High Court of Ireland Decisions

AN ARD-CHÚIRT

 

THE HIGH COURT

[2025] IEHC 100

[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

 

JUDGMENT of Mr Justice David Keane delivered on the 4th 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 affidavit of the respondent, sworn on 14 March 2024 (' the third Lytvynenko affidavit'), exhibiting the temporary protection certificate issued to the respondent on behalf of the Minister, evidencing the initial permission given to him under s. 60 of the International Protection Act 2015 to reside in the State for one year from 21 September 2022

12.     A written legal submission in opposition to the application for extradition was filed on behalf of the respondent on 15 April 2024. 

13.     The AG filed a written legal submission in response on 8 May 2024.

14.     The applicant relies upon an affidavit of Peo Mosepele, a senior legal researcher in the Department of Justice ('the Department'), sworn on 10 May 2024 (' the Mosepele affidavit').  That affidavit exhibits two further affidavits of Mr Phillips, sworn on 14 March and 1 May 2024 (' the second and third Phillips affidavits').  The second Phillips affidavit addresses the contents of the Chen report, and the third Phillips affidavit addresses the contents of the Allenbaugh declaration.  The second and third Phillips affidavits were certified on 15 May 2024 by Thomas N. Burrows, an Associate Director of the Office of International Affairs in the Criminal Division of the United States Department of Justice.  Mr Burrows' 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 16 May 2024.

15.     The application came on for hearing on 14 and 15 May 2024.  The AG, as applicant, was represented by Tony McGillicuddy, Senior Counsel, with Anthony Hanrahan, barrister at law, instructed by Ciara McMahon of the Chief State Solicitor's Office.  The respondent was then represented by Ronan Kennedy, Senior Counsel, with Brian Storan, barrister at law, instructed by Matthew Kenny of O'Sullivan Kenny LLP.

16.     Over those two days, counsel for the AG brought the court through the formal proofs required in support of the application; counsel for the respondent brought the court through the respondent's points in opposition to the application; and then counsel for the AG embarked on his reply, which was not complete at the conclusion of the second day.  Due to the pressure of business before the court, it was not possible to resume the hearing on 16 May and it had to be further adjourned to resume on the next available hearing date, which was 11 July 2024.

17.     In the interim, on 24 June 2024, O'Sullivan Kenny LLP issued a motion seeking permission, pursuant to s. 215(1) of the Legal Services Regulation Act 2015, to withdraw from the representation of the respondent in this case.  That application was ultimately grounded on the affidavit of Matthew Kenny, sworn on 4 July 2024.  Mr Kenny averred that the respondent had informed him that he wished to represent himself for the remainder of the proceedings and, despite consultations on 22 and 28 June 2024, had maintained that position.

18.     That application for leave to come off record was heard on 4 July 2024. In moving it on behalf of O'Sullivan Kenny, Mr Kennedy SC was at pains to emphasise that it arose out of the respondent's desire to represent himself, rather than from the desire of the firm to cease representing him.  The court then received, through a Russian language interpreter, the respondent's express confirmation that he did indeed wish to dismiss his legal representatives and to represent himself.  Mindful in particular of the obligation to consider any delay or other adverse consequence for the proceedings that may arise from the legal practitioner's withdrawal, the court asked the respondent to confirm both his understanding that the hearing of the application for his extradition was to resume the following week and his desire to represent himself at that hearing in those circumstances.  The respondent gave that confirmation.

19.     The court acceded to the application of O'Sullivan Kenny to cease representing the respondent.  In doing so, the court drew on the principles that govern the entitlement of an accused person to represent himself or herself in a criminal trial.  Those principles were identified by Clarke J in Burke v O'Halloran [2009] 3 IR 809 and are as follows.  First, an accused person has a prima facie entitlement to litigate in person as a corollary of the right to legal representation.  Second, it would require some very significant countervailing circumstance before a trial judge could legitimately refuse the application of an accused person to dispense with the services of his or her legal representatives and to conduct the defence as a litigant in person. And third, a party who chooses to represent himself or herself is no less bound by the laws of evidence and procedure and by the rulings of the court than any other party. In my view, those principles apply with equal force to the entitlement of a respondent in extradition proceedings to litigate in person, although I fully acknowledge that extradition proceedings are sui generis in nature; Koulibaly v Minister for Justice [2004] IESC 50 (Unreported, Supreme Court, 29 July 2004) (per Denham J at p.4), Attorney General v Parke [2004] IESC 100 (per Murray CJ at p. 11).

20.     Almost immediately after his legal representatives withdrew, the respondent indicated that he wished to expand his points of objection to extradition (to encompass further as yet unspecified grounds); to submit further (as yet unspecified) documents to the court; and to request a preliminary hearing (of an unspecified kind) before the resumption of the extradition hearing. The court indicated that any such procedural application would be dealt with at the resumption of the extradition hearing.

21.     When the extradition hearing resumed on 11 July 2024, the court informed the parties that it would be adopting the approach described in the following terms by Master Evan Bell of the Court of Judicature in Northern Ireland in an article entitled ' Judges, Fairness and Litigants in Person', [2010] JSIJ 1 (at pp 5-6):

          'The primary principle applied by judges in cases involving self-represented litigants is the principle of fairness.  Fairness is the touchstone which enables justice to be done to all parties.  A judge in proceedings involving a self-represented litigant must balance the duty of fairness to the litigant with the rights of the other party, and with the need for as speedy and efficient a judicial determination as is feasible.  Achieving this balance is one of the most difficult challenges a judge can face.  While a trial judge's overarching responsibility is to ensure that the hearing is fair, it is not unfair to hold a self-represented litigant to his choice to represent himself.  A litigant who undertakes to do so in matters of complexity must assume the responsibility of being ready to proceed when his case is listed.  If he embarks upon the hearing of his case, he is representing to the court that he understands the subject matter sufficiently to be able to proceed.  Although it may later become patently obvious that he is not, litigants who chose to represent themselves must accept the consequences of their choice.  While the court will take into account the litigant's lack of experience and training, implicit in the decision to represent himself is the willingness to accept the consequences that may flow from that lack.  Indeed, to hold the contrary would mean that any party could derail proceedings by dismissing his representatives.

          It is the court's duty to minimise the self-represented litigant's disadvantage as far as possible, so as to fulfil its task to do justice between the parties.  However, the court should not confer upon a personal litigant a positive advantage over his represented opponent nor is it the position that the party with the greater expertise must be disadvantaged to the point at which they have the same experience effectively as the other party.  That would be a perversion of what is required.'

22.     The passage just quoted was cited with approval by Clarke J in ACC Bank v Kelly [2011] IEHC 7, (Unreported, High Court, 10 January 2011).  

23.     At the suggestion of counsel for the AG, the respondent was invited to identify any additional issues that he wished to raise, beyond those set out in the points of objection already filed on his behalf.  Despite the respondent's position that he is a qualified lawyer in Ukraine and despite the assistance of a Russian language interpreter, the process of eliciting those additional issues took up considerable time on 11 and 12 July 2024 before finally resulting in the creation of an issues paper ('the issues paper'), adopting each of the nine objections set out in the existing points of objection and adding fifteen more.  To facilitate the respondent's request for permission to adduce further evidence in support of his expanded objections to extradition and, given the logistical difficulties of having his proposed testimony translated from Russian into English and put on affidavit while he  remained in custody, an arrangement was made whereby, in open court on 16 July 2024, the respondent furnished a Russian language document setting out his proposed testimony, and the AG's office arranged to have that document translated for the respondent's approval.  The original handwritten Russian language document and a typed certified English language translation of it were then each exhibited to an affidavit of Nessa O'Doherty, a principal officer in the Department of Justice, sworn on 23 July 2024.

