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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bartulis v Panevezys Regional Court (Lithuania) [2019] EWHC 3504 (Admin) (20 December 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/3504.html Cite as: [2019] EWHC 3504 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE SUPPERSTONE
____________________
(1) ARMINAS BARTULIS |
Appellant |
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- and - |
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PANEVEZYS REGIONAL COURT (LITHUANIA) |
Respondent |
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(2) KASTYTIS KMITAS |
Appellant |
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- and – |
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PROSECUTOR GENERAL'S OFFICE (LITHUANIA) |
Respondent |
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(3) ANDRUIS OSTAPEC |
Appellant |
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- and – |
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PROSECUTOR GENERAL'S OFFICE (LITHUANIA) |
Respondent |
____________________
Jonathan Hall QC and Saoirse Townshend (instructed by Oracles Solicitors) for the Second Appellant
Jonathan Hall QC, Florence Iveson, Saoirse Townshend and Malcolm Hawkes (instructed by Oracles Solicitors) for the Third Appellant
Helen Malcolm QC and Hannah Hinton (instructed by The Crown Prosecution Service) for the Respondents
Hearing date: 16 October 2019
____________________
Crown Copyright ©
Lord Justice Irwin:
Introduction
Name Issuing Authority EQW Bundle Reference CO Number BARTULIS, Arminas
Lithuanian b.7/7/1994Panevezys County Court Conviction EAW CO/3734/2018 (as above) Prosecutor General's Office Accusation EAW (as above) KMITAS, Kastytis
Lithuanian b.15/5/1968Prosecutor General's Office Accusation EAW CO/3739/2018 OSTAPEC, Andruis
Lithuanian b.15/12/1992Prosecutor General's Office Accusation EAW CO/3737/2018 (as above) Vilnius County Court Conviction EAW (as above)
"The Court giving consideration to the risks of Article 3 breach said to arise from the material presently before the court, but having as yet made no findings as to those risks, requests further evidence, assurances and/or guarantees, directed to ensuring that none of these Appellants, if extradited, will serve a sentence of imprisonment post-conviction:
i. In a dormitory block, or
ii. In cell accommodation sharing access to common parts of the prison with other inmates living in dormitory blocks, or
iii. In cell accommodation sharing access to common parts of the prison with inmates who have been re-settled in cell accommodation because they are adjudged to be "inmates, making a negative influence to the other inmates (leaders of informal prison hierarchy and its handymen)", or
iv. In disciplinary punishment cells subject to the "KTP" regime, or
v. In accommodation with a minimum space allocation of no less than 3 square metres per person;"
The Judgment Below
"Bartulis is wanted to serve 7 months 28 days outstanding of an 8 month sentence imposed on 30 March 2017. The EAW issued 8/1/18 was certified 11/1/18. The offences he committed on 02-02-2017 and 05-02-2017 were of domestic violence.
Kmitas is wanted to stand trial for 21 offences of either fraud or forgery. The framework List is marked, "swindling" and "forgery". The offences were committed between 2005-2010. Total benefit: Ł818,000. EAW issued 24/5/16 was certified 9/6/16.
Ostapec is wanted upon two EAWs.
The first, an accusation warrant issued on 27 January 2017 by the Prosecutor General's Office is based on a ruling of the Vilnius District Court dated 2 September 2016, described as "ruling to change coercive measure – written pledge not to leave and seizure of documents" (box b). EAW 1 is an accusation warrant in respect of 2 offences, arising out of conduct said to have occurred on 4 April 2015. The RP is alleged to have been involved in a serious joint enterprise assault on a named complainant (box e). The offences have been categorised pursuant to Lithuanian law as "violation of public order" and "non-severe Health impairment" (box e), with maximum sentences of 2 years and 5 years respectively (box c). The framework list has not been ticked.
The second warrant is a conviction warrant. He has an 8-month sentence to serve. EAW 2 was issued on 30 January 2017 by a judge of the Vilnius Regional Court. The EAW is a conviction warrant and is based on a judgment of the District Court of Vilnius City dated 24 April 2015 imposing a suspended sentence and a ruling of the same court, dated 11 May 2016, activating the sentence. The RP has been convicted of one offence of stealing a number of electronic items on 14 August 2014 from a named person's apartment, to a total value of €630,61… FWL ticked for "illegal restraint", "organised or armed robbery" and "extortion"."
