AC-2024-LON-0003395 - [2025] EWHC 2795 (Admin)

Both appellants have applied for permission to rely on the 2025 CPT report and the response to it, as fresh evidence not available to the judges below. The respondent accepts that this evidence was not available below and that I must look at it fully to determine whether it is decisive and therefore admissible, which the respondent disputes. The appellants say the fresh evidence would or should have led the judges below to discharge them on article 3 grounds.

There was no dispute about the core principles to be applied in article 3 cases. There is an absolute prohibition on inhuman or degrading treatment (Soering v United Kingdom (1989) 11 EHRR 439, at [88]). As to the standard of proof, before extradition can be refused there must be “strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment” (R. (Ullah) v. Special Adjudicator [2004] 2 AC 323, per Lord Bingham at [24]).

In applying that test, per Dingemans J, as he then was, in Jane v Prosecutor General’s Office, Lithuania [2018] EWHC 1122 (Admin) at [17]-[18]:

“[b]ecause of the principle of mutual trust between EU member states, membership of the Council of Europe is a highly relevant factor in deciding whether an extradited person would, in fact, be likely to suffer treatment contrary to article 3 if extradited to another member state … [the] presumption may be rebutted by clear, cogent and compelling evidence, something approaching an international consensus… For example, if there has been a pilot judgment of the European Court of Human Rights (”ECtHR”) against the requesting state identifying structural or systemic problems the presumption will be rebutted... . Where the presumption is rebutted, the burden of proof shifts to the requesting state… .”

As for CPT reports and comments or opinions stated in them, while the CPT is a Council of Europe body and the Strasbourg court has particular regard for its findings, the court also stated in Mursic v Croatia (2017) 65 EHRR 1, at [113]:

“As the CPT has recognised, the Court performs a conceptually different role to the one assigned to the CPT whose responsibility does not entail pronouncing on whether a certain situation amounts to inhuman or degrading treatment … within the meaning of Article 3 … . The thrust of the CPT activity is pre-emptive action aimed at prevention which, by its very nature, aims at a degree of protection that is greater than that upheld by the Court when deciding conditions of detention.”

I do not need to say more about the Strasbourg jurisprudence on article 3 in prison conditions cases because I have already, in the factual context of this case, cited extensively from the decision in D. v. Latvia in which the relevant previous authorities are discussed. On the domestic front, I have already mentioned the decision of the Divisional Court in Danfelds and of Swift J in Vascenkovs. The submission of the appellants is that developments since those cases were decided and indeed since the judgments below have now rebutted the presumption of compliance in the cases of these two appellants.

As you would expect, the appellants’ submissions focus on the negative points in the 2023 and 2025 CPT reports and the frustration expressed in the latter at the lack of progress in the two years between the visits in May 2022 and May 2024. Informal hierarchies remain entrenched, fuelling inter-prisoner violence which usually goes unpunished and is not investigated. Accommodation in dormitories rather than cells remains prevalent. The authorities rely on the smotriaschije to keep order because of staff shortages.

The lot of the levyje has barely improved and amounts to degrading treatment. While drug consumption in the prisons is on the rise, those seeking drug rehabilitation treatment at the Olaine Addiction Treatment Centre are either already levyje or become one as a consequence of obtaining the treatment. Limited opioid agonist therapy is the only treatment available and only in two prisons. Addict prisoners who are not levyje are denied the chance of early release unless they attend for treatment at Olaine and thereby become levyje.

The appellants criticise the government’s response as inadequate. It states aspirations rather than achievements and relies too much on processes (i.e. structural and legislative reform) rather than concrete steps taken. The measures being taken, while commendable, are incapable of dismantling the enduring historical legacy. The response does not, as it should, attest to a rapid reduction in use of dormitories, nor to segregation of informal leaders from those they lead, nor to substantial increased recruitment and filling of staff vacancies.

On the strength of that fresh evidence, the appellants make three submissions. First, they say the 2025 CPT report provides objective, reliable, specific and properly updated evidence of systemic deficiencies which affect certain groups of people, particularly those belonging to the lowest caste of prisoners, including drug addicts who owe debts inside and outside prison. That is the position of Mr Igoniņs. DJ Clarke was wrong, Mr Hyman submits, to dismiss the dilemma he faces between foregoing treatment, retaining his caste status but losing the chance of early release, or receiving treatment and becoming an untouchable.