24.     When the matter came back before the court on 7 August 2024, the respondent confirmed under oath that he wished to adopt the contents of the typed English translation of his handwritten statement in Russian as his sworn evidence to the court. In those circumstances and solely for convenience, I will refer to that typed statement as 'the fourth Lytvynenko affidavit'.

25.     The respondent was next given an opportunity to make oral submissions to the court on the law and evidence in support of his objections to extradition and, in his own fashion, did so. 

26.     Counsel for the AG was then permitted to resume the reply that had been commenced but not completed when the hearing was adjourned on 15 May 2024 and to reply to the respondent's further submissions in support of his expanded points of objection to extradition. At the outset of that reply, counsel for the AG submitted that, in the exercise of its inquisitorial role, the court might wish to consider seeking further evidence from the requesting country on the nature and scope of the operation of the refugee status application process and of the principle of non-refoulement there, in light of the respondent's objection that, if extradited to the USA, he is at risk of being returned later to Ukraine where he is at risk of being deprived of his fundamental human rights.  The inherent jurisdiction of the court to seek further evidence to enable it to determine whether there are substantial grounds to believe that the respondent, if extradited, faces a real risk of being subjected to a breach of his fundamental rights in the requesting state is well established; see Attorney General v A.B. [2018] IEHC 583 (Unreported, High Court (Donnelly J),22 October 2018) ('A.B.'), applying Minister for Justice v Rettinger [2010] 3 IR 783 (at 801) (' Rettinger').  It flows from the inherently inquisitorial function of the court in extradition cases; Attorney General v Parke [2004] IESC 100 (per Murray CJ at p. 14).  Moreover, the process is specifically provided for under Article IX of the Ireland-United States Extradition Treaty (which treaty is described in more detail later in this judgment). While noting the objection of the respondent, the court decided to adopt that course. The Department sent an e-mail, dated 8 August 2024, to the US Department of Justice, setting out the details of the court's request for further evidence. Mr Phillips, as Assistant US Attorney for the Middle District of Tennessee, provided a substantive reply by letter dated 16 September 2024.

27.     The AG also sought, and was granted, liberty to file an affidavit or affidavits in response to various averments in the fourth Lytvynenko affidavit about the circumstances of the respondent's arrest and of the search of his home on 6 July 2023.  Three such affidavits were filed.  The first is an affidavit of Malachy Dunne, a Detective Garda (now retired), sworn on 18 September 2024 (' the Dunne affidavit'). As a member of the Garda Extradition Unit, Detective Garda Dunne executed the warrant to arrest the respondent at the respondent's home on 6 July 2023.  The second is an affidavit of Michael Ryan, a serving Detective Sergeant, sworn on 20 September 2024 (' the Ryan affidavit').  As a member of the Garda National Cyber Crime Bureau, Detective Sergeant Ryan executed two search warrants on 6 July 2023: one for the respondent's apartment, and the other for the common areas of his apartment building.  Each of those warrants was issued by the District Court pursuant to s. 74 of the Criminal Justice (Mutual Assistance) Act 2008. The third affidavit filed is that of Nessa O'Doherty, sworn on 20 September 2024.  As a principal officer in the Department, Ms O'Doherty exhibits certain correspondence received by the Department from the respondent and from his wife in August and September 2024.

28.     The hearing resumed on 2 October 2024.  Counsel for the AG began to open the various affidavits just described but was interrupted by the respondent.  Eventually, it became clear that the respondent was seeking two things.  First, he wanted the court or the AG to secure new legal representation for him, although subject to his approval. Second, he wanted the extradition hearing adjourned generally either to enable those legal representatives to prepare for a full rehearing of the extradition application or to enable the Garda Síochána Ombudsman to investigate the circumstances of his arrest, or both. The court indicated that it would rule on each of those applications immediately upon the resumption of the extradition hearing on the next available date, 23 October 2024.

29.     On the resumption of the hearing on that date, the respondent sought, and was given, an opportunity to make further submissions on those applications.  The court then gave an ex tempore ruling to the following effect: first, that neither the court nor the AG had any role to play in actively procuring alternative legal representation for the respondent; and second, that the respondent had signally failed to establish that that his right to natural and constitutional justice and fair procedures necessitated a further adjournment, so that the hearing must proceed.

30.     Counsel for the AG then laid before court the letter of Mr Phillips, dated 26 September 2024, providing the further evidence requested by the court and enclosing a number of relevant extracts from Title 8 of the United States Code ('USC') relating to claims of asylum ('the Phillips letter'), a copy of which had already been furnished to the respondent.  The Phillips letter was certified on 30 September 2024 by Thomas N. Burrows, an Associate Director of the Office of International Affairs in the Criminal Division of the US Department of Justice.  Mr Burrows' status as such at the material time, duly commissioned and qualified, is the subject of a signed, sealed certificate of Merrick Garland, the US Attorney General, dated 2 October 2024.

31.     The AG submits that the Phillips affidavits and Phillips letter (together with their exhibits and enclosures) are admissible in evidence under s. 37(1) of the Act of 1965, whereby in any proceedings under Part II of that Act any document supporting a request for extradition and any evidence in writing received from a county (other than a Convention country) shall be received in evidence without further proof if, first, sealed or signed by an officer of the requesting country and, second, certified with the seal of an office holder in the requesting state performing functions comparable to those of the Minister under the Act of 1965 (with judicial notice to be taken of that seal). 

32.     However, on my reading of the law, s. 3(1A) of the Act of 1965, as amended by the Extradition (European Union Conventions) Act 2001 ('the Act of 2001'), defines a 'Convention country' for the purpose of the amendments to the Act of 1965 effected by Part 2 of the Act of 2001, as one designated by order under s. 4 of the Act of 2001, and s. 3(1B) of the Act of  1965, as amended by the Act of 2001, defines a Convention country for the purposes of the amendments to the Act of 1965 effected by Part 3 of the Act of 2001, as one designated by order under s. 10 of the Act of 2001.  Section 37 of the Act of 1965, as it now stands, was substituted (and, thus, amended) by s. 17(b) of the Act of 2001.  Under the Extradition (European Union Conventions) Act 2001 (Section 4) Order 2010 (S.I. No. 43 of 2010), the USA is designated as a country deemed to have adopted the European Union Convention on Simplified Extradition 1995 and, under the Extradition (European Union Conventions) Act 2001 (Section 10) Order 2010 (S.I. No. 44 of 2010), the USA is designated as a country deemed to have adopted the European Union Convention on Extradition between Member States 1996. I can find nothing to suggest, much less establish, the subsequent revocation of either of those statutory instruments.

33.     On that reading, the relevant documents before the court are admissible instead under the less stringent evidentiary rule set out in s. 37(2) and (3) of the Act of 1965 as amended. Section 37(2) provides that a document purporting to be a copy of a document supporting a request for extradition from a Convention country shall, subject to subsection (3), be received in evidence without further proof.  In material part, subsection (3) provides that a document that purports to be certified as a true copy of the warrant of arrest by an officer of the Central Authority of the requesting country duly authorised to do so shall be received in evidence without further proof.