"30. With regard to Alytus and Marijampole prisons, a new strategy and training was called for to address prisoner violence, but he was not aware of any action being taken.
31. The CPT report [a reference to the 2016 CPT Report] called for large capacity dormitories to cease being used, they are in place in most, if not all, correction houses, and he is not aware of any changes.
32. The CPT made an unannounced visit to Lithuanian prisons in April 2018, but the witness, unlike previous occasions was not contacted in advance.
33. The CPT report (page 26, para 44) stated that prisoners in Marijampole and Alytus would choose solitary confinement to avoid violence. The witness confirmed the problem of prisoner violence. He had visited Lukiskes and met a prisoner, who wanted to be transferred to another prison because of the violence between prisoners in Lukiskes, this was several years ago.
34. With regard to the caste system in the prison estate, he was not aware of any steps taken by the prison authorities to address this issue."
"supposed to monitor prison conditions … but the office is severely understaffed. The most recent report was in September 2016 … the ombudsman has not published any reports in the last year but a report is expected shortly".
"He does not have confidence that the prisons concerned are compliant. The court decisions show prisoners are frequently moved and conditions can differ from prison to prison."
"There was no point in complaining. He could have tried to be put in isolation, but he was afraid of the impact on his mental health."
"118. The Caste system and violence between prisoners continues. He has seen prisoner abused by fellow prisoners and guards. He has himself been mentally abused. There was an incident where prison guards attacked prisoners with batons but the case did not reach the court in Lithuania.
119. He said prison conditions had got worse not better."
"131. … was the culmination of a long-standing international consensus in regard to systemic issues within the Lithuanian prison estate from multiple EAW states, including Germany, Malta and Ireland.
132. There was evidence in this case, together with the established position for remand prisoners, that rebuts the presumption of compliance for convicted persons. Therefore, the first stage of Aranyosi is triggered and the court is obliged to seek specific information, which was confirmed in the recent CJEU decision of ML."
"138. In Jane, the Court also had evidence from the Lithuanian Seimas Ombudsman that "Lithuania not only violates human rights but also pays out immense sums adjudged to convicts because of extreme imprisonment conditions" and that "the ECHR is considering launching a case against Lithuania owing to systemic human rights violations in prisons" (Bartulis, Tab 26, 12 January 2017). On 31 January 2018, the Ombudsman stated that "Lithuania is losing ground for poor prison conditions before national courts and the ECHR" (Bartulis, Tab 31)."
"1. The CPT's 2018 report concerned visits to two of the four main Correction Houses for male convicted prisoners, Alytus and Marijampole. Cramped "large-capacity dormitories" at Alytus and Marijampole promoted "offender subcultures", entailing "a high risk of inter-prisoner intimidation and violence", so should be replaced (tab 32, para 37, 44).
2. The CPT had made recommendations to Lithuania to move away from this type of accommodation, but the 2018 report shows that it has failed to do so. Furthermore, the minimum standards of living space were not being respected in the dormitories at Marijampole."
"151 …"The Director General of the Prisons Department under the Ministry of Justice of the Republic of Lithuania hereby assures and guarantees that the below stated conditions will be applied to all persons surrendered to the Republic of Lithuania from the United Kingdom on the grounds of the European Arrest Warrant ("EAW") for the purpose of a criminal prosecution or execution of a sentence of imprisonment during their detention:
1. All persons surrendered under an accusation warrant from the United Kingdom will be held in Kaunas Remand Prison, Lukiskes Remand Prison-Closed prison or Siauliai Remand Prison, whereby they will be guaranteed a minimum space allocation of no less than 3 square metres per person in compliance with Article 3 of the European Convention on Human Rights.
2. Persons surrendered under a conviction warrant that may spend a maximum of 10 days at one of the remand centers set out in clause 1, will be subject to the same guarantees and will be housed in cells with a minimum space allocation of no less than 3 square metres per person in compliance with Article 3 of the European Convention on Human Rights.
3. All persons held in Lukiskes Remand Prison-Closed prison or Siauliai Remand Prison as per clause 1 and 2 above, will only be held in the refurbished or renovated parts of the prisons and in compliance with Article 3 of the European Convention on Human Rights"."
