How do you dispute a will based on undue influence?
Russia’s prisons have come under widespread international criticism in recent years. In 2012 the European Court of Human Rights found Russian prison conditions so appalling that incarceration in many of their jails was likely to breach Article 3 of the European Convention. Cells are medieval: often there is so little space that inmates must take turns to sleep. The toilet is a hole in the corner of the room and inmates are kept locked up for 23 hours a day.
A year later, the UK extradition courts also recognized the Russian systems failings in the case of Fotinova, wanted for her alleged involvement in a conspiracy to smuggle cultural property across the Russian border without a customs declaration, declining to order her extradition to Russia, As a direct result, the English courts required Russia to prove they were capable of detaining people in humane conditions. At that point, a number of extradition requests made by Russia were temporarily put on hold. However, it appears Russia has recently declared itself capable of providing the required proof, and a number of Russian extradition requests are now once again filtering through the British extradition courts.
If Russia does wish to present itself as a bona fide extradition partner, one way of doing this is to ensure that all prisons across the Federation are capable of meeting Article 3 standards. Current political and economic pressures however mean that this looks hopelessly unfeasible.
In the case of Kononko, heard earlier this year the Russian Federation tried a different approach, allowing the pre-trial detention centre, SIZO 5 in Moscow, to be inspected by the UK authorities. Russia stated it would keep Mr Kononko in pre-trial detention in SIZO 5 were he to be extradited. In December 2014, an independent expert visited that prison and concluded that conditions in that prison were poor but not so bad as to breach basic human rights. However, in the days leading up to this inspection there was massive activity in Moscow as the Russian prison prepared itself. Over 150 prisoners were moved out of SIZO 5 to reduce the population by 20% making the conditions considerably better. As if that wasn’t enough, Russian officials also invited the French actor Gerard Depardieu to visit SIZO 5 in the same week that the UK inspector was visiting the prison. In a Kafkaesque show, the Russian media reported Depardieu’s comments on the cells in SIZO 5, comparing them favourably to those in France with which he was also familiar from his troubled youth.
In the eighteenth century, it was said that Grigory Potemkin, lover of the Russian Empress Catherine II created façades of buildings to give the appearance of well-kept villages along the banks of the Dnieper in order to impress the Empress and her ambassadors. In the twenty-first century, it appears a similar technique was applied to SIZO 5 for the benefit of the UK inspector.
In Mr Kononko’s case, the judge heeded the advice from the experts to exercise caution. He determined that if he was proposing to send the case to the Secretary of State for extradition he would need to consider whether to obtain further assurances from the Russians.
Since then, Russia has retreated still further from co-operation with international bodies such as the Council of Europe, with the Russian Constitutional Court ruling in July 2015 that it is permissible in some circumstances to disregard judgments of the European Court of Human Rights. This week, a case in which the Russian Federation had put forward the same assurances ended with the discharge of the requested person, without the court having had the opportunity of looking again at the Russian prisons. Whether the court would take a different view in light of the Russia’s retreat from human rights remains to be seen. For those facing the prospect of extradition to Russia, such assurances can only be cold comfort. They will be left asking whether, in light of Russia’s flagrant violation of international obligations, can it be trusted to keep any of its promises?
By Rebecca Niblock (Kingsley Napley) and Ben Keith (5 St Andrews Hill).
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