34.     For the avoidance of doubt, I conclude that, on either reading, the result is the same.  The relevant documents are admissible in evidence. 

35.     Returning to the hearing of the extradition application on 24 October 2024, counsel for the AG resumed, and concluded, the process of opening the relevant affidavits and documents to the court, before briefly resuming and concluding his reply to the submissions that had been made in opposition to extradition by both the respondent's former legal representatives and the respondent as a litigant in person. The respondent repeated his submission that there should be a full rehearing of the application, a submission that the court again rejected. The application then concluded, and judgment was reserved.

36.     The matter was listed for mention on 29 November 2024.  On that date, the court was informed that a firm named Danny Nolan Solicitors was now representing the respondent for the purpose of taking the court's judgment and advising the respondent upon it.

37.     It has since come to the court's attention that, on 6 January 2025, the respondent, as an applicant in person, brought an application to the High Court (Jackson J) for an Inquiry pursuant to Article 40.4.2 of the Constitution into the lawfulness of his detention, which application was refused.

The statutory test for committal or discharge on an extradition request

38.     Under s. 29 of the Act of 1965, to make an order committing a person to prison to await the order of the Minister for his extradition, the court must be satisfied that -

(a)     the extradition of the person has been duly requested, and

(b)     Part II of the Act of 1965 applies in relation to the requesting country, and

(c)     extradition of the person claimed is not prohibited by Part II or by the relevant extradition provisions, and

(d)     the documents required to support a request for extradition under s. 25 of the Act of 1965 have been produced.

39.     I will address each of those requirements in turn, reversing the order of the last two in the interest of greater clarity.

i.        extradition duly requested

40.     I am satisfied that, in accordance with s. 23(1)(a) and (2)(a) of the Act of 1656, the extradition request, date 8 June 2023, was duly communicated in writing by the Embassy of the USA in Dublin, as the diplomatic agent of the USA, to the Minister.

ii.       Application of Part II to the USA

41.     Section 8 of the Act of 1965 empowers the Minister for Foreign Affairs to apply the provisions of Part II of that Act in relation to any country with which the State has made an extradition agreement (by international agreement or convention to which the State is a party), or to any country that the Government is satisfied will afford reciprocal facilities.

42.     The Treaty on Extradition between the State and the United States (' the Ireland-United States Extradition Treaty'), was signed in Washington D.C. on 3 July 1983. The United States Treaty was supplemented (and to some extent superseded) by the Agreement on Extradition between the European Union and United States of America (' the U.S.-EU Extradition Agreement'), which was signed at Washington D.C. on 25 June 2003, and came into force in 2009.

43.     Part II of the Act of 1965 currently applies in relation to the USA pursuant to the Extradition (United States of America) Order 2019 (S.I. No. 393 of 2019) ('the 2019 Order').  The U.S.-EU Extradition Agreement and the Ireland-United States instrument under Article 3(2) of the Ireland-United States Extradition Treaty, acknowledging the extent to which it is amended by the U.S.-EU Extradition Agreement, are each scheduled to the 2019 Order, and the integrated, or amended, text of the Ireland-United States Extradition Treaty is annexed to it.

44.     Section 8(2) of the 1965 Act provides that, where the Government have made an arrangement amending an extradition agreement, the Minister for Foreign Affairs may by order so declare and the extradition agreement shall thereupon have effect as so amended. Under s. 8(3) and (3B) such an order reciting or embodying the terms of an agreement or of the amending of such an agreement shall be evidence of the agreement and of its terms.  And under s. 8(5), every extradition agreement shall have the force of law in accordance with its terms.

45.     Where Part II of the Act of 1965 applies in relation to a country and that country duly requests the surrender of a person who is being proceeded against in that country, then, under s. 9 of the Act of 1965, that person shall be surrendered to that country, subject to and in accordance with the provisions of that part.

iii.      production of the supporting documents required under s. 25 of the Act of 1965

46.     Under s. 25 of the Act of 1965, a request for extradition is required to be supported by the following documents:

(a)     the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or, as the case may be, of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting country;

(b)     a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and place of commission, its legal description and a reference to the relevant provisions of the law of the requesting country;

(c)     a copy or reproduction of the relevant enactments of the requesting country or, where this is not possible, a statement of the relevant law;

(d)     as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality, including, where available, any fingerprint, palmprint or photograph, and

(e)     any other document required under the relevant extradition provisions.

47.     An authenticated copy of the arrest warrant for the respondent, dated 22 May 2023, is exhibited to the first Phillips affidavit, satisfying the requirement under s. 25(1)(a).

48.     A statement of each of the two offences for which extradition is requested is set out in the authenticated copy of the indictment against the respondent, dated 22 May 2023, satisfying the requirement under s. 25(1)(b).  It is a form of what is known as a speaking indictment, certainly when compared to the form of indictment in this jurisdiction stipulated under the Criminal Justice (Administration) Act 1924. 

49.     The respondent is alleged to have committed an offence of conspiracy, contrary to Title 18, United States Code, s. 371 ('I8 USC 371'), beginning in 2020 and continuing until at least June 2022, in the Middle District of Tennessee and elsewhere, to commit a number of offences of fraud and related activity in connection with computers, in violation of 18 USC 1030(a)(2)(C) and (c)(2)(B)(i) (accessing a computer without authorisation for financial gain); 18 USC 1030(a)(5)(A) and 1030(c)(4)(B) (transmission of a programme causing loss); and 18 USC 1030(a)(7)(C) and 1030(c)(3)(A) (extortion) ('the first offence').

50.     The respondent is further alleged to have committed a separate offence of conspiracy, contrary to 18 USC 1349, beginning in 2020 and continuing until at least June 2022, in the Middle District of Tennessee and elsewhere, to commit wire fraud (wire fraud), in violation of 18 USC 1343 ('the second offence').

51.     An authenticated reproduction of each of the relevant enactments, in this instance the relevant provisions in the United States Code, is included as an attachment to the first Phillips affidavit, satisfying the requirement under s. 25(1)(c).

52.     A description of the respondent is included in the authenticated copy of the arrest warrant for the respondent, dated 22 May 2023, exhibited to the first Phillips affidavit, and information which helps to establish his identity, together with two photographs of the respondent (in one of which he his holding open the identification page of his passport) are exhibited to the Rousseau affidavit, in turn exhibited to the first Phillips affidavit (comprising together as accurate a description as possible of the person claimed and, thus, satisfying the requirement under s. 25(1)(d)).

53.     Under s. 25(1)(e) of the Act of 1965, the extradition request is required to be supported by any other document required under the relevant extradition provisions. Under paragraph 3 of Article VIII of the integrated Ireland-U.S. Extradition Treaty, every request for extradition must be supported by documents which contain, amongst other things, 'a statement of the pertinent facts of the case, indicating as accurately as possible the time and place of commission of the offence'. 

54.     In this instance, the statement of the pertinent facts of the case set out in the authenticated copy of the indictment is supplemented by a short summary of the criminal conduct alleged set out in the first Phillips affidavit (at paragraphs 19 and 20) and by a summary of the evidence of the conspiracy offences and of the evidence linking the respondent to those offences set out in the Rousseau affidavit, duly authenticated as an attachment to the first Phillips affidavit.

