Zahanckauskas v Prosecutor Generals Office of the Republic of Lithuania

MR JUSTICE SAUNDERS: I am asked to re-open the case of Zahanckauskas against the Republic of Lithuania.

I heard this appeal this morning, the appellant being unrepresented. His arguments were that to send him back to Lithuania would involve a breach of Article 3 and Article 8. The Article 3 [argument] was on the basis that he owed a lot of money to some people in Lithuania, a criminal gang, and that he was likely to suffer serious harm if he went back to Lithuania. On the Article 8 point the basis was that he has a partner with him in the jurisdiction who is pregnant and expecting his baby.

The reason why I am asked to set aside my decision and allow the case to be re-opened is that in fact an application for legal aid had been made on his behalf which I am told would be granted. Counsel was in the building but through a lack of communication - which is no fault of the appellant or anyone as far as I know - it was not brought to my attention that anyone was here to represent him and no one signed in before the appeal was heard. The position now is that the appellant is not here. There is no interpreter, and the case cannot be heard with counsel. I have of course disposed of the matter. I would be entitled to order the case to be re-opened in accordance with Part 52.17 (and I hope I have the right reference) on the basis it was necessary to do so to avoid real injustice. It seems to me that that must involve some - at least - basic consideration of the merits of the case to investigate whether, if legal advice were granted to him, there is a realistic prospect that something would come out which would change the decision which had been made.

As is pointed out by Mr Isaacs, the whole essence of extradition is that it should be dealt with quickly. This appellant was represented before the magistrate. He has had the benefit of legal advice. One has to assume that all things have been properly looked at. Of course, there always remains a possibility that looked at by yet another lawyer something may occur to that lawyer which did not occur to the previous ones. That is really not a basis on which I can find, it seems to me, that it is necessary to re-open the case to avoid real injustice. Similarly, Miss Draycott makes the perfectly balanced point that he will not go away thinking that justice has been done to him if he does not have his own lawyer who can explain to him what happened. I accept that in normal circumstances that is what should happen.

However having heard the facts of the case, having given him an opportunity to say what he wanted on a factual basis before me, I am quite satisfied that there is nothing that has been put before me which can give me any indication that, given the benefit of now having representation and a lawyer to go through the papers with him, something will emerge which has not been ventilated already either in the Magistrates' Court or in front of me. While it would have been of course more desirable for him to have been represented at the hearing this morning, in my judgment it is not necessary, to avoid real injustice, that the case should be re-opened and put off.

It seems to me that within the terms of the Civil Procedure Rules it simply does not merit re-opening.

I am grateful for you coming back and doing your best, but I do not think it should be re-opened. Thank you both very much for coming back.