Court of Appeal dismisses appeal against extradition order, upholding High Court's refusal to grant leave to appeal.

THE COURT OF APPEAL Neutral Citation: [2025] IECA 212 Record Number: 2025/36 Edwards J. McCarthy J. Burns J.

BETWEEN/

THE ATTORNEY GENERAL RESPONDENT

-AND-

OLEKSII OLEKSIYOVYCH LYTVYNENKO APPELLANT

JUDGMENT of Ms. Justice Tara Burns delivered on the 13th day of October, 2025

1. This is an appeal by the appellant against the judgment of the High Court (Keane J) [2025] IEHC 100, ordering the extradition of the appellant to the United States of America (‘the USA’) pursuant to s. 29 of the Extradition Act 1965, as amended (‘the 1965 Act’).

2. The USA sought the extradition of the appellant by formal written request on 8 June 2023 for the purpose of prosecuting him in respect of two conspiracy charges, namely conspiracy to commit fraud in relation to computers and conspiracy to commit wire fraud. It is alleged that the appellant was involved in the use of ransomware against a government entity and two businesses in Tennessee from 2020 to 2022 and that payment by two of the victims of the alleged ransomware was made in the sum of $634,000 in cryptocurrency. Detailed information relating to the alleged criminal offences is set out in the affidavits supporting the extradition request which is rehearsed in the High Court judgment.

Background

3. In September 2022, the appellant, who is a Ukrainian national and a lawyer, was granted temporary protection in this jurisdiction pursuant to s. 60 of the International Protection Act 2015 (‘the 2015 Act’), following his arrival in this jurisdiction after the Russian invasion of Ukraine. His wife and son (now aged 11) had earlier been granted temporary protection when they arrived in this jurisdiction in July 2022. None of the family have sought international protection pursuant to s. 15 of the 2015 Act.

4. The High Court judgment sets out in detail the formal request for the appellant’s extradition received from the USA and the supporting documentation accompanying the request. In addition, the extensive affidavit evidence filed in the matter is referred to in the judgment, together with the protracted history of the proceedings before the High Court. The legislative framework governing an extradition request is also comprehensively set out. I do not propose repeating these details in light of the narrow grounds of appeal filed in this matter.

5. For the purposes of the appeal, the appellant did not take issue with the formal proofs in the case, the question of correspondence, or that the requirements of minimum gravity had been met.

6. The appellant raised a myriad of objections before the High Court to his extradition. Each ground was considered and rejected by the trial judge. Not all of these objections feature in the appeal grounds before this Court. Accordingly, only the issues in respect of which a ground of appeal has been formulated and proceeded with at hearing will be referred to in the course of this judgment.

Grounds of Appeal

7. By notice of appeal dated 18 February 2025, the appellant indicated his desire to appeal the decision of the High Court on the following grounds;

1. “Breach of the Appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights and Article 38 of the Constitution:

a. Having sought reunification with his family, in Ireland, as a beneficiary of the EU Council Temporary Protection Directive [Council Directive 2001/55/EC] fleeing war in Ukraine, the Appellant was deprived of an opportunity to gather and obtain evidence and/or witnesses from his war-torn country for the purposes of extradition proceedings and for his defence in US trial proceedings;

b. The Appellant was denied access to the evidence contained in his laptop and phones, seized by servants or agents of the Applicant/Respondent and servants or agents of the State seeking the Appellant’s extradition, to wit the Federal Bureau of Investigation of the United States of America, at the time of his arrest in Ireland, thereby obstructing his right to properly meet his case in the extradition proceedings the subject of this appeal and his defence of the criminal proceedings against him in the USA, if extradited, thereby further constituting an abuse of process and denial of justice;

c. The Appellant has been deprived of equality of arms in adversarial proceedings, denying him a full opportunity to present his case and prepare for his defence under conditions that do not place him at a substantial disadvantage, including, inter alia, the denial of seized material that would support his objections to being extradited and his innocence at trial; d. The fairness of any trial of the Appellant is likely to be seriously prejudiced by the lack of disclosure of material evidence put forward to support his extradition to the United States, by failing to allow him to prepare for his defence, by failing to identify alleged conspirators and/or evidence of his alleged role in the offences alleged against him.