"did not express any concerns about conditions at Kaunas Remand Centre or record any concerns about any other facilities holding convicted persons, sufficient to hold that the general presumption of Article 3 compliance had been rebutted".
This, it was said, was in accordance with the historical position as resolved by Jay J in Aleksynas v Lithuania [2014] EWHC 437 (Admin): see paragraph 103.
"208. I am unable to conclude that this evidence, together with the evidence presented to the Divisional Court, amounts to clear, cogent and compelling evidence or powerful evidence, plainly not amounting to something like an international consensus of the type envisaged by the Divisional Court in Brazuks and others v Prosecutor General's Office, Latvia [2014] EWHC 1021 (Admin), to rebut the presumption that Lithuania possesses as a Member of the Council of Europe.
209. Thus, I do not find that the requested persons have adduced sufficient evidence to rebut the presumption of compliance retained by Lithuania, in respect of conviction prisons.
210. That is not to say that I did not find the evidence base put forward by the defence to be strong and persuasive and the detailed and careful submissions equally persuasive, but I consider this court to be bound by the decision in Jane, in relation to conviction prisons, and the evidence of the prisoners at Alytus and Pravienniskes, current and former, was insufficient in terms of the Brazuks criteria to rebut the presumption of compliance in favour of the JA."
CPT 2019
"The aim of the 2018 ad hoc visit was for the CPT to assess the implementation of its long-standing recommendations concerning the Lithuanian prison system. In this respect, the CPT regrets to note that many of those recommendations have still not been implemented. This concerns, in particular, the situation at Alytus, Marijampole and Pravieniškes Prisons. … The CPT must stress that if no progress is made to implement its recommendations, it will be obliged to consider having recourse to Article 10, paragraph 2, of the Convention.
The delegation received no recent and credible allegations of physical ill-treatment of inmates by staff at Lukiškes and Vilnius Prisons, or at the Prison Hospital. By contrast, a number of credible allegations of physical ill-treatment, some of them corroborated by medical evidence, were heard at Alytus, Marijampole and Pravieniškes Prisons; the ill-treatment alleged consisted essentially of use of excessive force (punches, kicks and truncheon blows) in the context of staff interventions to stop inter-prisoner violence.
The delegation also received numerous allegations of mass physical ill-treatment of prisoners in the course of a general search carried out in the punishment block (KTP) of Alytus Prison by members of the special intervention group from the Prison Department on 5 July 2017.
…
Furthermore, as had been the case during previous visits, in Alytus, Marijampole and Pravieniškes Prisons the delegation observed truly extraordinary levels of inter-prisoner violence, intimidation and exploitations. It gave the delegation a strong impression that the main detention areas in these three prisons were unsafe for inmates, and that the only parts of the establishments under full control of the administration were the punishment blocks which were frequently used and constantly filled to capacity, mostly by inmates seeking protection from other prisoners and being punished for refusing to stay in their ordinary units."
"the remaining overcrowded large-capacity dormitories still facilitate inter-prisoner violence. The CPT recommends that the Lithuanian authorities continue the conversion of large-capacity dormitories into cell type accommodation…"
"reiterates its view that inadequate staff complements can only increase the risk of violence and intimidation between prisoners; this has been demonstrated very clearly again during the 2018 ad hoc visit."
"22. As had been the case during previous visits to Lithuania, the delegation observed – especially in the three penitentiary establishments with predominantly dormitory-type accommodation i.e. Alytus, Marijampole and Pravieniškes Prisons – truly extraordinary levels of inter-prisoner violence, intimidation and exploitation.
The delegation was again inundated with allegations of prisoners having been subjected to violence (including violence of a sexual character and forcing fellow prisoners to perform slave labour) from the members of informal prisoner hierarchies, whose power was reportedly linked with the omnipresence of illicit drugs and alcohol (as well as mobile telephones and dangerous objects including bladed weapons) and facilitated by a very low prison staff presence (as well as, at least to a certain degree, staff collusion and corruption).
It should be added that the examination of relevant medical registers, prisoners' medical files and other documentation in the three prisons (Alytus, Marijampole and Pravieniškes) revealed – despite the generally poor and even worsening quality of medical records – the presence of numerous injuries, sustained by prisoners inside the accommodation and work/activity areas, the character of which clearly suggested their violent origin."
