Edward Grange writing on the Dzgoev v. Russia case and asks is the UK raising the green flag for Russian extradition requests
Fyodor Dostoyevsky once said, “The degree of civilisation in a society is revealed by entering its prisons”. 136 years after his death, Russian civilisation would not be judged well by these standards. This article examines the impact of the decision of the High Court in the case of Dzgoev v. Russia on future arguments that Russian prison conditions violate a prisoner’s art.3 rights.
The court was asked to consider a single ground of appeal, but one that was vitally important to a number of requested persons facing extradition to Russia whose cases are due to be heard later this year. Were prison conditions in Russia so appalling that they breach art.3 of the European Convention on Human Rights (“ECHR”) and if so, could the assurances that had been provided by the Russian authorities allay the court’s fears that Mr Dzogoev would not be detained in such conditions if extradited?
Ironically, judgment was pronounced in the same week that Boris Johnson cancelled his scheduled trip to Moscow in light of President Putin’s continued support of President Assad and a few days before it was revealed by The Sunday Times that Metropolitan Police officers investigating the murder of Alexander Litvenenko were poisoned themselves whilst in Moscow. Recently, The Sunday Times reported that Russia’s most senior diplomat in Britain – Alexander Yakovenko – claimed that there is no longer any “bilateral relationship of substance”.
The judgment of Gross LJ (in which it was said that Garnham J had made a “substantial contribution”) is astonishing. One could be forgiven, having reached para.65 of the judgment, for thinking that the court was about to allow Mr Dzgoev’s appeal. By this point, the court had expressed its “serious concerns about the phrasing and reliability of the assurances offered to date”; described the mechanism for monitoring those assurances as “less than satisfactory”; noted that it would be “wholly unrealistic” to expect staff from the British Embassy to visit Mr Dzgoev; and observed that an independent expert appointed in a previous extradition case had been lied to by the Russian authorities about the true population figures of a particular prison in Moscow. However, only three paragraphs later, the tide had turned. All hope was extinguished that the court would stand up to the Russian request and find it wanting due to the systemic failures in its prison estate and the failures to afford its residents the most basic of human rights.
Despite the court’s concerns, and instead of either allowing or dismissing the appeal, it invited Russia to provide further assurances. Just so there could be no confusion as to what the court was seeking, the court then drafted these assurances for Russia and annexed them to the judgment.
Extradition Between UK and Russia – A Raised Red Flag?
The Russian Federation does not have a successful track record in securing the extradition of individuals it seeks to put on trial from the UK, with only one such case in the last 14 years . This is partly a consequence of years of non-engagement by the Russian authorities in the extradition process.
It is also an indication of how bad human rights abuses are in Russia – whether it be the inability to provide a fair trial, or subjecting prisoners to conditions of detention that have been denigrated as inhumane and degrading by various international bodies. This led the then Senior District Judge, Timothy Workman, in the mid-2000’s to call a halt to extradition proceedings in Russian cases altogether, unless Russia could establish that conditions of detention in their vast penal estate would not cause a person to suffer inhumane and degrading treatment contrary to art.3 ECHR.
It was to be assumed that prisons in the Russian Federation would fall foul of art.3 unless the Russian authorities were able to establish the contrary position with clear and cogent evidence. This meant that the defence no longer had to engage experts, often at great expense, to make good their argument. If the Russians did not provide evidence to establish that their prisons no longer violated art.3, the court would dismiss the extradition request from Russia in a summary judgment without the need to await the outcome of often lengthy extradition hearings.
Annanyev – A Further Nail in the Coffin of Russian Extradition Requests?
In 2012, the Grand Chamber of the European Court of Human Rights (“ECtHR”) handed down its decision in the case of Ananyev v. Russia, a case that had considered the complaints of several individuals who had protested that they had been held in inhuman and degrading conditions whilst detained in Russian prisons, specifically heinously overcrowded cells. In having no hesitation in declaring that the applicants in Ananyev had been subjected to inhuman and degrading treatment, it then went on to consider the need for a pilot judgment. The court explained that inadequate conditions of detention in Russia were a recurrent problem, with over 80 such findings in a 10 year period. As such, the pilot judgment against Russia was issued. Over five years later, that pilot judgment is still in force and Russia’s prisons remain woefully overcrowded; inhumane and degrading to their occupants.