Second, D. v. Latvia is authority that the persistence of the informal hierarchy is inhuman and degrading treatment, even without physical violence. Although not expressed as a “pilot judgment” (which is not indispensable to rebutting the presumption), the court in D confirmed that the treatment that violates article 3 can be a person’s status rather than specific incidents. Latvia is obliged to take systemic measures to address the judgment. DJ Clarke placed too much weight on Vascenkovs, which is now overtaken anyway.

Third, the appellants submit, the Latvian government’s response to the 2025 CPT report shows that it is unwilling or unable to take the necessary measures to protect those like Messrs Sostaks and Igoniņs. The failure to take measures to protect “those in the lowest stratum in the hierarchy” (as it is put in the appellants’ joint skeleton argument), while instead proposing measures that are “delayed, partial and likely to be ineffective”, must impel the court to the conclusion that Latvia has lost the presumption of compliance with article 3.

Alternatively, the appellants submit, the court should seek further information from the Latvian authorities about the concrete measures the government will take to protect the appellants; or the court should seek an appropriate assurance. The court has a discretion to do so and should exercise it rather than return these appellants to Latvia. The appellants would wish to be heard further on the terms of any request for further information or an assurance.

The respondent advocated a much more upbeat view of the progress being made to improve conditions and disband the informal hierarchies in Latvia’s prisons. Prison conditions in a particular country are unlikely to be static and the domestic court must proceed on the most up to date evidence available: Elashmawy v. Court of Brescia, Italy [2015] EWHC 28 (Admin) per Aikens LJ (judgment of the court) at [90]. Thus, the respondent submitted, D. v. Latvia is of no real assistance: the treatment found to breach article 3 occurred between eight and 17 years ago.

The 2025 CPT report showed, said the respondent, that inter-prisoner violence had not deteriorated since the CPT’s visit in May 2022. A deterioration would be required to justify revisiting the decisions in Danfelds and Vascenkovs. The CPT’s stance in the 2023 CPT report, considered in Vascenkovs, was that levyje were being subjected to treatment in violation of article 3. The same conclusion is reached in the 2025 CPT report. The committee said (paragraph 59) that it “reiterates” that view; the situation of the lowest caste “could be considered … a continuing violation of Article 3”.

Moreover, said the respondent, there have been improvements: the rules of the informal hierarchy were becoming vaguer and the pressure to accept them less intense. Construction of cellular accommodation is not an aspiration; it is taking place now. The new block with double occupancy cells at Valmiera Prison is close to coming on stream if it is not already receiving prisoners. (Footnote: ⁵) The 1,200 capacity cellular block prison at the new Liepāja Prison is due to open in 2026. With a prison population of under 4,000 that is significant progress.

Other significant measures since the CPT’s visit in May 2024 and the Strasbourg court’s decision in D. v. Latvia are explained in the government’s response: changes to sentencing rules allowing greater sentencing progression, resocialisation measures and the grouping of prisoners according to need. Further the segregation of the smotriaschije is “already being implemented” and “will be upheld” (page 17 of the government’s response).

Further steps are being taken, said the respondent, to recruit additional staff and to adjust the criteria for receiving drug addiction treatment, to ensure the right prisoners receive it. The picture overall is not one of decline but of historically slow and now steady progress and improvement. The appellants would be extradited to conditions better than those at the time of Vascenkovs; the presumption of compliance was not rebutted then; a fortiori, it cannot be now.

The respondent submitted that neither appellant runs the risk, if extradited, of becoming a member of the lowest caste. Mr Sostaks did not refer in evidence to having been one when last imprisoned in Latvia. Mr Igoniņs confirmed that he was not; he was a mužik or middle-tier prisoner. Both express concern at the prospect of becoming an untouchable if they receive drug treatment but, as DJ Clarke correctly observed, having to serve a sentence in full is not a violation of article 3. Both appellants can point to treatment received at HMP Wandsworth and both stand to benefit from improved pathways to treatment in Latvian prisons and inroads into the power of the informal hierarchy.