"There were only 12 custodial staff present on any given shift at Vilnius Prison (population 453), 12 in Sector 2 (population 1,066) of Pravieniškes Prison, 17 at Alytus Prison (population 973) and 27 at Marijampole Prison (population 931). It is noteworthy that there was no night-time permanent custodial staff presence at Alytus, Marijampole and Pravieniškes Prisons (custodial officers came to the detention blocks approximately every 2 hours)."
"strong impression that the main detention areas in the three prisons were unsafe for inmates, and that the only parts of the establishments under the full control of the administration were the punishment blocks (KTP) which were almost invariably frequently used and constantly filled to capacity". (Paragraph 23)
Inmates seeking protection were spending months, if not years, in small, often dilapidated cells with an impoverished regime. Their situation –
"was rendered worse by the … absence of provisions permitting the segregation of prisoners from those in the main accommodation on the grounds of their own security. The only legal possibility, at least in the view of prison directors, was to use disciplinary provisions (punishing the prisoners concerned, …. for their refusal to stay in their "normal" units)." (Paragraph 23)
The CPT report characterised this as "prisoners asking for protection received instead isolation and punishment" (paragraph 23).
Assurances by the Respondent
"all persons surrendered … from the United Kingdom … will not be accommodated in the cells which include the possibility of contact with inmates accommodated in dormitory blocks of Alytus Correctional House, Marijampole … and Sector No. 1 and No. 2 of Pravieniškes Correctional House… We inform you that convicted persons being imposed a custodial sentence are placed in dormitory-type blocks (convicted persons serving sentences in prison regime or serving sanctions in cell-type premises excluded) and the establishments you have listed are the main establishments for placement of sentenced adult males. Provision of the requested assurances and/or guarantees would lead us to have no place for accommodation of persons surrendered to the Republic of Lithuania from the United Kingdom on the grounds of the European Arrest Warrant in future."
"Thereby, there is no potential risk for inmates, accommodated in dormitory type premises of correctional institutions to be in contact with leaders of informal prison hierarchy and its handymen and other inmates, making a negative influence to the other inmates."
"Surrendered inmates will be detained separately, where possible, and excluding or minimising the contacts with inmates making a negative influence to the other inmates, leaders of informal prison hierarchy and its handymen, reducing a risk of inter-prisoner violence/disease transfer and drug influences, etc."
"2. … As for the inter-prisoner violence, we would like to assure that the prison staff does not tolerate any forms of violence and inappropriate treatment among inmates. The main duties of criminal intelligence units, which are established in all correctional institutions, are to monitor psychological climate among inmates, identify and prevent possible threats or criminal acts. In case an inmate is suffering inappropriate behaviour, menace or any form of discrimination from other inmates or feels insecure, he/she has a right to submit a complaint to the administration of the correctional institution. Please be informed that in all such cases the internal investigation is launched and an inmate is immediately isolated from the alleged perpetrators (e.g. is accommodated in a single cell) during the whole period of investigation of his/her complaint. Provided such inmate's statements are confirmed, he/she is transferred to another cell or sector of the correctional institution or another correctional institution.
3. Seeking to reduce the drug use in correctional institutions their illegal supply should be combated. Different ways are used: inspection of persons and employees incoming to/outgoing from correctional institutions, a search of accommodation premises, use of technologies and engineering devices, dog handlers with dogs, an inspection of visitors, etc. Furthermore, every correctional institution is implementing approved plans on prevention of smuggling of forbidden items into correctional institutions, that set forth the correctional institution-specific measures of their implementation.
4. Seeking to encourage inmates to receive drug treatment educational activities are carried out at correctional institutions, inmates are promoted to participate in social rehabilitation programs and offered methadone substitutional treatment.
5. Seeking to reduce the spread of communicable diseases in correctional institutions preventive screening for communicable diseases is carried out and, if identified, timely medical treatment is provided; educational activities on giving up addictive habits are carried out and information on protection from communicable diseases is provided. Since spring of 2018, all HIV infected persons are subject to HIV treatment, and since 1 May 2019 all persons ill with serious communicable diseases are included in the national health system, i.e. their medical treatment is financed with the Compulsory Health Insurance funds."
