Minister for Justice and Equality v Kacevicius [2019] IEHC 740 (31 October 2019)

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JUDGMENT of Mr. Justice Binchy delivered on the 31st day of October, 2019

1. This is the second judgment in these proceedings, the first having been delivered on 24th

May, 2019 (the “first judgment”) and both judgments should be read together. Having

considered the various objections to his surrender made on behalf of the respondent at

the hearing of this application, I formed the view that the respondent should be

surrendered to Lithuania for the purpose of serving the prison sentence imposed upon

him (see para. 62 of the first judgment) provided that the Lithuanian authorities could

address to my satisfaction the concerns raised by the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) as

regards the conditions in and management of two specific prisons in Lithuania namely,

Alytus and Marijampolė, or alternatively provide assurances that the respondent would

not be required to serve his sentence in either of those prisons. I adjourned the matter to

allow the applicant to liaise with the Lithuanian authorities in this regard.

2. Following upon that adjournment, the applicant wrote to the issuing judicial authority i.e.

Kaunas Regional Court by letter dated 6th June, 2019. The Ministry of Justice of the

Republic of Lithuania responded by letter dated 7th July, 2019. The matter then came

back before the Court on 16th October, 2019. It is apparent from the response of the

Ministry of Justice that it has taken the former of the two options referred to above i.e.

they have attempted to address the concerns raised by the CPT rather than to provide an

assurance that the respondent will not be required to serve his sentence in either of

3. Matters of concern as identified by the CPT in relation to those prisons were, inter alia,

inter-prisoner violence, excessive use of force by prison staff, overcrowding and poor

living conditions. These had all been described in a report of the CPT in 2014 (relating to

inspections carried out in 2012), and in a report dated 1st February, 2018 (relating to

inspections carried out in September 2016), in the latter of which the CPT observed that

the extent of inter-prisoner violence at Alytus and Marijampolė prisons had become even

4. The respondent swore an affidavit in opposition to this application in which he described

how he had been attacked by other prisoners on three separate occasions while

previously detained in a prison in Kaunas. In the first judgment, apart from affording the

issuing judicial authority the opportunity to provide further information and/or

assurances, I also afforded the respondent the opportunity to provide further information

in relation to those previous assaults. The respondent took the opportunity to file a

further affidavit dated 6th June, 2019. While he does not identify those who assaulted

him, he says that the three attacks upon him were carried out by members of a particular

gang known as the “Azuolai”, which he says has a significant presence across Lithuania.

He avers that to his knowledge, members or affiliates of this gang are likely to be found

in any prison in Lithuania. He avers that he was targeted by members of the Azuolai

because at the time, he had been associated with a rival gang, of which he says he is no

longer a member. Nonetheless he believes that he still remains a target because of his

past association and, moreover, it is not possible to protect him by placing him in any

particular prison in Lithuania, because the Azuolai gang are not concentrated in any one

prison. He also avers that the prison protection regime in Lithuania would not be

adequate and that he would still come into frequent contact with the general prison

5. In this letter, the Ministry of Justice states that since the 2016 CPT visit the total number

of inmates in Lithuanian prisons has been decreased by 14 percent, and that none of the

Lithuanian prisons are overcrowded. Furthermore, in Marijampolė prison, a new block has

been constructed providing 87 cell-type living facilities, and in 2017, construction of a

new block at Alytus prison started, and will provide 199 cell-type living facilities when

6. The letter states that all inmates are provided with single bed and other supplementary

furniture and minimum living space (excluding parts of the premises shared such as

7. The letter describes how prisoners are provided with adequate food, medical and dental

care and are allowed to walk in fresh air anything from two to four hours per day, as well

as to participate in other outdoor and recreational activities. The letter further states that

prison staff do not tolerate any forms of violence or inappropriate treatment amongst

8. Aside from all of the above information, at the reconvened hearing the Court was

provided with a further CPT report dated 25th June, 2019, following upon inspections of

various prisons in Lithuania, including Alytus and Marijampolė prisons, between 20th and

27th April, 2018, as well as the response of the Lithuanian Government to that report

which is undated but which is entitled: Response of the Government of the Republic of

Lithuania on measures already adopted or envisaged in order to implement the

recommendations of the Committee for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment set out in the report on the visit to Lithuania carried

9. The report of the CPT noted that the overall prison population had reduced by 5 percent

since its 2016 visit. Marijampolė prison, which has a capacity of 950, was accommodating

