FOURTH SECTION
Application no. 13566/13
Kęstutis MARTUZEVIČIUS
against the United Kingdom
lodged on 22 February 2013
STATEMENT OF FACTS

The applicant, Mr Kęstutis Martuzevičius, is a Lithuanian national, who was born in 1962 and lives in London. He is represented before the Court by Mrs Baba of Central Law Practice, a lawyer practising in Wembley.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a Lithuanian national, entered the United Kingdom in 1996. On 22 April 2010 the Deputy Prosecutor General in Lithuania issued a European Arrest Warrant (“EAW”) in which he was accused of having committed twenty-two dangerous felonies, including murders, robberies and extortion of property, between 1993 and 1997.
On 28 May 2010 the United Kingdom Serious Organised Crime Agency (“SOCA”) certified that the arrest warrant was valid and in conformity with the Extradition Act 2003. The applicant was arrested pursuant to the EAW in June 2011 and detained in HMP Belmarsh.
On 13 October 2011 the Magistrates’ Court ordered the applicant’s extradition to Lithuania. The applicant applied to the High Court to have the order set aside on two grounds: first, that the lapse of time since the commission of the alleged offences would render his extradition unjust and oppressive; and secondly, that his extradition would violate Articles 2 and 3 of the Convention because if returned to Lithuania he would be at risk of reprisals by a notorious criminal organisation.
In August 2012 a doctor at Belmarsh prison notified the applicant’s representative that he was suffering from paranoid delusions and that he had been referred to Broadmoor High Security Psychiatric Hospital. A report was prepared by Dr Hasnie, a Psychiatrist, on 6 November 2012 which recorded that the applicant had been suffering from depression since July 2012, that he was suffering from a delusional disorder and that he should be transferred to Broadmoor for treatment.
The authorities at Broadmoor did not accept that he should be transferred there. The legal representatives subsequently obtained a report from Dr Horne, also a Psychiatrist. Dr Horne did not have an opportunity to meet with the applicant before preparing his first report and therefore based it upon information about his condition obtained from the prison. In that report, which was dated 9 December 2012, he noted that the applicant appeared to be seriously depressed, that he was suffering from a delusional disorder, and that there was a risk of suicide. Dr Horne also expressed some surprise that the applicant’s transfer to Broadmoor had not been granted. He suggested that the refusal decision from Broadmoor should be appealed and indicated that he would be happy to provide a full psychiatric report. Dr Horne was also asked about the risk of suicide on extradition and the applicant’s fitness to plead and stand trial but he was unable to comment on these matters without having examined him.
The High Court hearing was listed for 11 December 2012. The applicant sought an adjournment in order for a full psychiatric report to be obtained.
On 11 December 2012 the High Court refused the application for an adjournment. It also refused to set aside the order of the Magistrates’ Court and refused to grant the applicant permission to appeal to the Supreme Court.
At the hearing the applicant’s representative accepted that his return to Lithuania should only be barred on health grounds if it was clear that he would not be fit to plead or to stand trial, that is, it would be impossible for him to have a fair trial. As the court found that there was not even a reasonable possibility that he would be found to be unfit to stand trial, even if there were further reports, it refused the application for an adjournment. With regard to his substantive complaints the court held that his extradition would not be unjust or oppressive because, inter alia, it was to be assumed that there would be proper regard to Article 6 of the Convention in Lithuania and he would be able to rely on State protection against reprisals by the criminal organisation.
The High Court’s consideration of how his mental health condition would be affected by extradition and the treatment that would be available to him in Lithuania was limited to the following paragraph:
“As far as his mental state is concerned, there is evidence before us that the reports on his state if not already forwarded will be forwarded and any necessary treatment will be available to him either in hospital if that is necessary or perhaps as an outpatient if he is on bail.”
Dr Horne subsequently examined the applicant and prepared a report dated 6 January 2013. The report recorded that the applicant was suffering from a serious mental illness that could not be explained by malingering and which required treatment in hospital. Consequently, Dr Horne considered that an appeal to Broadmoor would have a high chance of success. In Dr Horne’s opinion the applicant was unfit to plead and stand trial and his mental health condition was likely to deteriorate and the risk of suicide increase if he were extradited to Lithuania.
The applicant sought to re-open the appeal on the basis of this report. However, on 19 February 2013 the High Court refused to certify a point of law of general public importance and thus refused to re-open the appeal.
On 21 February 2013 the High Court stayed the applicant’s extradition until four o’clock GMT on 27 February 2013 to enable him to apply to this Court for an interim measure under Rule 39 of the Rules of Court.
On 22 February 2013 the applicant’s legal representatives lodged an application before this Court on behalf of the applicant and requested an interim measure to prevent his extradition to Lithuania.
On 26 February 2013 the Court asked the Government to provide, by twelve o’clock noon GMT on 27 February 2013, a transcript of the High Court hearing of 11 December 2012 and at the same time to confirm whether or not any assurances had been received from the Lithuanian Government regarding the availability of mental health treatment in detention centres in Lithuania. The Government duly submitted a copy of the transcript and confirmed that there was no record of any assurances on the applicant’s file.
On 27 February 2013 the Acting President of the Section decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be extradited to Lithuania until further notice.
By letter dated 28 February 2013 the Court asked the Government to respond to the following questions by 21 March 2013:
“1. Are your Government aware of the medical report by Dr Andrew Sutherland Horne of 6 January 2013?
2. How do your Government respond to Dr Horne’s opinion that the applicant should be transferred to Broadmoor Hospital?
3. In your Government’s view, would the applicant have access to adequate mental health services upon extradition to Lithuania:
	(a) in detention pending trial?
	(b) if he were found not fit to plead?
	(c) if he were to be tried and convicted?
4. Does the applicant have continuing family and/or personal ties to Lithuania?”
The Government replied on 20 March 2013. In their letter they informed the Court that the only parties in extradition cases were the defendant and the Issuing Judicial Authority. As a consequence, the Government had not been represented as a party in the present extradition proceedings and were not in a position to provide the additional information requested.
B.  Relevant domestic law
1. The Extradition Act 2003
Part I of the Extradition Act 2003 deals with extradition to Category 1 territories which, by designation of the Secretary of State, include all the member states of the European Union which operate the European Arrest Warrant system. Lithuania is therefore a Category 1 territory.
Section 21 of the Act requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. If the extradition would be incompatible, then the judge is required to order the person’s discharge. Section 25 provides that if the physical or mental condition of the person whose extradition is requested is such that it would be unjust or oppressive to extradite them, then the judge must discharge them.
If the judge at the extradition hearing orders the person’s extradition, Section 26 provides for a right of appeal to the High Court. Section 32 provides for a right of appeal to the House of Lords against a decision of the High Court, with the leave of either the High Court or the House of Lords, which leave shall only be granted if the High Court has certified that the case involves a point of law of general public importance and the Court granting leave considers that the point ought to be considered by the House of Lords.
COMPLAINT
The applicant complains under Article 3 of the Convention that his extradition to Lithuania would breach Article 3 due to the severity of his mental health condition.

QUESTION TO THE PARTIES

In view of the applicant’s mental health condition, would his extradition to Lithuania be compatible with Article 3 of the Convention?