More nails in the coffin for
Russian Federation extradition requests?

2 April 2020

On 9th December 2019 Chief Magistrate Emma Arbuthnot gave her judgment in the cases of Olga Egorova, Dmitry Smychkovsky, Ion Tsurcan and Fryodor Kindrachuk. The Russian Federation had issued separate requests for the extradition of these four requested persons who stand accused of various unrelated offences.


On 5th June 2019 the Chief Magistrate had indicated that she intended to look at the issues of prison conditions and the monitoring of any assurances given. This followed two years in which the UK courts had repeatedly heard the same arguments “time and again”. Her stated aim was to avoid the usual situation where an extradition case ran for months before what was becoming an inevitable discharge which was not appealed.

In spite of an indication in July 2019 that the Court would not accept any more evidence from the Russian Federation before the hearing on 15th October, the Chief Magistrate did admit further evidence shortly before that hearing to allow the Russian Federation “every chance” to show that there was in place a satisfactory monitoring system to ensure compliance with Article 3.

There were 2 questions for the court to determine. Firstly, whether the prison assurances (including photographs) sent by the Requesting State were adequate. If so, whether the proposed method of monitoring the assurances given would be effective in practice and therefore reduce the risk of an Article 3 breach.

The Court looked to Dzgoev v Russia [2017] EWHC 735 (Admin), Ioskevich v Russia [2018] EWHC 696 (Admin) and Shmatko v the Russian Federation [2018] EWHC 3534 (Admin), the most recent cases in the High Court where Article 3, assurances and monitoring were considered.  

In Shmatko Professor Judith Pallot had provided new evidence to the High Court that the PMCs or ONKs (the Prison Monitoring Committees) which had been independent had become dominated by law enforcement representatives and had reduced their activities. The High Court accepted that an Act of July 2018 had stopped independent and impartial prison monitoring in the Russian Federation and had ended the unimpeded access of the PMCs to penal institutions. This absence of any effective monitoring of prison conditions further increased the probability that Article 3 rights would be breached.

In the case under discussion the Court received prison assurances in respect of each Requested Person. For the defence, Professor Pallot gave evidence about the conditions in the various penal institutions. In addition, she described conditions in the prison trains used – relevant in the case of two of the Requested Persons who faced a lengthy journey from Moscow - as having poor ventilation, no bedding or mattresses, no access to lavatories other than according to a timetable, poor food rations and reported humiliating rituals undergone by prisoners. The Professor accepted that the FSIN had pledged to modernize its fleet of railway carriages but she said that progress was slow.

In making her finding the Chief Magistrate commented that the most encouraging aspect of the case was the way in which the Russian Federation had engaged after several years of failing to assist. The Court had also received information, confirmed by Professor Pallot, that there have been considerable and successful efforts to empty prisons in the Russian Federation and use, for example, the equivalent of home detention curfew instead of custody. There was also evidence from the Professor that new prisons are being built to replace the old.

The Chief Magistrate found that the majority of Article 3 rights would not be breached but the situation would require close monitoring.  Areas of concern included the torture and violence prevalent in some of the prisons, the medical treatment available and the conditions in which the Requested Persons would be transported once extradited to the Russian Federation. She concluded that these issues would require careful monitoring to ensure compliance and went on to consider whether the Russian Federation would be willing to cooperate with international monitoring mechanisms. Although the CPT is allowed into Russian prisons, the Russian Federation rarely allows their reports to be published. Regional Commissioners for Human Rights (“CHRs”) are electing fewer human rights specialists and are not independent of the prisons. Based regionally, they have a wide range of duties and little or no influence. 

In the absence of effective monitoring the Chief Magistrate found a real risk that if extradited the Requested Persons would be held in conditions which seriously violated their Article 3 rights and the absence of effective independent monitoring of prison conditions increased that risk. 

In discharging the Requested Persons but commenting that it was, of course, open to the Russian Federation to re-send the extradition requests, she invited the authorities in the Requesting State to consider the following if re-submitting the requests:

  • providing an assurance in relation to transportation of the two RPs who have far to travel to get to where they will be held.
  • providing an assurance that Ms Egorova's medication and the appropriate tests and treatment would be provided;
  • sending photographs of all the relevant SIZOs and colonies
  • asking the British Embassy to consider whether they would be willing to monitor the assurances; and
  • providing information in relation to the length of time RPs are held in quarantine before being moved in to the main part of each prison.

The Requesting State sought leave to appeal the decision and leave was refused by the High Court. A decision was taken not to renew that application.

The decision of the Chief Magistrate will be very hard for the authorities in the Russian Federation to reverse. Their domestic law does not allow for the independent monitoring of prisoners in the way envisaged by the UK courts. The British Embassy is only able to monitor British citizens incarcerated in Russian Federation prisons, and this is unlikely to apply in the majority of cases. Until an answer is found, I believe the CPS will see little or no point in asking Westminster Magistrates’ Court to issue an arrest warrant with a view to commencing extradition proceedings which are bound to fail. No doubt this decision will have an effect on extradition cases involving other Requesting States in which Article 3 arguments are successfully run.

The whole question of prison assurances is due to be dealt with by the Supreme Court who, on 12th March 2002, granted permission to appeal in a case concerning the viability of assurances purporting to guarantee compliance with Article 3 of the European Convention on Human Rights. The following question of law of general public importance was certified:

Where a Court is obliged to assess an assurance given to the United Kingdom relevant to extradition, is it is correct that the Court should exercise very considerable caution before admitting evidence which does not relate to an alleged previous breach of an assurance to the United Kingdom, but rather to an alleged breach of assurance to another EU member state? If yes, is it a correct approach that the Court should satisfy itself that such evidence is manifestly credible, directly relevant to the issue to be decided and of real importance for the decision in question?”

This will be the first extradition appeal concerning prison conditions to be heard by the Supreme Court and relates to a Ukrainian national whose surrender to Hungary was ordered at Westminster Magistrates’ Court on 1 September 2017. He is accused of attending a government office in Hungary on 15 April 2015 and, conspiring with a public official, submitting a fraudulent application for a passport under a different name. The defence had argued, inter alia, that his surrender would breach his Article 3 rights. 

During his appeal the Appellant sought to rely on evidence from various individuals who had been extradited to Hungary from both the UK and Germany. They had complained that they had been subject to assurances which had not been honoured. The Hungarian Ministry of Justice said that Hungarian law prevented them from giving information about the individuals extradited from Germany to the UK. A distinction was drawn between assurances given to the UK and breached and those given to other Member States. The Court therefore concluded that the assurances were reliable and dismissed the appeal on 16 April 2019, certifying the point of law set out above.

Coincidentally, in the case of Olga Egorova, Dmitry Smychkovsky, Ion Tsurcan and Fryodor Kindrachuk, the Russian Federation had provided evidence of a 5-year agreement between the Russian Federation and Germany. Under that agreement the Russian Federation gave various Article 3 assurances which it required its prosecutors to follow, while the latter monitored adherence. Between 2017 and 2019 Germany extradited 35 people to the Russian Federation and there had been no complaints of non-compliance with the assurances.

The monitoring must have been of non-German nationals as Germany does not extradite her own nationals to the Russian Federation. Contrast this with the view of the British Embassy in the Russian Federation that its staff can only provide monitoring of British nationals.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

About the author

Alison Riley is Legal Counsel in our criminal litigation team. She has represented numerous Requesting States both inside and outside the EU in cases involving offences of all kinds. Alison has also done a considerable amount of extradition policy work and has lectured and conducted seminars to a variety of audiences on behalf of several different organisations and groups both in the UK and abroad.

 

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