2. Breach of the Appellant’s Article 8 rights under the European Convention on Human Rights and Article 41 of the Constitution as extradition to the United States would be incompatible with the State’s obligations under European law to offer temporary protection and reunification rights under the EU Council directive to those fleeing war in Ukraine. There is no equal protection to Temporary Protection in the state seeking the Appellant’s surrender that could be offered to his family, and further to consequent reunification difficulties as non-holders of a United States entry visa. The Temporary protection issue will be dealt with in Ground 4 addressing also refoulment.

3. The Learned Judge erred in law in finding that the extradition request was supported by documents satisfying the requirement under section 25(1)(b) of the Extradition Act 1965, in circumstances where the documents do not connect the Appellant to the substantive charges on which his extradition was sought.”

8. The appellant also sought to add a further ground of appeal to his appeal grounds and a motion seeking leave to add this ground was brought before the Court. This proposed ground of appeal is:-

4. “The risk of refoulment to Ukraine at the conclusion of the criminal process: The Appellant has not applied for international protection, only temporary protection.

There is no equivalent protection in the United States of America. If he is extradited and leaves Ireland, he will lose the right to Temporary Protection.”

9. At the hearing of the appeal before us, Counsel on behalf of the appellant indicated that he would not be pursuing ground of appeal number 3 for the purpose of the appeal. This was a sensible course of action for the appellant to take. The affidavits filed in support of the extradition request clearly set out the alleged offences in respect of which the appellant’s extradition is sought and detail the extensive evidence against the appellant which on its face establishes a connection between the appellant and the alleged offences. At paras 55

– 65 of his judgment, the trial judge considered the detailed information provided by the USA authorities regarding the case against the appellant and indicated that he “was satisfied that the extradition request is supported by documents that contain a statement of the pertinent facts of the case, indicating as accurately as possible the time and place of the commission of the offence, satisfying the relevant requirement under s. 25(1)(e) of the Act of 1965”. He added that this material established a prima facie case against the appellant.

As an aside, pursuant to the Ireland-US Extradition Treaty, the establishment of a prima facie case is not required in respect of an extradition request from the USA. However, regardless of the absence of a requirement to establish a prima facie case, the trial judge was of the opinion that such a case had been made out against the appellant. I agree with the trial judge’s findings in relation to the adequacy of the information provided in support of the extradition request and that the requirements of s. 25 of the 1965 Act are met. I also concur with his assessment of the evidence averred to in the affidavits in terms of the establishment of a prima facie case against the appellant.

10. Additional submissions were filed by the appellant, without leave being sought from the Court. This occurred after the matter had been listed for hearing but adjourned by the Court on foot of a scheduling difficulty which arose for the appellant’s senior counsel which this Court was happy to accommodate, in the particular circumstances of the case. These additional submissions indicate that they are in support of ground of appeal number 3.

However, on their face it is unclear how this is the case as they do not relate whatsoever to the terms of ground of appeal number 3 and instead raise claims of abuse of process and interference with professional legal privilege. At the short appeal hearing before us, Counsel for the appellant indicated that the areas of his focus for the purpose of the appeal related to fair trial rights, family law rights and refoulement. In light of the fact that these additional submissions do not relate to the grounds of appeal filed, and as an application was not made to amend the grounds of appeal, I will not address the additional submissions filed. In any event, it appears to me that some of the arguments raised in these submissions relate to the admission of evidence before a trial court and are not relevant to the extradition request.