931 adult sentenced prisoners at the time of the visit, and Alytus prison, with a capacity

of 1,200, was accommodating 973 male sentenced prisoners. In spite of that however,

the CPT found that the official norms of living space per prisoner were 3.1m2 for

dormitory type accommodation and 3.6m2 for multi-occupancy cells. Accordingly, it again

called upon the Lithuanian authorities to raise the official minimum standard of living

space per prisoner to at least 4m2 in multi-occupancy cells and 6m2 in single occupancy

10. Living conditions in prisons were noted to be generally good in already refurbished or

reconstructed units, although it was noted that overcrowding in large capacity dormitories

represented one of the factors contributing to inter-prisoner violence. The CPT noted that

many inmates in prisons complained that they were only allowed to take a shower once a

week and recommended that the frequency of showers be increased to at least twice a

week, and more, if necessary. It had recommended this previously. There were also

complaints about food at two prisons, one of which was Marijampolė, and the CPT

repeated a previous recommendation that steps be taken to review the quality and

11. The CPT also made recommendations in relation to the provision of organised activities,

including at Alytus and Marijampolė prisons and recommendations regarding the review

and improvement of prison healthcare facilities. The CPT repeatedly uses the word

“reiterates” in relation to many of its recommendations in the report, obviously indicating

12. By far the most critical part of the CPT report is that relating to inter-prisoner violence. To

get a full appreciation of the extent of the problem as identified in the report, it is

necessary to quote from certain paragraphs extensively. In para. 17 of the report it is

“By contrast, a number of credible allegations of physical ill-treatment, many of

them corroborated by medical evidence were heard at Alytus, Marijampolė and

Pravieniskes prisons; the ill-treatment alleged consisted essentially of use of

excessive force (punches, kicks and truncheon blows) in the context of staff

“22 As had been the case during previous visits to Lithuania, the delegation observed –

especially in the three penitentiary establishments with predominately dormitory-

type accommodation i.e. Alytus, Marijampolė and Pravieniskes prisons – truly

extraordinary levels of inter-prisoner violence, intimidation and exploitation.

The delegation was again inundated with allegations of prisoners having been

subjected to violence (including violence of a sexual character and forcing prisoners

to perform slave labour) from members of informal prisoner hierarchies, whose

power was reportedly linked with the omnipresence of illicit drugs and alcohol (as

well as mobile telephones and dangerous objects including bladed weapons) and

facilitated by a very low prison staff presence (as well as, at least to a certain

It should be added that the examination of relevant medical registers, prisoners’

medical files and other documentation in the three prisons (Alytus, Marijampolė and

Pravieniskes) revealed – despite the generally poor and even worsening quality of

medical records – the presence of numerous injuries, sustained by prisoners inside

the accommodation and work/activity areas, the character of which clearly suggests

23. The numerous allegations of inter-prisoner violence heard from inmates in the three

establishments visited, referring to a phenomenon acknowledged to a large degree

by the prison Directors and many of the staff members with whom the delegation

spoke (as well as other delegations’ interlocutors, including senior officials and NPM

staff), gave the delegation a strong impression that the main detention areas in the

three prisons were unsafe for inmates, and that the only parts of the

establishments under the full control of the administration were the punishment

blocks (KTP) which were almost invariably frequently used and constantly filled to

As a result, inmates seeking protection from fellow prisoners had to spend months

(usually 6 months) if not years in small and often dilapidated cells, being subjected

to an extremely impoverished regime (no activities, no association, no long term

visits), de facto amounting to solitary confinement for those prisoners who are

accommodated alone… one may thus sum up their situation in the following way:

prisoners asking for protection received instead isolation and punishment.

Despite such poor conditions, some inmates were – according to their own words –

so desperate to be taken away from the main accommodation that they were

prepared to kill a fellow inmate, only to be able to obtain the much sought after

disciplinary segregation measure and thus feel safer than in their ordinary unit.