55.     The relevant paragraphs in the first Phillips affidavit are as follows:

'19.    On May 22, 2023, LYTVYNENKO was indicted by a federal grand jury sitting in the Middle District of Tennessee.  According to the Indictment, beginning sometime no later than 2020 and continuing until on or about June 2022, in the Middle District of Tennessee and elsewhere, LYTVYNENKO and others conspired to violate the Computer Fraud and Abuse Act and to commit wire fraud.  Specifically, LYTVYNENKO and his co-conspirators agreed to infect victims' computers and defraud them with Conti ransomware, a type of malicious software which encrypted some or all of the data stored on victims' computers. LYTVYNENKO and his conspirators then demanded the victims pay a cryptocurrency ransom in exchange for: (1) a decryption key for the encrypted data: (2) a promise not to publicize the breach of the victims networks on the internet; and (3) a promise not to publicize the breach of the victims' networks on the internet.

20.     Among other things, the Indictment alleges that LYTVYNENKO and his co-conspirators deployed Conti ransomware on at least three victims in the Middle District of Tennessee, including a government entity and two businesses.  Two of the victims paid a combined ransom of approximately $634,000 in cryptocurrency.  The other victim declined to pay the ransom and ransomware actors published its data.'

56.     That part of the Rousseau affidavit that sets out the evidence uncovered by the FBI linking the respondent to each of the conspiracies alleged runs to six pages.  Those averments of Special Agent Rousseau may be summarised as follows.

57.     Before deploying malware on victim networks, cybercriminals often upload their malware to a counter-antivirus service to determine whether antivirus programs will detect their attacks.  In or about October 2022, the FBI learned a user with the email address "[email protected]" uploaded a malicious file to a counter-antivirus service.

58.     The FBI obtained a warrant to search the Google account of the person associated with that email address. An analysis of the data obtained in that search identified the respondent as that person and revealed evidence of his criminal activity.  The respondent's Google Drive contained: Conti victim activity between approximately August 2021 through February 2022; hacking and ransomware tools, Conti ransomware victim information (mixed in with the respondent's identifiers), and Conti ransomware documentation.

59.     Data in the respondent's Google account indicated that he acted as a developer or hacker, or both.  Special Agent Rousseau instances a note that, when translated, speaks of writing malware for payment and references a more senior Conti conspirator as a 'team leader'.  The account contained various hacking and ransomware software tools used to facilitate and carry out the unauthorised copying or transfer of data from a victim's computer to one controlled by a cybercriminal.

60.     The respondent's Google Drive contained data belonging to Conti ransomware victims.  In one folder, there are twelve files, each of which appears to represent a separate Conti ransomware victim.  Each file contains sensitive internal computing information, such as passwords, usernames, file names, and Windows network information. Subsequent inquiries by the FBI with seven of the twelve apparent victims confirmed that each had been the victim of a ransomware attack; three had been attacked using Conti ransomware; and six were able to confirm data found in the files as their private data.  Data for one of the victims identified on the respondent's Google Drive was also found located on the server which stored the centralised Conti recovery site.  Losses associated with the attacks on those victims total at least $410,000 in ransom paid.  Those victims also reported an additional loss of approximately $638,650 in associated costs such as lost business, network recovery, and lawyers and consultants' fees.

61.     In addition, many folders on the respondent's Google Drive include log in details for a New Zealand-based remote file-hosting service used by Conti conspirators to temporarily host stolen victim data.  Three files indicate the use of a particular account to store stolen data on that service.  Other data on the respondent's Google Drive shows that the respondent controlled and used that account.

62.     Another folder on the respondent's Google Drive contains a manual for operating the Conti locker.  The same folder contains source code for uploading victims' data to the New Zealand file-hosting service. That source code contains the victims' names and the credentials for one of the accounts with the file-hosting service. The respondent's Google Drive also contains text files containing information that would help a ransomware conspirator complete a ransomware attack; for example, information on how to run a remote command on the Windows domain controller, a step that is one of the most important parts of such an attack.

63.     Quite separately, Google analytics data on the respondent's Google account showed that the respondent had searched for ways to thwart Windows authentication and for ways to find a domain controller on a Windows network and had read books on Google and watched YouTube videos on malware, hacking, Windows administration, building a remote access tool, and penetration testing.

64.     Several emails in the respondent's email account showed that he had taken hacking and computer intrusion classes. The respondent's resumé, found in his Gmail account, claimed skills as a network penetration tester (for ten years) and familiarity with the 'Cobalt Strike' and 'Metasploit' software programmes.  The FBI investigation reveals that members of the Conti conspiracy were prolific users of Cobalt Strike, which allowed them to remotely control compromised computers to launch ransomware, and that they were also users of Metasploit. In the resumé the respondent also claims to have done work indicative of cyber-criminal activities, such as 'Penetration testing network and vulnerability AD', 'mail vulnerability testing', and 'vulnerability exsploit' (sic).

65.     In addition, cryptocurrency tracing indicates that the respondent received payments from Conti conspirators.  On 22 April 2022, the respondent emailed Bitmex, a virtual currency exchange, providing his Bitcoin address with Binance, one of the largest virtual currency exchanges worldwide.  That email included an image of the respondent's Ukrainian passport. The FBI has examined the publicly available blockchain associated with the movement of funds to and from the respondent's Binance Bitcoin address. That address received four deposits from a cluster of bitcoin addresses attributed to another Conti conspirator.  The payments from that conspirator to the respondent's account occurred during approximately the same period as the attacks on approximately six of the victims whose data was found in the respondent's Google Drive.

66.     On the basis of the material I have just described, I am satisfied that the extradition request is supported by documents that contain a statement of the pertinent facts of the case, indicating as accurately as possible the time and place of the commission of the offence, satisfying the relevant requirement under s. 25(1)(e) of the Act of 1965.

67.     Indeed, although there is a notable asymmetry in the Ireland-U.S. Extradition Treaty whereby there is no obligation on the U.S. comparable to the obligation on Ireland under Article VIII, paragraph 4, to  provide a statement of facts in the appropriate form setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it, if the U.S were under that obligation, the material I have just described would, in my view, be sufficient to meet that prima facie case test.

iv.      extradition not prohibited under Part II

68.     Under Part II of the Act of 1965, the basic conditions for extradition for a criminal offence are those of correspondence (or 'double criminality') and minimum gravity, as each is defined in s. 10 of the Act.

69.     Under both s. 10(1) and s. 10(1A) of the Act of 1965, extradition can be granted only in respect of an offence which is punishable both under the laws of the requesting country and under the laws of the State. Section 10(3) stipulates that, for the purpose of the section, 'an offence punishable under the laws of the State' means either: (a) an act that, if committed in the State on the day on which the request for extradition is made, would constitute an offence; or (b) in the case of an offence under the law of the requesting country consisting of the commission of one or more acts including any acts committed in the State, such one or more acts being acts that, if committed in the State on the day on which the act concerned was committed or alleged to have been committed would constitute an offence.  That is the requirement of correspondence or double criminality.

70.     The well-established test for correspondence in Irish law is whether the alleged acts of the person sought - as set out in the extradition request, supporting documents, and evidence - would constitute an offence in this jurisdiction: Attorney General v Dyer [2004] 1 IR 40 (per Fennelly J at 45-50); Attorney General v Hilton [2005] 2 IR 374 (per Denham J at 380). 