The Parties Submissions

11. The appellant submitted that his right to a fair trial and his right to litigate his defence would be breached should he be extradited to face a criminal trial. He submitted that he would not receive a fair trial in circumstances where evidence he may wish to rely upon for his defence, whether that be real evidence or viva voce evidence, is unavailable to him due to the war in Ukraine, and further that he was deprived of evidence contained on his computer and mobile phone which were seized on his arrest. In addition, the appellant submitted that his personal and family life rights under Article 8 of the European Convention of Human Rights (‘ECHR’) and Article 41 of the Constitution would be disproportionately interfered with should he be extradited to the USA as his wife and child would have to remain in this jurisdiction because they would be unable to obtain ‘temporary protection’ in the USA. It was submitted that due to the exceptional nature of this case, in terms of the temporary protection which the family were entitled to avail of having fled a war zone in Ukraine, the protection of these family life rights in the circumstances outweighed the public interest in extraditing him. Finally, the appellant submitted that there was a substantial risk of refoulment should he be extradited, as there is no equivalent temporary protection procedure in the USA which meant that once released from custody he faced a real possibility of being returned to Ukraine.

12. By way of preliminary objection, the respondent submitted that the appeal grounds raised by the appellant did not constitute “a point in law” as required pursuant to s. 29(5) of the 1965 Act and that therefore the appeal should be dismissed in limine. In the alternative, it was submitted that the trial judge did not err in law in his determination with respect to the asserted interference with the appellant’s right to a fair trial. It was submitted that the appellant failed to identify any particular evidence which he claimed he was denied access to and had not set out any factual basis for asserting that he would not have access to this evidence before the trial court in the requesting state for the purpose of his defence. It was submitted that the trial judge correctly identified that any issue relating to fair trial rights and disclosure issues are matters which were more appropriately dealt with in the requesting state. In relation to the family life rights, the respondent submitted that the appellant failed to identify any error of law arising from the trial judge’s analysis of this claim. It was submitted that extradition will only be precluded by private or family life rights in the most exceptional circumstances. The respondent argued that whilst it is the case that the appellant’s wife and son cannot avail of temporary protection in the requesting state, the appellant did not put forward any evidence regarding any practical difficulties they may face in seeking visas to enter the USA. With regard to the issue of refoulment, the respondent referred to the fact that the trial judge sought further information from the USA authorities and that the information provided by them was sufficient to enable the trial judge to conclude that the risk of refoulement did not arise.

Presumption that fundamental rights will be upheld by requesting state

13. The trial judge commenced his consideration of the appellant’s objections to his extradition by reference to the presumption which exists in extradition cases to the effect that the fundamental rights of the requested person shall be upheld and respected by the requesting state. He stated at paras 84 and 85 of his judgment:-

“84. There is a default presumption in extradition cases that that the requesting country will act in good faith and will respect the fundamental rights of the requested person should extradition occur, albeit one that is weaker and more easily rebutted than that which arises under the European Arrest Warrant system; Attorney General v O’Gara [2012] IEHC 179, (Unreported, High Court (Edwards J), 1 May 2012) (at para. 10.3).

85. That is because the principle of mutual trust and confidence is at the heart of bilateral and multilateral extradition arrangements, as an expression of the sovereign power of the states concerned. Such arrangements imply at least some level of mutual political trust and, at the judicial level, confidence in the legal systems of the cooperating states. The making of an extradition arrangement presupposes that the Government and the Oireachtas are satisfied, amongst other things, that a person being extradited to another State with which Ireland has such an arrangement will not have his constitutional (or ECHR) rights impaired: Minister for Justice, Equality and Law Reform v Stapleton [2008] 1 IR 669 (at 688-9).”

14. This is an important presumption which I must also apply in my consideration of the appellant’s remaining objections to his extradition.

