Selbach v Lithuania

LORD JUSTICE KENNEDY: On 8th July 2004 at Bow Street this applicant was committed to await the decision of the Secretary of State on a request for extradition by Lithuania. He now seeks an order of habeas corpus from this court on the basis that the course of investigations in Lithuania was such as to entitle him to say that on at least one occasion he had been the subject of an adjudication in his favour, or alternatively that the procedure was such that it would be an abuse of process to require him to return to Lithuania to face trial. We have had placed before us certain documents which show, in broad terms, the nature of the offence alleged and the course of investigations.

In December 1996, a woman, whose initials were EB, is alleged to have been raped by a number of men in a garden in Lithuania. In February 1998, according to the documentation before us, investigations began and it is clear from the record that this applicant was considered as a possible offender, or someone who was near to the scene. Indeed, it was considered that he may have owned the garden in which the offence took place.

He contends that on four separate occasions, over a period of time extending from February 1998 onwards, he was the subject of an investigation which came to an end with a dismissal. Mr Gersch, on his behalf, attaches some weight to the use of that word. There was, it seems, according to the record on each occasion, no sufficient material to enable the investigation to proceed, but nothing in the record suggests that the dismissal was by a court or a tribunal. Eventually after the fourth of those series of dismissals, on 9th April 2001, there came a time when the prosecution indictment was confirmed. Mr Caldwell, on behalf of the Government of Lithuania, submits that that carries with it the indication that that was the first occasion on which formal court proceedings had been instituted.

The applicant was then made subject to what is described as "a measure of suppression", which may loosely be interpreted as the equivalent of bail, and in breach of that on 15th October 2001 he left Lithuania and ultimately came to this country. On 9th November 2001, a warrant was issued in Lithuania and that is the background to the application made by the Government of Lithuania, on 23rd June 2003, for his extradition.

Mr Gersch submits that looking through the material which has been placed in front of us we should come to the conclusion that in this case this man is entitled to invoke one of the well-known principles in this area of the law. The principles are conveniently encapsulated in section 6(3) of the Extradition Act 1989, which provides that:

Try, as I will, looking at the material which is before us, I can find nothing to suggest that the enquiries in Lithuania were more than the prosecuting authority, over a period of time, investigating this alleged offence and from time to time discontinuing it for want of adequate material, before picking up the investigation again and continuing it once more. I see no evidence here of an adjudication of any kind on which, in this country, the applicant would be able to rely. Furthermore, I see nothing to indicate that the way in which the investigation proceeded could be regarded as an abuse of process. The fact that at some stage there is insufficient material and the investigator then decides that for a time, at least, he or she will not continue further, does not give any rights of any kind to the person against whom proceedings are ultimately brought.

Accordingly, in my judgment, nothing can be read into the word "dismissal" of the kind which Mr Gersch submits. There was here no, as I see it, evidence of an adjudication and accordingly I, for my part, can see no substance upon which the applicant could rely.

Mr Gersch invited our attention to the decision of this court in Okendeji v the Government of the Commonwealth of Australia [2005] EWHC 471 (Admin). In that case the situation was very different. It was clear there that the statutory provision in play in New South Wales involved a transference of the burden of proof. In this case there is nothing of that kind before this court. So far as the regulation of proceedings in Lithuania is concerned, Lithuania is a government with which Her Majesty's government has seen fit to enter into extradition arrangements.

In those circumstances, unless there is raised specifically before this court some reason to believe that if the applicant were to be extradited he would not receive a fair trial in that country, either generally or in relation to this specific matter, I see no reason why the Government of Lithuania, as a matter of course, should seek to prove in this court that proceedings in Lithuania would follow what might be described as a regular course. The burden of proof, in my judgment, in relation to a matter such as that, must unequivocally lie upon the applicant in the first place.

For those reasons I, for my part, am satisfied that there is no substance in this application and I would dismiss it.

MR JUSTICE CRANE: I agree.