71.     Under s. 10(1), the offence must be one that is 'punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty'. However, s. 10(1) is expressed to be subject to s. 10(1A), which provides that extradition to a requesting country that is a Convention Country is subject to the less stringent requirement that the offence is one subject to the same minimum punishment of imprisonment for at least one year under the laws of the requesting country but need only be punishable under the laws of the State by imprisonment for a maximum period of not less than six months or by a more severe penalty.  So, that is the requirement of minimum gravity.

72.     I have already expressed my understanding that the USA is a Convention country (see para. 32 above).  Nevertheless, for the avoidance of doubt, I will approach the issue of minimum gravity on the basis of the more stringent requirement under s. 10(1).

73.     The AG submits that the acts alleged to constitute the first offence correspond to the offence of conspiracy to commit a serious offence, contrary to s. 71(1)(a) of the Criminal Justice Act 2006.  That offence is committed when a person conspires, whether in the State or elsewhere, with one or more persons, to do an act in the State that constitutes a serious offence.  Thus, the AG submits that a conspiracy entered into in Ukraine or anywhere else in the world to do an Act in the State that constitutes a serious offence is a conspiracy offence, contrary to s. 71(1)(a) of the 2006 Act.  Under s. 70 of that Act, a 'serious offence' is defined as one for which a person may be punished by imprisonment of four years or more.  The AG further submits that the acts alleged to have been done in the U.S. as part of the first offence of conspiracy would constitute several different serious offences if done in the State.  Those offences are:

(a)     unlawful interference with an information system, contrary to s. 3 of the Criminal Justice (Offences Relating to Information) Act 2017, punishable by up 10 years imprisonment;

(b)     unlawful interference with data, contrary to s. 4 of that Act, punishable by up to 5 years imprisonment;

(c)     unlawful use of a computer, contrary to s. 9 of the Criminal Justice (Theft and Fraud Offences) Act 2001, punishable by up to 10 years imprisonment; and

(d)     blackmail, extortion or demanding money with menaces, contrary to s. 17 of the Criminal Justice (Public Order) Act 1994, punishable by up to 14 years imprisonment.

74.     The AG submits that the acts alleged to constitute the second offence, comprising, as they are alleged to do, not only a conspiracy to defraud ransomware victims but also the accomplished transmission of communications, writings or signals for that purpose, would, if carried out in the State, constitute the offence of making a gain or causing a loss by deception, contrary to s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 punishable by up to 5 years imprisonment. That offence is committed where a person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing any act.  Under s. 2(2) of the Act of 2001, a person deceives for the purposes of the Act if he or she, among other things, (a) creates or reinforces a false impression, including a false impression as to law, value or intention or other state of mind, or (b) prevents another person from acquiring information which would affect that person's judgement of a transaction.

75.     Alternatively, the AG submits that the acts alleged to constitute the second offence would constitute the still extant common law offence of conspiracy to defraud, punishable as such by up to life imprisonment; Minister for Justice, Equality and Law Reform v Fallon (aka Ó Fallúin) [2005] IEHC 323, (Unreported, High Court (Finlay Geoghegan J), 20 October 2005).

76.     While the respondent put the AG on strict proof of correspondence, he did not join issue with any of the submissions I have just summarised.  In my view, those submissions are well founded and, hence, I am satisfied that correspondence is made out for both the first and second offence in the extradition request.

77.     On minimum gravity, the position is as follows.  As appears from the relevant averments at paragraphs 12 and 13 in the first Phillips affidavit and in the text of the relevant statutes exhibited to it, the maximum penalty for a violation of 18 USC 371, the first offence charged in the indictment against the respondent, is a term of imprisonment of five years and $250,000 fine, and the maximum penalty for a violation of 18 USC 1349, the second offence charged in the indictment, is a term of imprisonment of twenty years and a $250,000 fine.  Each of the offences under the law of the State for which correspondence has been made out for each of the two offences for which extradition is requested is, as I have already noted, punishable under the laws of the State for a maximum period of at least one year or by a more severe penalty. Hence, I am satisfied that the minimum gravity requirement is made out for both the first and second offence in the extradition request.

78.     Of course, Part II of the Act of 1965 contains a number of other restrictions and prohibitions on extradition that may arise in a range of specified circumstances.  The respondent submits that one such restriction does arise in this case - the prohibition under s. 11 on extradition for an offence which is a political offence, or an offence connected with a political offence.  For convenience, I propose to deal with that submission in the relevant part of the next section of this judgment on the respondent's objections to extradition.

79.     Thus, leaving over for the time being the issue of whether extradition is prohibited by the political offence exception under s. 11 of the Act of 1965, I am otherwise satisfied that the extradition of the respondent is not prohibited by Part II of the Act or by the relevant extradition provisions.

The respondent's objections to extradition

80.     The cognisable objections to extradition raised by the respondent in his points of objection and supplemental issues paper fall 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.

81.     In substance, the respondent advances his breach of fundamental rights arguments under the following heads:

(a)     His extradition would be a disproportionate interference with his right to family and private life under Article 41 of the Constitution and Article 8 of the ECHR ('the right to family life objection').

(b)     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 would be 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 ('the refoulement objection')

(c)     His extradition would expose him to a real risk of being subjected to a breach of his right to a trial in due course of law under Article 38 of the Constitution and to the flagrant denial of his right to a fair trial under Article 6 of the ECHR, through the risk of being subjected to a sentencing procedure in US federal court whereby the sentencing judge is obliged to take into account uncharged conduct and, indeed, acquitted conduct in imposing sentence ('the flagrant denial of justice objection').

(d)     His extradition would expose him to a real risk of being incarcerated in the USA in prison conditions that 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 ('the prison conditions objection').

82.     The respondent's abuse of process objection is less focussed and, hence, more difficult to summarise.  In broad terms, it appears to be the applicant's position that, because of his role as a lawyer in Ukraine in protecting the rights of his clients there (or elsewhere), he has been unlawfully targeted by both the US and the Irish authorities; subjected to deliberate ill-treatment and humiliation in the course of his arrest; subjected to the unlawful seizure of his confidential personal data; unlawfully deprived of material that would establish his innocence; and unlawfully subjected to the interception and retention of his private correspondence while in custody.  It appears to be in the context of these claims that the respondent raises the additional objection that his extradition is prohibited under s. 11 of the Act of 1965 because the offences in the request are political offences. It may be that the respondent wishes to rely on the equivalent prohibition on extradition under s. 11(2) of the Act that applies where there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting a person on account of his race, religion, nationality or political opinion or that the person's position may be prejudiced for any of those reasons ('the abuse of process objection').

Fundamental rights objections in cases under Part II of the Act of 1965

83.     The entitlement of all persons appearing before the Courts of Ireland to the protection of their rights under the Constitution and ECHR extends to extradition proceedings under the Act of 1965; see, for example, Ellis v O'Dea [1989] IR 530 (per Walsh J at 537).

84.     There is a default presumption in extradition cases that that the requesting country will act in good faith and will respect the fundamental rights of the requested person should extradition occur, albeit one that is weaker and more easily rebutted than that which arises under the European Arrest Warrant system; Attorney General v O'Gara [2012] IEHC 179, (Unreported, High Court (Edwards J), 1 May 2012) (at para. 10.3).