The UK – Russian Relations Post Ananyev and The Introduction of Assurances
No-one was extradited following this pilot judgment until March 8, 2013, when Maxim Vinstkevich was extradited to Russia in what was described in Moscow as a breakthrough in bilateral relations between the UK and Russia. The “breakthrough” was short lived.
In a judgment given 13 days after Vinstkevich boarded a plane to Moscow, Judge Workman’s successor, Howard Riddle, refused yet another Russian extradition request, for a young woman accused of trafficking stolen artefacts. The extradition request was challenged on the grounds that conditions of detention in Russian women’s prisons were so appalling that to extradite would expose the defendant to a real risk of suffering inhuman and degrading treatment upon her return, in violation of art.3. Judge Riddle, in a significant post-script, reinforced that the UK Court would not extradite in future cases unless Russia either demonstrated that there had been a significant improvement in prison conditions or provided specific, positive assurances about the conditions in which the person whose extradition is sought would be held.
Rather than addressing the systemic failings in their prison system, Russia decided to provide assurances. This approach is not unusual. Many states whose prisons have been found to be inhumane and degrading have provided assurances to paper over the cracks rather than address the problem at its source. Indeed, assurances were described by Sir Brian Leveson as “not merely normal but indispensable in the operation of English extradition law”.
A Period of Russian Engagement
Three years after the aforementioned judgment of Senior District Judge Riddle, he handed down another significant judgment on February 23, 2016. By this date there appeared to have been an increased willingness on behalf of Russia to engage in the extradition process. Indeed, it is understood that members of the Crown Prosecution Service (CPS) – who act as the private solicitors for the requesting state in extradition proceedings – met a delegation from Russia to discuss the impact of Judge Riddle’s judgment.
It seems that the Russians listened. In the case of Russian Federation v. Kononko they provided written assurances guaranteeing that Kononko would not be subject to inhuman and degrading treatment and agreed that a British prison inspector – instructed by the CPS – could inspect the nominated prisons where it was proposed Kononko would be held, a prison that the Russians claimed was not overcrowded.
Professor Rodney Morgan was granted access to SIZO 5 (a remand prison near Moscow) which he visited in December 2014. The evidence provided by the Professor that SIZO 5 was not overcrowded when he visited led Judge Riddle to conclude that there was no real risk of a breach of art.3. He noted that Russia had provided specific assurances, and the Judge – despite being reminded about the Russian authorities’ failures to comply with international obligations on a number of occasions, including obligations to the European Court of Human Rights – saw no reason to doubt the good faith in which they had been given. However, he caveated that statement by stating that if he had sent the case to the Secretary of State (the Judge dismissed the extradition request on other grounds), he would have considered adopting a more cautious approach (in light of the evidence given by both the defence expert and Professor Morgan) and would have sought further assurances from the FSEP to include guarantees on diplomatic visits or visits by the Russian volunteer inspectors. Notwithstanding these caveats, the judgment marked a step in the right direction for Russian efforts to secure the extradition of an individual from the UK.
It therefore appeared that the “reverse burden” had again been reversed, and in light of the assurances provided by the Russian Federation in its extradition requests, it would be for the defence to establish an art.3 violation, including by challenging the assurances proffered.
Was Professor Morgan Hoodwinked?
In an amazing turn of events, it subsequently transpired that the very expert instructed by the CPS on behalf of the Russian Federation in Kononko (Professor Morgan) had been mischievously deceived. In the case of Russia v. Korolev, it was revealed that the prison that Professor Morgan had visited (SIZO 5) – the one put forward by the Russian authorities as not being grossly overcrowded – had in fact been decanted just a few days before the Professor’s visit. Prisoners were literally leaving by the back door as Professor Morgan was being shown in the front. The then Deputy Senior District Judge Emma Arbuthnot, now Senior District Judge, stated:
“What concerned me most about the sudden emptying of the prison was that when Professor Morgan asked about this he was not told the truth. That would be a concern when considering any assurance in relation to prisons given by the [Russian Federation].”