"The in-house spread of HIV cases in correctional institutions in 2018-2019 was not identified. The decrease of HIV spread was affected by the amendments to legislation re HIV treatment."
The letter is then signed by the Director General of the prison service.
Fresh Evidence: Liutkevicius
"the caste system is prevalent, thus targeting and isolating fraction of prisoners is unlikely to suddenly stop a social system that has been thriving for years. Even if the relocated prisoners were the 'ring-leaders', it is more likely for new leaders to take position in their absence rather than the caste system going away… Doubt remains whether isolating these prisoners is sufficient to prevent them from exerting their influence within the prison."
"…only agreed to speak with a local administration officer without the presence of any 'outsider', to which the latter complied. This has cast doubts, whether there are informal and illicit agreements between inmates and local administration officers".
"there are no legal rules nationally requiring preferential or special treatment of prisoners … previously surrendered to Lithuania … Nor there are special mechanisms or bodies in Lithuania dedicated to ensuring that such guarantees are upheld".
Further Evidence: Dr Sakalauskas
2015 2016 2017 Criminal offences recorded by Prison Department of which:
274
260
331Murders 3 0 2 Grievous Bodily harm 2 2 8 Actual bodily harm 313 24 31 Resisting a public official 12 2 5 Related to narcotic or psychotropic drugs 157 153 182 Thefts 4 10 6 Fraud cases 2 5 0 Criminal damages 3 1 4
"an essential determinant of the life of prisoners … In other words, sub-culture and unwritten prisoner interaction rules are far more important than formal rules, the unwritten prisoner rules are respected, and sanctions including violence are imposed by prisoners for non-compliance."
2017 2018 2019
8 monthsOffenses recorded by the Department of Prisons, of which: 331 430 284 Murders 2 1 1 Grievous Bodily harm 8 1 2 Actual bodily harm 31 28 22 Causing physical pain and actual bodily harm 29 65 36 Threats to kill or seriously impair health, bullying 7 9 6 Resisting an officer on duty 5 13 9 Related to narcotic or psychotropic drugs 182 239 155 Theft 6 6 1 Extortion 9 14 5 Fraud 0 1 2 Destruction or damage to property 4 4 1
The Law
"51. Accordingly, where the judicial authority of the executing Member State is in possession of information showing there to be a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State, in the light of the standard of protection of fundamental rights guaranteed by EU law and, in particular, by Article 4 of the Charter, that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing Member State of the individual concerned by a European arrest warrant. The consequence of the execution of such a warrant must not be that that individual suffers inhuman or degrading treatment (judgments of 5 April 2016, Aranyosi and Caldararu, C-404/15…"
Article 3/4: The Appellants' Submissions
The Respondents' Submissions
"6. While I do not go so far as to say that the absence of such a judgment will inevitably defeat a claim that there is a real risk of a breach of Article 3, it will be very difficult for any requested person to establish such a risk if the ECtHR has not been persuaded that a systemic problem or similar dysfunction exists. There have been a number of cases decided by the ECtHR dealing with the Article 3 claims in relation to treatment in Latvian prisons. Many have resulted from particular assaults or ill-treatment which were, it was alleged, not properly prevented or investigated. The only possible systemic failure has been the lack of an independent investigation into assaults, whether by prison or police officers or other prisoners. But this does not establish that there is a real risk that such assaults or ill-treatment will occur or that there will be no satisfactory means of protecting vulnerable prisoners. It could only show that if such an assault or ill-treatment occurred it might not be investigated by an independent body rather than by persons subject to control by the prison authority."
"24. The plain fact is that the argument throughout has been bedevilled by a failure to grasp the distinction in non-state agent cases between on the one hand the risk of serious harm and on the other hand the risk of treatment contrary to article 3. In cases where the risk "emanates from intentionally inflicted acts of the public authorities in the receiving country" (the language of para 49 of D v United Kingdom 24 EHRR 423, 447) one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the proscribed treatment. Where, however, the risk emanates from non-state bodies, that is not so: any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection. If someone is beaten up and seriously injured by a criminal gang, the member state will not be in breach of article 3 unless it has failed in its positive duty to provide reasonable protection against such criminal acts."