85.     That is because the principle of mutual trust and confidence is at the heart of bilateral and multilateral extradition arrangements, as an expression of the sovereign power of the states concerned.  Such arrangements imply at least some level of mutual political trust and, at the judicial level, confidence in the legal systems of the co-operating states.  The making of an extradition arrangement presupposes that the Government and the Oireachtas are satisfied, amongst other things, that a person being extradited to another State with which Ireland has such an arrangement will not have his constitutional (or ECHR) rights impaired : Minister for Justice, Equality and Law Reform v Stapleton [2008] 1 IR 669 (at 688-9).  

i.        the right to family life objection

86.     The respondent submits that his extradition would represent a disproportionate interference with his family rights under Article 41 of the Constitution or his right to respect for his private and family life under Article 8 of the ECHR, or both. 

87.     In considering this objection, I derive great assistance from the judgment of the Court of Appeal (per Donnelly J) in Minister for Justice and Equality v D.E. [2021] IECA 188, (Unreported, Court of Appeal, 1 July 2021) ('D.E.') (at para. 67).  That was a case that dealt with the appropriate approach to an Article 8 objection in EAW proceedings, but I am satisfied that the principles it sets out are also applicable, mutatis mutandis, to proceedings under Part II of the Act of 1965. Thus, I conclude that the applicable principles are as follows:

(i)      Extradition presupposes an impact on the personal or family life of a requested person.  Having regard to Article 8(2), extradition carried out pursuant to legislation is in principle an acceptable interference with the right to respect for those rights; Minister for Justice and Equality v Ostrowski [2013] 4 IR 206 (' Ostrowski'); Minister for Justice and Equality v Vestartas [2020] IESC 12 (' Vestartas'); and Minister for Justice and Equality v JAT (No. 2) [2016] 2 ILRM 262 (' JAT (No. 2)').

(ii)      When faced with an Article 8 objection to extradition, the function of the court is to decide if the extradition is incompatible with the State's obligations under the ECHR. That requires a very high threshold.  Any inquiry must bear in mind that s. 9 of the Act of 1965 requires the surrender of a person in accordance with the provisions of that Act and that there is a default presumption that the requesting country will act in good faith and will respect the fundamental rights of the requested person should extradition occur.

(iii)     The evidential burden of proving incompatibility lies on the requested person; Rettinger and Vestartas.

(iv)     The assessment of the claimed impact of surrender on personal and family rights must be a rigorous one; Rettinger and JAT (No. 2).

(v)     The evidence must be cogent and must reach the level of incompatibility; Vestartas.

(vi)     Exceptionality is not the test for incompatibility, but it will only be in a truly exceptional case that surrender will be found to be incompatible with the State's obligations under Article 8 of the Convention; JAT (No. 2) and Vestartas.

(vii)    For an Article 8 objection to succeed, there must be clear cogent evidence sufficient to rebut the default presumption that the requesting country will act in good faith and will respect the fundamental rights of the requested person should extradition occur.

(viii)   No elaborate factual analysis or weighing of matters is necessary unless it is clear that the facts come close to a case which would be truly exceptional in nature thereby engaging the possibility that surrender may be incompatible with the States obligations under the Convention; JAT (No. 2).

(ix)     The requirement that the circumstances must be shown to render the order for surrender incompatible with the State's obligations under Article 8 necessitates that the incursion into the private and family rights referred to in Article 8(1) is such as to supervene the limitations on the right contained in Article 8(2) and over the public interest thresholds set by the Act of 1965 itself.

(x)     Where the facts, assessed as set out above, come close to being truly exceptional in nature thereby engaging the possibility that surrender might be incompatible with the State's obligations, the Court will engage in a proportionality test of whether the high public interest in the prevention of disorder and crime (and the protection of the rights of others) is overridden by the personal and family circumstances (taken where appropriate with all of the cumulative circumstances) of the requested person.  That is a case-specific analysis which will be required in very few cases.

88.     The evidence concerning the respondent's family circumstances is broadly as follows. The respondent, whose date of birth is 15 April 1982, is 42 years old and a citizen of Ukraine. He met his wife there in 2009 and they married in 2013.  They have one child, a son born on 28 April 2014. The family lived in the city of Kherson in Ukraine.  After the Russian invasion of Ukraine, the respondent's wife and child arrived in Ireland on 25 July 2022 and were granted temporary protection here.  From that date until the present, they have lived in an apartment in Cork City. The respondent joined his wife and child in September 2022 and was granted temporary protection on 21 September 2022 (first, second and third Lytvynenko affidavits, and wife's first affidavit). 

89.     The respondent avers that he suffered a serious fracture of his femur in 2002 and a serious head injury in 2008 and has exhibited certain medical records in that regard.  The respondent's mother, who continues to reside in Ukraine, is a pensioner in poor health, having suffered a stroke (second Lytvynenko affidavit). 

90.     The respondent avers that his father, who had continued to live in Ukraine, was diagnosed with a hepatocellular carcinoma in September 2023 and died in June 2024 (second and fourth Lytvynenko affidavits).

91.     The respondent's wife avers that their son has chronic adenoiditis and that his condition benefits from a mild climate and proximity to the sea.  The child also has an astigmatism and a lipoma on his right hand. The respondent's wife has suffered health problems, such as a bout of pneumonia and unspecified gynaecological problems, in the past. The respondent suffers from coronary heart disease. The respondent plays an active and extensive part in his son's life.  The respondent's arrest has had an adverse psychological effect on his son. The respondent's wife envisages that it may be difficult for her and their son to obtain a visa to enter the USA; that travel to the USA would be expensive; that she may lose her temporary protection status on U.S. territory; and that she may not be able to obtain housing or to engage in work there (wife's second affidavit).   

92.     The respondent relies on the Allenbaugh Declaration. Based on his expertise as a lawyer and criminal sentencing researcher and considering the extradition request and accompanying documents in light of that expertise, Mr Allenbaugh expresses the opinion that, on his reading - and theoretical application - of the United States Sentencing Guidelines ('the Guidelines'), the respondent will receive a sentence in excess of 10 years and that, based upon the findings in a particular sociological study ('the Patterson Paper'),  the respondent's life expectancy as a prisoner in custody is one of 13 years.

93.     In response, the AG relies on the contents of the third Phillips affidavit.  In addressing the theoretical sentence point, Mr Phillips avers that: since the Guidelines do not bind a sentencing court; since a sentencing court must consider a multitude of factors; and since, as Mr Allenbaugh acknowledges, sentencing courts often impose sentences below the Guidelines range, a sentencing court is unlikely to impose sentence in accordance with Mr Allenbaugh's theory.  And in addressing the life expectancy point, Mr Phillips avers that the Patterson paper recognises its own limitations in that, most notably, it was a study of parolee mortality in the State of New York, rather than of inmate mortality in the federal prison system and, moreover, it acknowledged the significant impact of socioeconomic status, whereby high school graduates had lower odds of death than persons who were not. 

 

94.     Having carefully considered the evidence relied upon by the respondent, I conclude that it does not reach the high threshold necessary to demonstrate that it is close to the margin where surrender might be said to be incompatible with the State's obligations to respect personal and family life.