Can Assurances from Russia be Trusted and How are They to be Monitored?
Despite the fact that Professor Morgan was lied to – and so in turn was the UK Court – and despite the words of caution uttered by Judge Arbuthnot, the High Court in Dzgoev nevertheless determined that the problem of the “lie” could be dealt with by a further assurance that Dzgoev would at no time be held in a cell that does not provide him with the space specified by the ECtHR in Ananyev. It appears that little consideration was given to whether anything the Russian authorities said could be taken at face value. Furthermore, how would assurances be monitored to ensure compliance?
The House of Lords Select Committee on Extradition Law reported in March 2015 that “arrangements in place for monitoring assurances are flawed. It is clear that there can be no confidence that assurances are not being breached, or that they can offer an effective remedy in the event of a breach.”
As noted above, in the case of Dzgoev, the High Court stated that the evidence before them was “less than satisfactory” as to the mechanism by which compliance could be objectively verified. The High Court were by no means the first to raise such concerns. The Committee for the Prevention of Torture (“CPT”) have also voiced concerns about the monitoring of diplomatic assurances. This led the Senior District Judge in the case of Kononko to state that had he been minded to send the case to the Secretary of State, he would have sought better assurances from the FSEP. He did not go as far as to draft the assurances for them.
In contrast, the High Court in Dzgoev seemed all too willing to “solve” the problem by drafting assurances for Russia. Now all Russia have to do is cut and paste them into a letter, and sign and return it care of the CPS. They have 42 days from the date of the judgment to do so – that doesn’t appear too onerous. No real thought is required by Russia as to the practicality or phrasing of the terms of the assurances (this has already been done for them). The court has indicated it would find the assurances acceptable if they were to be provided by the Russian authorities – this is hardly surprising given the court drafted them.
The surprising part of the judgment and perhaps the real scandal is that the court appeared to only apply lip service to the Othman criteria. True, the court confirmed that it took into account the matters identified in Othman when determining the quality and reliability of the Russian assurances offered to date, but thorough forensic analysis did not take place on each of the 11 criteria. Only a handful were examined in detail, and in these instances the Russian authorities did not come out on top. Even more troubling was the ease with which the court found that the lie told to Professor Morgan by the Russian authorities could simply be mitigated by the supply of a further “assurance” The additional assurances drafted by the court do not appear to have been given the full Othman scrutiny. That may be left to the ECtHR to resolve.
What is Next for Russian Extradition Cases?
Assuming that the assurances are provided and the appeal is dismissed and there is no appeal to the Supreme Court (Gross LJ and Garnham J would have to certify that there was a point of law of general public importance), Dzgoev’s only possibility of avoiding being extradited to Russia would be for the ECtHR to grant r.39 relief (a form of interim injunction preventing the UK from surrendering him to Russia) whilst it considered the merits of his case.
It is likely that Russia will continue to offer assurances in its extradition requests, no doubt modelled on those drafted by the High Court. SIZO 5 is unlikely to be used in assurances again following the revelation that its one redeeming feature, the low population figures, was a fallacy. However, the ease with which the UK court is willing to accept assurances – and in turn draft assurances – from Russia is deeply concerning in a time when the rest of the world seems to be increasing the scrutiny placed upon Russian diplomacy.
Bi-lateral relations between Russia and the UK are at an all-time low. It should be the courts’ role to carefully examine the assurances offered by Russia in accordance with the Othman criteria, not to draft them. By doing so, the court has deprived itself of the ability to objectively scrutinise the assurances, and has left Mr Dzgoev in the unenviable position of having to rely upon the ECtHR to grant him interim relief to prevent his extradition whilst it examines his case. Thank goodness for our European partners.