Discussion and Determination Fair Trial Rights

15. The appellant asserted that his fair trial rights had been and would continue to be breached in that he was unable to obtain evidence in aid of his defence from either Ukraine (because of the war) or from his phone and computer (because these were seized by An Garda Siochana at the time of his arrest on foot of the arrest warrant issued in these proceedings). He submitted that the unavailability of such evidence was detrimental to his ability to litigate his objection to being extradited and, if extradited, would negatively impact on his ability to defend the case against him in the USA.

16. In this regard, evidence was before the Court that all of the items seized from the appellant at the time of his arrest, which were noted in an exhibits chart, were forwarded to the USA authorities.

17. With respect to these complaints, the trial judge stated at para. 117 of his judgment that “beyond the bare averments and bald assertions … the [appellant] has provided no evidence whatsoever in support of these claims and no further information concerning them”. The trial judge found at para. 125 that these “bare averments fall well short of establishing, or indeed, putting the court on any further inquiry concerning – any alleged improper or mala fide conduct on the part of the requesting country or of the State, capable of amounting to an abuse of process.”

18. It is worth noting that in Soering v. United Kingdom App no 14038/88 (ECtHR, 7 July, 29189), the threshold for finding a breach of fair trial rights under Article 6 of the ECHR, as a bar to surrender in an extradition case, was held to be one of exceptionality and of an apprehended flagrant denial of justice. The Court of Appeal in AG v. Marques [2016] IECA

374 referred to Othman (Abu Qatada) v. UK, App no 8139/09 (ECtHR, 17 January 2012)

wherein in the ECtHR stated:-

‘It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact … serves to underline the Court’s view that “flagrant denial of justice” is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.’

19. The Minister for Justice v Stapleton [2008] 1 IR 669 is also of importance when considering this issue. In Stapleton, the Supreme Court recognised the role of the requesting state when determining fair trial issues with Fennelly J. stating at para 76:

“Moreover, on the facts of the case, it is demonstrably more efficient and more convenient that those matters be debated before the courts of the country where the Respondent is to be tried. The prosecuting and police authorities as well as other witnesses are available to and amenable to the jurisdiction of the courts of that country. Documentary evidence, of the type demanded by the Respondent, will be more readily available there. If not, its absence may be more readily explained. There may, in addition, be arguments or points of domestic law, whether based on precedents or otherwise, which the Respondent can advantageously argue or rely upon which may not be available to him in this jurisdiction and of which an Irish court might not necessarily be aware.”

20. The appellant has not identified what evidence is lost to him because of the war in Ukraine nor what has been withheld from him from his own personal devices. The appellant has not established how any such evidence would assist in his objection to his extradition. Neither has the assertion that he will not be provided with proper disclosure by the US authorities of relevant material contained on his personal devices been substantiated. I must apply the presumption that the requesting State will act in good faith and observe the fair trial rights of the appellant. Nothing has been put in evidence which establishes that his fair trial rights will not be respected or, indeed, raises a concern that this may prove to be the case. For that reason, adopting the reasoning in Stapleton, the appropriate venue for any issue in relation to missing evidence or lack of disclosure to be litigated are the courts of the requesting state.

21. Accordingly, it has not been established that the trial judge erred in the determination he made in this regard. I therefore would dismiss this ground of appeal.

Family Life Rights

22. Relying on the fact that the appellant and his family fled war torn Ukraine, and that his family are residing in this jurisdiction on the basis of temporary protection, the appellant submitted that his circumstances were truly exceptional and that extraditing him to the USA would be an interference with his family life rights in breach of Article 41 of the Constitution and Article 8 of the ECHR which he asserted was disproportionate to the aim to be achieved. He relied on the fact that his family would be unable to avail of temporary protection in the USA, as it was not a recognised legal status in that jurisdiction. He asserted that his family would be subjected to revictimization and trauma by his extradition and that they would be unable to visit him as they may have difficulty obtaining American visas.

Some health issues afflicting the family, were set out in the affidavits filed and were also considered by the trial judge under this heading.