95.     For that reason, this objection fails.

ii.       the refoulement objection

96.     The respondent has been granted temporary protection in the State under s. 60 of the International Protection Act 2015 but has not applied for international protection in the State under s. 16 of that Act.  Nonetheless, he avers to an intention to do so if and when his temporary protection comes to an end.  As a potential international protection applicant, he submits that the State has failed to comply with its procedural duty under Article 3 of the ECHR to assess the risk that the respondent will be treated contrary to that provision if extradited to the USA, and specifically the risk of the respondent's subsequent refoulement to Ukraine in that event; Ilias and Ahmed v Hungary, App no 47287/15 (ECtHR, 21 November 2019).

97.     Without conceding the respondent's entitlement to equate his position as a potential refugee status applicant with that of an actual refugee status applicant within the State, and although there does not seem to be any evidence of a risk that the USA would not honour the non-refoulement principle in international law, the AG invited the court to exercise its inherent jurisdiction to seek specific evidence on the point from the requesting country and the court did so. Mr Phillips provided that evidence in a letter dated 16 September 2024. 

98.     In that letter, Mr Phillips confirms in material part that:

          'The ... question posed is, if Mr Lytvynenko is extradited to the United States, and he is either acquitted or convicted and then serves a sentence, and it is thereafter proposed to deport or remove him from the United States to a particular country, whether he will have access to an appropriate procedure to determine, on the merits, that he should not be deported/removed to that country because there are substantial grounds for believing that Mr Lytvynenko would be subject to torture or other inhuman or degrading treatment or punishment if so deported/removed to that country.

          To my knowledge, Mr Lytvynenko does not possess a valid document authorizing him to be present in the United States.  Thus, if Mr Lytvynenko is released from criminal custody, he will then be deemed to be an applicant for admission to the United States.  As to applicants for admission, the Department of Homeland Security has discretion whether to initiate either expedited removal proceedings under [8 USC 1225(b)(1)] or removal proceedings before an immigration judge under [8 USC 1229a].  Either of those proceedings would allow Mr Lytvynenko to make a claim for relief from removal to a designated country or countries based upon a credible fear of return on account of a protected ground, 8 USC § 1158, 8 USC § 1231(b)(3), or a fear of torture, 8 CFR §§ 208.16-208.18.'

99.     On the basis of that evidence, the respondent has failed to persuade me 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.

100.   Hence, this objection fails.

iii.      the flagrant denial of justice objection

101.   The respondent submits that his extradition would expose him to a real risk of being subjected to a breach of his right to a trial in due course of law under Article 38 of the Constitution and to the flagrant denial of his right to a fair trial under Article 6 of the ECHR, through the risk of being subjected to a sentencing procedure in US federal court whereby the sentencing judge is obliged to take into account uncharged and dismissed conduct and, indeed, acquitted conduct established under the preponderance of the evidence standard in imposing sentence.

102.   In advancing this submission, the respondent relies on the averments set out in the Chen affidavit.  Based on her expertise as an experienced criminal defence lawyer, Ms Chen avers in broad summary as follows.  The maximum sentence that can be imposed on the respondent is five years for the first offence and twenty years for the second offence.  Those sentences may be imposed consecutively or concurrently so that the maximum sentence that could be imposed on the respondent is one of 25 years' imprisonment. In addressing the sentencing process in federal court, Ms Chen draws particular attention to a number of features.  It is governed by the Guidelines, although since 2005 they have been advisory, not mandatory. Nonetheless, federal sentencing is not limited to offences of which a defendant is charged in an indictment and convicted by a jury but, rather, permits, and in some cases demands, that the sentence be calculated based on uncharged or dismissed conduct, and even conduct of which a defendant has been acquitted.

103.   In response to the Chen affidavit, the AG relies in part on the averments set out in the second Phillips affidavit.  Mr Phillips draws attention to various other aspects of federal sentencing procedure.  For example, he avers that, of the 4,896 defendants sentenced in 2023 under the part of the Guidelines most likely applicable to the offences alleged against the respondent, only 1,818 defendants received a sentence within the Guidelines range; the average federal sentence length for fraud, theft and embezzlement cases was 22 months; and the median sentence was 12 months.  In addition, he avers that the respondent may be eligible for credit against any term of imprisonment equal to the time he has been detained in Ireland based upon the extradition request (already more than 18 months).

104.   It is also apposite to note that in the third Phillips affidavit, Mr Phillips avers that, on 17 April 2024, the United States Sentencing Commission voted unanimously to prohibit conduct for which a person was acquitted from being used in calculating a Guidelines range.

105.   Precisely the same argument as the one that the respondent now raises was considered and rejected by, first, the High Court and then, the Court of Appeal in Attorney General v Marques [2016] IECA 374, (Unreported, Court of Appeal (Peart, Birmingham and Sheehan JJ), 12 December 2016).

106.   In Marques, the Court of Appeal pointed out (at para. 42) that the extent to which a sentencing judge may take account of uncharged conduct, or at least conduct beyond the facts of the offence stated for the purpose of the extradition request, is based on speculation that only the facts contained within the request will be proved at trial, which cannot be assumed.  The Court of Appeal observed (at para. 48) that there is nothing objectionable about the prospect that if extradited and convicted of the extradition offences, other matters comprising the general circumstances in which the offences were committed may be taken into account in sentencing.

107.   The Court of Appeal noted that the threshold for finding a breach of fair trial rights under Article 6 of the ECHR as a bar to surrender in an extradition case is one of exceptionality and of an apprehended flagrant denial of justice; Soering v United Kingdom, App no 14038/88, (ECtHR, 7 July 1989). 

108.   The Court of Appeal went on (at para. 80) to cite the following passage from the judgment of the European Court of Human Rights in Othman (Abu Qatada) v UK, App no 8139/09, (ECtHR, 17 January 2012) (at para. 260):

          'It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6.  This fact ... serves to underline the Court's view that "flagrant denial of justice" is a stringent test of unfairness.  A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself.  What is a required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.'

109.   And, in considering the test for a breach of constitutional due process norms in an extradition case, the Court of Appeal pointed out that, in Minister for Justice v Brennan [2007] 3 IR 732 (at 744), Murray CJ had posited a requirement for 'egregious circumstances, such as a clearly established and fundamental defect in the system of justice in the requesting state, where a refusal of an application for surrender may be necessary to protect such rights.' 

110.   On the material issue, the Court of Appeal concluded (at para. 62):

          'But I am also satisfied, in accordance with the authorities to which the Court has been referred, from some of which I have just quoted, that the fact that the sentencing process in the United States differs, even materially, from that which is in place in this jurisdiction, is not a ground for refusing to extradite the appellant unless the sentencing regime there reaches the very high threshold of being such an egregious breach of fundamental rights that it constitutes a flagrant denial of justice. Where the matters which can be taken into account are similar to what may be taken into account here as being part of the general background or surrounding circumstances in which the offences were committed, it cannot be said that this is such an egregious matter that extradition should be refused.  Nor can it be said that the fact that these matters may be proven to a standard below reasonable doubt, or where hearsay evidence may be received, renders that regime egregious or so exceptional that it all constitutes a flagrant denial of justice.  It is different to what would occur here, and would even be impermissible here in the constitutional sense, but, as has been explained in the jurisprudence referred to above, these differences are insufficient in themselves to mandate a refusal of extradition.'