To make the dismal picture complete, many prisoners told the delegation that they

had sought placement in KTP because of the perceived threat of being forced to

become drug addicts and out of fear of contracting HIV and hepatitis C. This

14. As a result of these findings, the CPT requested the Lithuanian authorities to provide a

detailed action plan addressing these matters, within three months. The action plan was

provided by letter of 26th September, 2018, and addressed the various headings of action

suggested by the CPT, including certain legislative changes, increased security in prisons,

providing prison staff with Tasers and telescopic truncheons and training in the use of this

equipment (including when it is appropriate to use the same), the provision of body

cameras for every prison officer responsible for supervision, and other measures. The CPT

welcomed the response of the Lithuanian authorities which it felt would, if properly and

energetically implemented, contribute to the reduction of the extent of inter-prisoner

violence. The CPT then made a series of further recommendations. These included

increasing the number of prison staff (and increasing staff salaries to make it easier to

recruit suitable personnel), training to develop staff professionalism with high priority

being given to de-escalation skills and the use of control and restraint measures. The

Lithuanian Government, in its response, noted that a number of these recommendations

were already adopted and in the course of being implemented, while others would be

implemented soon. Salaries had already been increased and would be further increased in

2019 and 2020. This had already had a positive effect with a gradual increase in

personnel noted in 2017 and 2018, contrasted with 2016 which saw a drop off in

15. At the end of this year, 2019, a project is to be launched in conjunction with the

University College of Norwegian Correctional Service, focusing on the formation of a

positive attitude towards inmates, the development of communication skills and the

16. The response of the authorities also states that a model of dynamic security has been

introduced at all penitentiary establishments and the number of officers working directly

with inmates and specially trained in applying the principles of dynamic security is being

increased. Furthermore the number of staff working in a management capacity has been

reduced, making it possible to increase the number of employees working directly with

17. The CPT expressed particular concern about the availability of drugs in Lithuanian prisons

and the link between the availability of drugs and inter-prisoner violence. On the positive

side, it noted that in Marijampolė and Pravieniskes prisoners there were newly opened

“residential rehabilitation centres” and therapeutic programs were offered to prisoners

who were drug users. The CPT recommended the authorities to implement fully a long-

standing recommendation to develop a comprehensive strategy for the provision of

assistance to prisoners with drug-related problems. In its response, the Lithuanian

government stated that substitution therapy for prisoners as well as drug rehabilitation

programmes are included in the inter-institutional action plan for the prevention of drugs,

and inmates who are identified as being involved in drug distribution are isolated from the

remaining prison population. Furthermore, the authorities claim that the dynamic model

of inmate care enables a larger number of officers to be present constantly (during the

day) in the inmates living areas, preventing distribution of drugs.

18. The response of the Lithuanian government also states that: -

“In order to eliminate any threats to persons being held in correctional

establishments, the problem is solved by organisational means – first and foremost

by moving the inmates who have a negative impact on other inmates (informal

prison leaders and their assistants) from one correctional establishment to another,

or by isolating them in vacant cell-type rooms in the same correctional

establishment. In addition, all places of detention became multifunctional as of 1st

September, 2018 i.e. they can all be used to hold both remand prisoners and all

The response goes on to say that if there is concrete data demonstrating that an inmate

has a negative impact of other inmates, such a person is immediately isolated so that he

or she cannot have contact with the inmates being effected by that negative impact.

19. The response also addressed the concerns raised by the CPT as regards living conditions

20. Firstly, I think it is clear from the report of the CPT of 25th of June, 2019 that, leaving

aside the issue of inter-prisoner violence, the conditions in and management of prisons in

Lithuania are not such as to give rise to a violation of rights guaranteed under Article 3 of

the European Convention on Human Rights or Article 4 of the European Charter. New

facilities have been constructed, more staff have been employed and a reduction in the

prison population has been achieved, so that issues that were previously of concern are

no longer of concern, or at least not to the extent that they might give rise to a violation

21. However, inter-prisoner violence remains a very significant concern and it is the

respondent’s case that, if surrendered, he would be subjected to violent assaults by other

prisoners. It is very clear from the extracts of the CPT report above that, at the time of

the inspections in April 2018, the CPT found an alarming abundance of evidence of inter-

prisoner violence in prisons in Lithuania, and in particular at Alytus, Marijampolė and

Pravieniskes prisons such that the main detention areas of those institutions were “unsafe

for inmates”. Moreover, for this and other reasons quoted above, the CPT concluded that

the “situation” [in these prisons] “is clearly unacceptable”. This begs the question as to

whether the “situation” in these prisons is such as to amount to a violation of Article 3 of

the Convention and/or Article 4 of the Charter, as contended by the respondent.