23. The trial judge had careful regard to the decision of Donnelly J in the Court of Appeal in Minister for Justice and Equality v. DE [2021] IECA 188, wherein she set out the appropriate approach to an Article 8 objection in EAW proceedings. Adopting this analysis to an extradition case, the trial judge found that the following principles applied, at para 87 of his judgment:-

“(i) Extradition presupposes an impact on the personal or family life of a requested person. Having regard to Article 8(2), extradition carried out pursuant to legislation is in principle an acceptable interference with the right to respect for those rights;

Minister for Justice and Equality v Ostrowski [2013] 4 IR 206 (‘Ostrowski’); Minister for Justice and Equality v Vestartas [2020] IESC 12 (‘Vestartas’); and Minister for Justice and Equality v JAT (No. 2) [2016] 2 ILRM 262 (‘JAT (No. 2)’).

(ii) When faced with an Article 8 objection to extradition, the function of the court is to decide if the extradition is incompatible with the State’s obligations under the ECHR. That requires a very high threshold. Any inquiry must bear in mind that s. 9 of the Act of 1965 requires the surrender of a person in accordance with the provisions of that Act and that there is a default presumption that the requesting country will act in good faith and will respect the fundamental rights of the requested person should extradition occur.

(iii) The evidential burden of proving incompatibility lies on the requested person;

Rettinger and Vestartas.

(iv) The assessment of the claimed impact of surrender on personal and family rights must be a rigorous one; Rettinger and JAT (No. 2).

(v) The evidence must be cogent and must reach the level of incompatibility; Vestartas.

(vi) Exceptionality is not the test for incompatibility, but it will only be in a truly exceptional case that surrender will be found to be incompatible with the State’s obligations under Article 8 of the Convention; JAT (No. 2) and Vestartas.

(vii) For an Article 8 objection to succeed, there must be clear cogent evidence sufficient to rebut the default presumption that the requesting country will act in good faith and will respect the fundamental rights of the requested person should extradition occur.

(viii) No elaborate factual analysis or weighing of matters is necessary unless it is clear that the facts come close to a case which would be truly exceptional in nature thereby engaging the possibility that surrender may be incompatible with the States obligations under the Convention; JAT (No. 2).

(ix) The requirement that the circumstances must be shown to render the order for surrender incompatible with the State’s obligations under Article 8 necessitates that the incursion into the private and family rights referred to in Article 8(1) is such as to supervene the limitations on the right contained in Article 8(2) and over the public interest thresholds set by the Act of 1965 itself.

(x) Where the facts, assessed as set out above, come close to being truly exceptional in nature thereby engaging the possibility that surrender might be incompatible with the State’s obligations, the Court will engage in a proportionality test of whether the high public interest in the prevention of disorder and crime (and the protection of the rights of others) is overridden by the personal and family circumstances (taken where appropriate with all of the cumulative circumstances) of the requested person. That is a case-specific analysis which will be required in very few cases.”

24. Having considered the legal principles applicable and the interference with family life asserted, the trial judge came to the following conclusion at para. 94 of his judgment:-

“Having carefully considered the evidence relied upon by the [appellant], I conclude that it does not reach the high threshold necessary to demonstrate that it is close to the margin where surrender might be said to be incompatible with the State’s obligations to respect personal and family life.”

25. In light of that determination by the trial judge, a requirement to engage in a proportionality assessment did not arise.

26. I am of the opinion that the trial judge did not err in his determination that the interference with the family life rights of the appellant was not of such a degree that it came close to the margin where his surrender might be said to be incompatible with the State’s obligation to respect family life. Undoubtedly, there will be an interference with the family life of this family, and it is the case that their position is unusual in light of the fact that they have fled war torn Ukraine, with the personal trauma that would have ensued. However, extraditing the appellant to the USA, having regard to these circumstances, does not amount to an interference with family life such that it can be categorised at the level of exceptionality that extradition should not occur. While his family may be unable to reside in the USA on a permanent basis, as the legal status of temporary protection would not be available to them, that is no different to any other family where a family member is extradited. With respect to obtaining visas to visit the USA, I cannot imagine that they are in a different position to any other applicant for a visa and certainly no contrary evidence was placed before the High Court in that regard. Accordingly, while they have been through a traumatic event in terms of leaving their homeland because of war, the interference with family life which extradition presents is not of such an exceptional level that it presents an interference of such magnitude with the State’s obligation to respect family life.