111.   For those reasons, I reject this ground of objection.

iv.      the prison conditions objection

112.   Although the respondent raised this objection in his points of objection, it was acknowledged on his behalf in both written and oral submissions that there was no evidential basis on which he could pursue it because he does not know where - and, hence, in what conditions - he will be detained if extradited either pre-trial or post-conviction.

v.       the abuse of process objection

113.   It is well-settled that, in rare and exceptional cases, surrender would offend due process and interfere with the rights of a respondent to such an extent that it must be refused; Minister for Justice v JAT (No. 2) [2016] 2 ILRM 262 (per O'Donnell J at 287).  The courts must be astute to detect and prevent improper or mala fide conduct (ibid. at 288).  Where a true abuse of process is established, it would normally follow as a matter of logic that the proceedings should not be entertained and should normally be struck out.

114.   In this case the respondent appears to be submitting, in substance, that the extradition proceedings against him are an abuse of process and a sham.  In that regard, he relies on his own sworn evidence in the fourth Lytvynenko affidavit (that he prepared as a litigant in person) to the following effect:

          17. While still in Ukraine, I filed an official complaint against the English company "Bitmex", which was trying to leave the European Union for USA.

          18. Also in August-September 2022 on the forums, while examining people's testimonies I came to the conclusion that the rights were violated by FBI employees.

          19. On the same forums and these are the official forums of the teglegram chat of the company "Bitmex", I wrote after studying the activities of this company and actions of the FBI, that the FBI does not have a single chance to win a case in court in the EU zone and all actions on illegal charges, confiscation of money without a court sanction, other actions are illegal.

          20. After that I arrived in Ireland where I continued to provide legal assistance to old clients and prepare materials against the company "Bitmex".'

115.   As I have already noted, it appears to be the applicant's position that, because of his role as a lawyer in Ukraine in protecting the rights of his clients there (or elsewhere), he has been unlawfully targeted by both the US and the Irish authorities; subjected to deliberate ill-treatment and humiliation in the course of his arrest; subjected to the unlawful seizure of his confidential personal data and of material subject to legal professional - i.e. attorney-client - privilege; unlawfully deprived of material that would establish his innocence; and unlawfully subjected to the interception and retention of his private or professional correspondence while in custody. 

116.   As I have also noted earlier in this judgment, it appears to be in the context of these claims that the respondent raises the additional objection that his extradition is prohibited under s. 11 of the Act of 1965 because the offences in the request are political offences. It may be that the respondent wishes to rely on the equivalent prohibition on extradition under s. 11(2) of the Act that applies where there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting a person on account of his race, religion, nationality or political opinion or that the person's position may be prejudiced for any of those reasons.

117.   However, beyond the bare averments and bald assertions just described, the respondent has provided no evidence whatsoever in support of these claims and no further information concerning them.

118.   As a litigant in person, the respondent invokes the text of the document Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba on 7 September 1990, and the text of the draft resolution and draft recommendation on The principles and guarantees of advocates adopted by the Council of Europe Parliamentary Assembly Committee on Legal Affairs and Human Rights in support of his objection to extradition.

119.   For completeness I should add that, also while acting as a litigant in person, the respondent submitted that the Court should have regard to the following three specific judgments of the European Court of Human Rights:

(a)     Toniolo v San Marino and Italy, App no 44583/10, (ECtHR, 26 June 2012).  In that case, the ECtHR found there had been a breach of Article 5§1(f) of the ECHR because of the failure of San Marino to provide a procedure that was sufficiently accessible, precise and foreseeable in its application to avoid the risk of arbitrary detention pending extradition.  No claim of that sort arises in the circumstances of this case.

(b)     Čalovskis v Latvia, App no 22205/13, (ECtHR, 15 December 2014).  In that case, the ECtHR found that there had been a breach of Article 5§1 of the ECHR because the detention of the applicant pending extradition had not been effected 'in accordance with a procedure prescribed by law', and a breach of Article 5§ 4 of the ECHR because throughout the term of the applicant's detention he did not have access to a procedure whereby the lawfulness of that detention could be examined by a court.  No claim of that sort arises in the circumstances of this case either.

(c)     Bivolaru and Moldovan v France, App nos 40324/16 and 12623/17, (ECtHR, 25 March 2021). In that case, the ECtHR found that there had been a breach of Article 3 of the ECHR because the applicant had been surrendered to Romania in circumstances where the executing judicial authority had before it a sufficiently sound basis to establish a real risk to the applicant of inhuman and degrading treatment on account of the prison conditions in which he was likely to be held there. Nor does any claim of that sort arise in the circumstances of this case.

120.   In response to the respondent's various claims about the circumstances of his arrest and of the search of his apartment and the seizure of various items there, the AG relies on the averments contained in the Dunne and Ryan affidavits.

121.   In his affidavit, retired Detective Garda Malachy Dunne avers at length to the circumstances in which he executed the arrest warrant for the respondent at the respondent's apartment on 6 July 2023, conveyed him to the Bridewell Garda Station in Cork to be processed as an arrested person, and then conveyed him to the High Court in Dublin later the same day.  Detective Garda Dunne denies any allegation that either he or any other Garda present at the time of the respondent's arrest ill-treated the respondent in any way. Detective Garda Dunne exhibits the Garda Síochána Custody Record for the respondent's detention on that date.

122.   In his affidavit, Detective Sergeant Michael Ryan avers at length to the circumstances in which he executed two search warrants on 6 July 2023: one for the respondent's apartment; and one for the common areas in the respondent's apartment building.  Each of those search warrants had issued under s. 74 of the Criminal Justice (Mutual Assistance) Act 2008.  Each authorised Detective Sergeant Ryan to be accompanied by other members or persons as he thought necessary for the purpose of the search.  Detective Sergeant Ryan exhibits each of those search warrants.  Detective Sergeant Ryan denies the allegation that evidence of the respondent's innocence was destroyed during the search.  The purpose of the search was the retrieval of evidence, and the persons present took steps, in accordance with their training and procedures, to protect the integrity of the electronic items they were seizing.

123.   In accordance with normal practice, Detective Sergeant Ryan prepared and has retained an exhibits chart of all of the items seized during the search.  That exhibits chart is exhibited to his affidavit. All of the items seized have been transmitted to the United States in accordance with the provisions of the Act of 2008, although copies of the data extractions carried out by his colleagues from electronic devices have been retained on USB storage drives for the purpose of providing any further assistance required by the appropriate US authorities. Detective Sergeant Ryan denies any allegation that he subjected the respondent to psychological pressure of any sort at any time

124.   I cannot resolve the conflict between the averments of the respondent and those of the relevant members of the Garda Síochána, despite the more obvious cogency of the latter.

125.   However, for the purpose of the present judgment, it is only necessary to conclude, as I have done, that the respondent's bare averments fall well short of establishing - or, indeed, putting the court on any further inquiry concerning - 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.  And I conclude further that the respondent has failed by a very wide margin to establish that his extradition is prohibited under s. 11 of the Act of 1965, either because the offences in the request are political offences or because there are substantial (or, indeed, any) grounds for believing that a request for extradition for an ordinary criminal offence has 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.

126.   For that reason, this last objection must also fail.

Conclusion

127.   It follows that, having due regard to the obligation to extradite under s. 9 of the Act of 1965, I will make an order under s. 29(1) of the Act of 1965 committing the respondent to a prison to await the order of the Minister for his extradition.