22. Before addressing the likely risk posed to the respondent by reason of inter-prisoner

violence in prison institutions in Lithuania, it is desirable that I should in the first instance

consider whether or not this, in and of itself, could ever be a reason for finding that

detention in any particular prison is contrary to Article 3 of the Convention/Article 4 of the

Charter. Unfortunately, this very fundamental question was not argued and the

application seems to have proceeded on the assumption that this is at least a possibility.

However, this is far from clear. Inter-prisoner violence is just what it says, violence

between prisoners, and is not, by definition, an activity of the State. It may well of course

be argued that a particular State, in some circumstances, facilitates such activity by, for

example, failing to manage its prisons appropriately and/or to provide adequate resources

for such management, and that in such circumstances that State bears a significant

proportion of the responsibility for the violence. If a court were to so find, then it is not

difficult to see how, in the context of proceedings such as these, a court might further

conclude that the inaction or negligence of the State concerned has given rise to a risk of

inhuman or degrading treatment in the form of inter-prisoner violence, contrary to Article

3 of the Convention and/or Article 4 of the Charter. This point was not however argued,

and nor was any authority opened to me to support the argument that in any given

circumstances the violent conduct of prisoners could amount to a violation of rights (by a

23. The issue was touched upon in the decision of Donnelly J. in the case of the Minister for

Justice and Equality v. M.V. [2015] IEHC 524, where she said, at para.71: -

“I accept that for the purpose of the protection of rights a State may be under a

duty to take positive steps to ensure that an individual is protected from inhuman

and degrading treatment by non-state actors. That, of course, does not mean that

a state must prevent all possible ill-treatment by those actors. Such a commitment

is factually impossible and legally not required. Children and other vulnerable

people in particular, are entitled to state protection, in the form of effective

deterrence, against such serious breaches of personal integrity (see A v United

Kingdom (1999) 27 EHRR 611). A vulnerable prisoner is entitled to such

protection in the form of effective deterrence. It is a question of considering

24. In that case, Donnelly J. found the respondent to be a vulnerable prisoner and so it was

not necessary for her to adjudicate upon the more general duty of the State in the

context of prisoners not suffering from any special vulnerability. The furthest that she put

the issue is as set out above i.e. the state may have a duty to take positive steps to

protect individuals from the actions of others. So far as this Court is aware therefore, this

25. It is not, however, necessary to arrive at any decision on the issue for the purposes of

this application. If it was, I would have to ask counsel to address me specifically on the

point, but I have come to the conclusion that it is unnecessary because, in my view, this

Court can and should rely both upon the assurances received directly from the Ministry

for justice of Lithuania and the action plan put forward by the government of Lithuania to

the CPT in response to the latter’s report of 25th June this year. The CPT itself welcomed

the action plan and acknowledged that the proposed measures could contribute to the

reduction of the extent of inter-prisoner violence in Lithuania’s penitentiary

26. It is clear from the report of the CPT of June 2019 that many of its recommendations

were made previously. However, it is also clear that many of the recommendations of the

CPT have by now either been implemented or are in the course of being implemented. It

remains to be seen whether or not the Lithuanian government fully implements the action

plan put forward to the CPT in September of last year, and, if it does so, what the impact

of that will be. However, the Court is both obliged to have trust and confidence in the

assurances and promises of the Government of Lithuania in these matters and is also

obliged to be forward looking in its deliberations. Therefore, having regard to: -

(iii) the fact that the Lithuanian government has already taken significant steps

(iv) the assurances given by the Ministry of Justice of Lithuania directly to this

I consider that this ground of objection to the respondent’s surrender should be rejected.

27. The respondent also put forward an argument that he is specifically at risk of assault if

imprisoned in Lithuania by reason of prior membership of a gang which would expose him

to violence from another gang (the “Azuolai”) which he says is omnipresent in Lithuanian

prisons. He blames this gang for assaulting him when he was previously detained in

Lithuania and he believes it will not be possible to protect him by placing him in any

particular prison, because of the presence of that gang in every prison in Lithuania. The

difficulty with this argument is that, if it were accepted, it could be used by just about

every person who might be liable to surrender to Lithuania. While there is a degree of

specificity about it insofar as the respondent claims that he is particularly vulnerable

because of prior membership of another gang, it is nonetheless an argument that could

be advanced by just about anybody, by mere assertion, and the evidence put forward by

the respondent i.e. his own affidavit, lacks the necessary cogency and specificity for this

argument to have any prospect of success. If what the respondent says is correct, it is a

matter to be taken up with the prison authorities after his surrender.

Result: Respondent's grounds of objection were rejected

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