FOURTH SECTION

DECISION

Application no . 13566/13 Kęstutis MARTUZEVIČIUS against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 24 March 2015 as a Chamber composed of:

Guido Raimondi, President , George Nicolaou, Ledi Bianku, Nona Tsotsoria, Paul Mahoney, Krzysztof Wojtyczek, Faris Vehabović, judges , and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 22 February 2013 ,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The case originated in an application (no. 13566/13 ) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Kęstutis Martuzevičius (“the applicant”), on 22 February 2013 .

2 . T he applicant was represented by Mr s Baba of Central Law Practice, a lawyer practising in Wembley . The United Kingdom Government (“the Government”) wer e represented by their Agent, Ms A. McLeod of the Foreign & Commonwealth Office . By letter dated 27 June 2013 the Lithuanian Government were asked to notify the Court by 14 August 2013 if they intended to intervene. They did not reply to this letter.

3. On 20 June 2013 the application was communicated to the Government.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. The applicant, a Lithuanian national born in 1962, 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 committe d twenty-two dangerous felonies .

6 . The applicant was arrested pursuant to the EAW in June 2011 and detained in HMP Belmarsh.

7 . 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.

8 . In August 2012 a doctor at HMP Belmarsh 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 psychiatric report prepared on 6 November 2012 recorded that he 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.

9. However, t he authorities at Broadmoor did not accept that he should be transferred there. The applicant ’ s legal representatives subsequently obtained a report from another p sychiatrist, who 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. The psychiatrist expressed some surprise that the applicant ’ s transfer to Broadmoor had not been granted and suggested that the refusal decision from Broadmoor should be appealed.

10 . 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.

11 . 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.

12. The High Court ’ s consideration of how the applicant ’ s 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.”

13 . A psychiatric report dated 6 January 2013 recorded that the applicant was suffering from a serious mental illness which required treatment in hospital and which he could not explain by malingering. 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.

14. 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.

15 . 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 .

16. 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.

17 . 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.

18 . 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?”

19 . 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.

20. Following communication of the applicant ’ s case on 20 June 2013 , t he Prison Service re-referred the applicant to Broadmoor as there had been no change in his mental health condition.

21. On 15 January 2014 the applicant ’ s representatives notified the Court that he had been admitted to Broadmoor.

22. However, the applicant ’ s mental health condition subsequently improved significantly and on 13 June 2014 his transfer was ordered from Broadmoor Hospital to HMP Belmarsh. The Government also obtained a number of assurances from the Lithuanian Government: first, given the length of time he had spent in remand in the United Kingdom, there was a very real prospect that upon his return to Lithuania the applicant would be released during the pre-trial investigation stage; secondly, if he were to be remanded in custody and his health were to deteriorate, he would be hospitalised immediately in the psychiatric department of the central prison hospital; thirdly, if he were to remain in an ordinary custodial facility, he would be held in a prison which had psychiatric services available; fourthly, if his fitness to plead were to be in issue, he would be subject to forensic psychiatric examination; fifthly, there would be provision for compulsory or voluntary hospitalisation for treatment of the applicant ’ s mental health; and finally, if the applicant were convicted and sentenced and continued to require specialist psychiatric care, he would be sent to a facility specifically adapted for convicted persons with special needs.

B. Relevant domestic law

The Extradition Act 2003

23 . 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.

24 . 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 s whose extradition is requested is such that it would be unjust or oppressive to extradite them, then the judge must discharge them.

25 . If the judge at the extradition hearing orders the person ’ s extradition, s ection 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

26. The applicant complained that his extradition would breach Article 3 of the Convention on account of his serious mental health condition, and that the domestic courts ’ failure to consider his ill-health in the context of the extradition proceedings breached Article 6 § 1 of the Convention.

THE LAW

A. Article 3

27. In a letter dated 13 February 2015 the applicant ’ s representative conceded that his return to Lithuania would no longer be in breach of Article 3 of the Convention.

28. Nevertheless, the applicant did not agree to the strike out of his complaint because he believed that he was also denied access to effective treatment for his mental health condition in the United Kingdom and that this constituted a separate breach of Article 3 of the Convention. However, the Court observes that the applicant did not raise this complaint in his application form and it was not communicated to the Government. In fact, it was raised for the first time in the applicant ’ s reply to the Government ’ s observations. The Court cannot therefore entertain this complaint in the present case.

29. Consequently, in view of the developments following communication of the present case and the applicant ’ s concession that his extradition would not breach Article 3 of the Convention, the Court considers that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

30. In light of this finding, the Court considers it appropriate to discontinue the application of Rule 39 of the Rules of Court in the present case .

B. Article 6

31. The applicant also argued that there was a breach of Article 6 § 1 of the Convention because he had not been given a proper opportunity to argue his ill-health in the course of the extradition proceedings.

32. However, as is well-established in the Court ’ s case-law, decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant ’ s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X; Penafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002; Sardinas Albo v. Italy (dec .), no. 56271/00, ECHR 2004-I and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 81 - 83 ECHR 2005 ‑ I ).

33. This being so , Article 6 § 1 of the Convention is not applicable in the present case.

For these reasons, the Court, unanimously,

Declares the application inadmissible .

Done in English and notified in writing on 16 April 2015 .

             Françoise Elens-Passos Guido Raimondi Registrar President