"April 2019
Total population: 6,440
Total capacity: 8,011
March 2018
Total population: 6,658
Total capacity: 8,104
September 2016
Total population: 7,004
December 2012
Total prison population: 9,754"
If there is any slight upturn in the prison population in very recent times, that cannot be said to bring the prisons back up to total capacity. In regard to the three specific prisons under consideration, they are overall under the legal capacity as confirmed by the October letter from the Lithuanian government. As at April 2019, Alytus prison was at 57%, Marijampole at 104%, Pravieniškes at 90%.
Conclusions on Article 3
Assurances
The Duty of Candour and Disclosure
"(1) It is for the requesting state alone to determine the evidence upon which it relies to seek a committal.
(2) The requesting state is not under any general duty of disclosure similar to that imposed on the prosecution at any stage in domestic criminal proceedings.
(3) The magistrates' court has the right to protect its process from abuse and the requesting state has a duty not to abuse that process. That is no different from saying that the requesting state must fulfil the duty which it has always had of candour in making applications for extradition.
(4) In fulfilment of that duty, the requesting state must disclose any evidence which would render worthless the evidence on which it relies to seek committal.
(5) It is for the person subject to the extradition process to establish that the requesting state is abusing the process of the court.
(6) The requested state may be given power to request further evidence under the relevant Order in Council but, in the absence of evidence of abuse, the court is entitled to, and should generally, refuse to request the UK authorities to exercise that power or to adjourn to permit it to be exercised." (paragraph 26)
"8. The duties of the requesting state and of the CPS can, in my view, be summarised as follows: the duty of the requesting state includes, pursuant to its duty of candour and good faith, the obligation to disclose evidence which destroys or very seriously undermines the evidence on which it relies. The CPS has independently a similar duty. It also has a duty to ensure that the requesting state fulfills its duty. Finally, it has a duty to withdraw from the proceedings if it finds itself put in the position where its duty to the court conflicts with its duties to the requesting state. That is, I believe, a full and accurate statement of the law as expounded in Raissi."
Section 25 Extradition Act 2003: Bartulis
"I also noted that Mr Bartulis stressed how he feels embarrassed and ashamed to talk about his experience in custody of being beaten and abused, especially with women. I note that, until very recently, all of the solicitors and counsel involved in his case have been female. …"
"I asked him if he had experienced any recent thoughts of self-harm or suicide and he replied to say: 'not now… I don't know what would happen if I was being deported… they would put me in prison… I think it would be the same like before… maybe even worse'. He said that he believes he will feel worse than he does now, that he will have 'nobody to support me' and that his life would be at risk, 'I am certain about that'. He said that he believes he will become suicidal within this context because I do not want to suffer same things like before."
"(1) The court has to form an overall judgment of the facts of the particular case.
(2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him.
(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition were to be made. There has to be a 'substantial risk that [the appellant] will commit suicide'. The question is whether, on the evidence the risk of the appellant succeeding committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.
(4) The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.
(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?
(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide?
(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind."
"…when the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary… In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption. It is therefore only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective."
i) There is no proper basis for this court to grant permission to raise a new ground of appeal which could have been raised on Bartulis' evidence before the lower court (see para 146 above).
ii) Bartulis could have produced medical evidence before the lower court to corroborate the injuries he says he sustained and his mental health condition, but he did not do so. What Bartulis told Dr Forrester adds little, if anything, of significance to his evidence before the lower court. That being so, we do not consider Dr Forrester's report to be admissible.
iii) In any event, if it were to be admissible, we do not consider that it would be decisive (see Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin). Dr Forrester is of the opinion that it is very unlikely that Bartulis' mental health condition can be effectively treated in prison in Lithuania "because the original physical and psychological traumas that lie behind these conditions were experienced in that same environmental context" (para 12.9). However, Bartulis will not be returning to the "same environmental context". The premises to which he will be returned have been renovated, and the prison conditions have materially changed.
iv) Lithuania is presumed to provide adequate health care; and the evidence filed in the appeal by the Respondent has confirmed (6/8/19):
"Full medical care is also guaranteed for inmates under the law. Services of general practitioner, psychiatry and odontology doctors are ensured in each correctional institution. If necessary, inmates can get other medical services in Central Prison Hospital or public healthcare institution."
There is no reason to consider that Bartulis will not be provided with adequate healthcare, if required; and there is no evidence that the Lithuanian authorities do not provide appropriate preventative measures.