a party to the Convention then there is no risk or there is minimal risk of torture and ill-treatment. However, such reasoning would appear to contradict the European Court in KRS where it was also noted that removal to a country “which is also a Contracting State does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of the decision to expel, exposed to treatment contrary to Article 3 of the Convention”. Additionally, one’s memory does not have to be cast too far to think of the numerous instances of parties to the Convention either themselves breaching Article 3 or being complicit in such breaches in recent years.
Perhaps for that reason the European Court of Human Rights, in a passage cited by Mr Justice Mitting, refers only to a “presumption” that an expelled person will not be subject to ill-treatment in a state party to the Convention: “In the absence of any proof to the contrary, it must be presumed that Greece will comply with that obligation in respect of returnees, including the applicant” (emphasis added). Mr Justice Mitting’s reasoning, however, clearly goes beyond a mere presumption. He says that “save in wholly extraordinary circumstances in which the constitutional order of the requesting state has been upset – for example by a military coup or violent revolution” the issue of treatment of prisoners and prison conditions need not be examined “at all”. Mr Justice Mitting appears to presume, somewhat questionably, that modern liberal democracies where constitutional order has not been upset can never be guilty of torture or ill-treatment of their detainees.
Secondly, this case is noteworthy as it highlights what threshold courts should consider in determining whether or not Article 3 rights will be breached upon the expelled person’s arrival in the requesting state. Whilst in this case there was no suggestion that Mr Klimas would be subject to torture in Lithuania, there was evidence that prisoners there had been subject to physical mistreatment and had been detained in overcrowded facilities.
In its seminal judgment in Selmouni v France, the Grand Chamber of the European Court of Human Rights held that any recourse to physical force against a person in custody which has not been made strictly necessary by that person’s own conduct diminishes human dignity and is in principle an infringement of Article 3. Mr Justice Mitting was also referred to the case of Orchowski v Poland where the Strasbourg court held that a prisoner’s Article 3 rights had been infringed because he had been detained in a cell measuring 2.2 meters square in which he lacked privacy. He said that it is “not in the least surprising that the court found in [Orchowski] that [the prisoner’s] rights under Article 3 had been infringed by the Polish state.”
What is surprising, however, is Mr Justice Mitting’s handling of the evidence given the above jurisprudence of the Strasbourg court. Not only was there evidence of unwarranted physical abuse by Lithuanian prison guards, but it was also shown that even the “recently renovated cells” measuring 8 square meters were to be shared by six prisoners. If 2.2 square meters were insufficient for an individual prisoner in Orchowski, one cannot but wonder why 8 square meters would suffice for 6 prisoners in Lithuania. Both the physical treatment of prisoners and the conditions in which they are detained in Lithuania appear to raise significant concerns over that country’s compliance with Article 3. The question ought to have been whether in this particular case there was a real risk that such treatment would ensue following Mr Klimas’ arrival in Lithuania. However, this question appears to be almost entirely sidelined in this case by the curious application of both the principle of non-refoulement and the Article 3 threshold by the High Court of Justice.
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