27. The trial judge clearly considered the issues arising and determined that the level of interference with family life was not of such an exceptional nature. I am of the opinion that the trial judge did not err in his assessment of the interference with the family life rights at issue. For that reason, I would dismiss this ground of appeal.

Refoulement

28. The appellant asserted that following the conclusion of the criminal proceedings in the USA, there was a real risk that he would be deported to Ukraine which would be in contravention of the principle against refoulement. He argued that as the USA does not have a legal status of “temporary protection”, he would be unable to avail of the protection which he has in this jurisdiction.

29. The trial judge sought further information from the requesting State in this regard. The response, in summary, was to the effect that the appellant would have open to him an avenue to make a claim for relief from removal to a designated country or countries based upon a credible fear of return on account of a protected ground (namely, race, religion, gender, sexuality etc.), or a fear of torture.

30. Having considered this further information, the trial judge determined at para. 99 of his judgment:- “On the basis of that evidence, the respondent has failed to persuade me that his extradition would expose him to a real risk of being subjected to torture or inhuman or degrading treatment or punishment, contrary to Article 3 of the ECHR, and in breach of his right to bodily integrity and human dignity under the Constitution, through the risk of his refoulement to Ukraine by the USA at the conclusion of the criminal process.”

31. Minister for Justice v MEH [2022] IEHC 71 is relevant to this issue. Burns J., stated at para

27 of his judgment:

“It is clear from Article 7(2) of the Asylum Procedures Directive and paras. 35 to 37 inclusive of the UN Guidance Note, that there is no principle of international law which prohibits the surrender or extradition of a person seeking international protection/asylum, provided the relevant safeguards are in place to protect against non-refoulement and to ensure access to a fair asylum procedure. Indeed, it would appear to be the case that international law expressly recognises that a system of surrender/extradition can operate in such circumstances.”

…

“I am satisfied that the permission to remain in the State pursuant to s. 16(1) of the Act of 2015, does not, in principle, automatically operate as a bar to this Court making an Order for the surrender of the respondent, or necessitate this Court postponing the effect of such an Order, should the other conditions for surrender under the Act of 2003 be met.”

32. I agree with the dicta of Burns J., above. The fact that the appellant has acquired temporary protection in this State, does not act as a bar to his extradition.

33. In light of the response received from the requesting state, I am of the view that the trial judge did not err in his determination that the appellant was not at risk of refoulement once released from custody in the USA. While the legal status of “temporary protection”, which is available to the appellant in this jurisdiction, will not be available to him in the USA, he nonetheless can avail of a procedure once subjected to possible deportation to make representations as why he should not be deported to a specific country or countries.

Accordingly, I would dismiss this ground of appeal.

Preliminary Objection

34. The respondent made a preliminary objection to the appeal proceeding on the basis that the appellant had not raised an error by the trial judge on a point of law, as is required pursuant to s. 29(5) of the 1965 Act. I have proceeded to determine the appellant’s grounds of appeal on each individual ground, as it is arguable that an error in law was asserted by the appellant in respect of each ground. While I ultimately have determined that the trial judge did not err in his assessment of each of the issues raised on appeal, I was not prepared to dismiss the appellant’s appeal in limine.

Conclusion

35. In circumstances, where I have not upheld any of the appellant’s grounds of appeal, I am of the view that the appellant’s appeal against the order made by the trial judge should be dismissed.

Approved No Redaction Needed