From the Iron Curtain to détente: the slow thawing of UK-Russian extradition relations

For the past decade the extradition pipeline from the UK to Russia has been frozen. The UK’s courts have repeatedly refused extradition to Russia, principally on the basis that the individuals sought by the Russian authorities would suffer inhuman and degrading treatment in Russia’s prisons contrary to Article 3 of the European Convention on Human Rights (ECHR). In the past week, however, an important judgment handed down in Westminster Magistrates Court has broken with this tradition, and in the process has signalled a new era of détente in UK-Russian extradition relations.

The defendant (K) was sought by Russia on allegations of fraud and forgery. K argued that his extradition should be refused for four reasons. First, the request was an abuse of process. Second, the request was politically motivated. Third, he would suffer inhuman treatment in Russia’s prisons. And fourth, he would be exposed to an unfair trial. Historically defendants facing extradition to Russia succeeded on most if not all of these arguments. But in K’s case, it was only in relation to the last of these arguments – the question of the fairness of his trial in Russia – that the Court sided with K. The remaining arguments were rejected.

To understand the significance of the decision, it is necessary to place it in its historic context. Since 2003 there have been around 20 extradition requests from Russia to the UK, frequently but not exclusively for powerful businessmen who have fallen foul of factions connected to President Putin’s regime and who had fled to London. Each contested case has resulted in extradition being refused or the request being withdrawn. The common thread in these decisions was the recognition that Russia’s prison estate, particularly its remand prisons, was so poor that there was a real risk that the person sought would suffer inhuman and degrading treatment if extradited.

Extradition was also often refused for other reasons, namely concerns about the independence of the Russian prosecutor and the judiciary in politically sensitive cases. Extradition lawyers became familiar with the hallmarks of politically tainted prosecutions, including zakaznoye ugolovnoye delo (“a criminal prosecution to order”), telefonnoe pravo (“telephone justice”) and reiderstvo (“corporate raiding”). By early 2013 the UK-Russian extradition relationship had deteriorated so badly that the Senior District Judge, in a remarkable footnote to a judgment, observed that, until matters improved, any person detained in a Russian prison was at real risk of treatment in violation of Article 3. Extradition to Russia was thus placed into a state of deep freeze.

This criticism spurred Russia into action. Russia engaged with recommendations previously made by the European Court of Human Rights for improving overcrowding and living standards in its prisons. New remand prisons received planning permission. Rumours of meetings between Russian prosecutors and the Crown Prosecution Service (which acts on Russia’s behalf in UK extradition proceedings) were rife. Russia was said to be searching for a “test case” in which it could prove that its prisons were fit for purpose so that the backlog of requests for Russians exiled in the UK could be unleashed, as well as new requests activated for those whose extradition had previously been refused.

Russia’s solution was a common one deployed by states in extradition cases – it provided an undertaking to the UK’s courts that K would be held in a particular prison, and obtained expert evidence to the effect that the prison was Article 3 compliant. This expert evidence was not contradicted, and it appears that no expert on behalf of K visited the prison in order to obtain a second opinion. The Senior District Judge held that he had no reason to consider that Russia’s undertaking was given in bad faith, although he added, somewhat pointedly, that if he was to send the case to the Secretary of State for a decision on extradition, he would consider whether to seek further undertakings from Russia’s Federal Service for the Execution of Punishment and a better mechanism by which Russia’s undertakings could be monitored.

It is possible that, when making these comments, the Senior District Judge was echoing the concerns articulated earlier this year by the House of Lords Committee on Extradition, chaired by Lord Inglewood. The Committee expressed its unease about the practice of accepting undertakings from states seeking extradition as a means of ameliorating the risk that an individual’s human rights will be violated. The Committee recommended the publication of such undertakings so as to improve transparency, to allow the undertakings to be monitored and to impose sanctions if the undertakings were not adhered to.

Although the Court’s conclusion on Russia’s prisons was a qualified one, it nonetheless represents a significant breakthrough for Russia. But it would be premature to assume that the Russian rule of law is now perceived by the UK’s extradition courts as being in a state of glasnost. The Court was clear that the interests of the State in the outcome of K’s case would mean that there would be substantial pressure on a judge to convict, resulting in a real risk that K would be subjected to a flagrant denial of justice contrary to Article 6 of the ECHR. In reaching this conclusion, the Court relied particularly on evidence that the investigators and judges in K’s case were on the notorious Magnitsky list, and that the case fell within the remit of the Moscow City Court, over which there was substantial evidence of historic political interference.

The challenge now facing Russia is how it might surmount the final hurdle of Article 6. Giving an effective undertaking in relation to prison conditions, as it did in K’s case, is not straightforward. Giving an effective undertaking in relation to the fairness of a trial is even more complicated, and may ultimately prove elusive if Russia continues to issue extradition requests in politically sensitive cases, where those cases are investigated, prosecuted and tried by those who are tainted by the injustices of the recent past, or what former President Medvedev memorably denounced as “legal nihilism”.

If this new era of détente is to continue, Russia must select its next test case wisely. Until that happens, Russians resident in the UK, who are the subject of a criminal investigation in their homeland, would do well to take advice about whether they should be doing anything now to pre-empt an extradition request. The UK-Russian extradition relationship is slowly thawing. It will only be a matter of time before Russia is successful in extraditing an individual from the UK.