Jessica Parker quoted in the media on HMRC

Last week 32 year old Maxim Vintskevich became the first person in a decade to be successfully extradited from the UK to Russia. The Prosecutor General’s office in Moscow hailed the news as a breakthrough in Russia’s legal and diplomatic relations with the UK. Whilst the optimism is understandable, the outcome of Mr Vintskevich’s case masks deeper tensions in this most troubled of extradition relationships. To understand why it is unlikely to set a precedent for future extradition cases, it is necessary to unravel the recent history of Russia’s extradition requests in the UK’s courts as well as developments in the European Court of Human Rights (“ECtHR”) in Strasbourg.

The breakdown in extradition traffic between the UK and Russia began shortly after Vladimir Putin became President in 2000. The Prosecutor General’s office subsequently sought the extradition of a sequence of individuals, typically but not exclusively wealthy businesspeople who had fled to the UK. With one exception, these requests all ended in humiliating defeat for Russia (the exception was a woman alleged to be involved in drugs trafficking: she was extradited but absconded before she could stand trial). The UK’s extradition courts refused these extradition requests on the basis of concerns that the criminal proceedings were politically motivated and that the human rights of the individuals sought would be violated, either in Russia’s prisons and/or its criminal courts. Extradition judges and lawyers became familiar with some of the common hallmarks of these proceedings, including zakaznoye ugolovnoye delo (“a criminal prosecution to order”), telefonnoe pravo (“telephone justice”) and reiderstvo (“corporate raiding”).

Against this background one can understand why the extradition of Mr Vintskevich may seem to herald a period of détente in the UK’s extradition relationship with Russia. However, it would be a mistake to assume that the tide has turned. This is not simply because Mr Vintskevich, in contrast to nearly all defendants in previous Russian requests, is accused of a crime apparently bereft of political circumstances. Rather, it is because his case needs to be interpreted in the context of recent developments in the ECtHR.

To say that the ECtHR is currently clogged up by complaints against Russia is something of an understatement: the ECtHR’s provisional annual report for 2012 stated that there were nearly 30,000 pending applications against Russia, which accounts for almost 25% of the Court’s total case load. Moreover in 2012 there were 75 findings by the ECtHR that Russia was in violation of Article 3 of the European Convention on Human Rights (“the Convention”), the article that prohibits torture or other cruel, inhuman or degrading treatment. These findings account for just over 25% of the total number of Article 3 violations found against all contracting states last year.

Since 2004 the ECtHR has intermittently used a so-called “pilot judgment” procedure where it faces significant applications deriving from the same root cause. The ECtHR selects one such application for priority treatment (the pilot judgment) and seeks to achieve a solution that extends beyond the particular case so as to cover all cases raising the same issues. The pilot judgment gives a clear indication to the contracting state as to how it can bring about the creation of a domestic remedy capable of eliminating the systemic problem highlighted by the Court as giving rise to the repetitive cases. The pilot judgment procedure is thus based on pragmatism as well as principle: it clears the Court’s backlog of applications whilst positively encouraging the contracting State to remedy the systemic problem by offering concrete recommendations as to how that might be achieved. It was only a matter of time before the pilot judgment procedure was applied to the welter of applications alleging breaches of Article 3 by Russia.

At the beginning of 2012 the ECtHR handed down such a pilot judgment in Ananyev & others v Russia. The Court described Russian prisons as a “recurrent structural problem” and annexed a list of 90 other judgments finding violations of Article 3, commenting that: “the set of facts underlying these violations was substantially similar: detainees suffered inhuman and degrading treatment on account of an acute lack of personal space in their cells, a shortage of sleeping places, unjustified restrictions on access to natural light and air, and non-existent privacy when using the sanitary facilities.” The Court then went on to say that Article 3 compliance required that:

(a) Each detainee must have an individual sleeping place in the cell;

(b) Each detainee must have at his disposal at least three square metres of floor space; and

While recognizing the constraints Russia faced in fixing the problem (lack of resources, lack of transparency in prison management, and the scale of the challenge of updating antiquated facilities and construction of new ones), the Court nevertheless observed that there were a number of fairly simple and cost-efficient measures that could be taken immediately, such as removal of metal shutters from windows, adding curtains to the lavatory pans, increasing the allotted exercise time and the ability of inmates to shower, and changes to the ability of prisoners to file a complaint with a supervisory body. Russia was given a six month time limit to produce a binding schedule for the adoption of measures to comply with the pilot judgment and a 12 month limit to grant “sufficient redress” to all applicants who had lodged claims with the Court prior to judgment.

The Ananyev pilot judgment has had an impact in the UK’s extradition courts. At the end of last year Westminster Magistrates Court in London refused the extradition to Russia of a businessman facing allegations of fraud. In its judgment the Court explored at length whether there would be a breach of Article 3 if the defendant was extradited, recognizing that this issue was “likely to arise in other extradition requests from the Russian Federation.” Relying heavily on the ECtHR’s decision in Ananyev, the extradition judge accepted the defence submission that “any person held in a Russian prison is at real risk – indeed at clear risk – of degrading treatment.” The same conclusion was reached in Westminster Magistrates Court in a separate Russian extradition request only last week. For the time being at least, a defendant who seeks to contest extradition to Russia on the basis that conditions in Russian prisons breach Article 3 of the Convention is overwhelmingly likely to succeed, even if the criminal proceedings cannot be shown to be politically motivated.

Which brings us back to the curious case of Mr Vintskevich. It is not clear whether he consented to extradition (always an option for a defendant at a preliminary hearing) or whether he was simply not advised about the strength of the Article 3 argument. If the latter, the outcome of his case is a salutary lesson in the importance of exploring the impact of recent international jurisprudence on domestic extradition cases.

Whatever the particular circumstances of Mr Vintskevich’s case, it is clear that it will take more than one successful extradition to overcome a decade of mistrust in Russia’s criminal justice system, both in the UK’s extradition courts and the ECtHR. But that legacy can be overcome. The virtue of the ECtHR’s pilot decision procedure is that it actively seeks to promote positive change. It gives Russia the opportunity to demonstrate to the outside world that it has taken verifiable steps to improve its prisons and to respect the fundamental rights of those detained there. It is therefore encouraging that Russia appears to have genuinely engaged with the pilot decision by delivering a detailed report to the Council of Europe in October 2012.

The report claims that the number of detainees held in Russia’s prisons has decreased significantly in recent years, and anticipates that a new law will be passed before the end of the 2013 (provisionally entitled “On the Detention in Custody of Persons Suspected or Accused of Criminal Offences”) in direct response to the Court’s findings in Ananyev, which will include a requirement that each detainee is allocated a minimum of four square metres of personal space. The report also notes that there are plans to build a further 26 new remand prisons by the end of 2017. The claims made in the report will need to be carefully scrutinised. International NGOs such as Penal Reform International have already questioned how it will be implemented and there has been scepticism expressed in the Russian media as to how the reforms will be financed. But it is a framework upon which Russia can seek to rebuild its damaged reputation.

Ultimately it is to be hoped that Russia can achieve genuine progress in implementing its report. Where the Prosecutor General’s Office makes allegations in good faith against those who have fled to the UK, it is in the interests of justice for extradition to take place. But that will only happen if the UK’s extradition courts are satisfied that the defendants will not be subjected to degrading treatment in Russia’s prisons. In a week when the Prosecutor General’s Office has insisted on proceeding with the posthumous prosecution of Sergey Magnitsky, the auditor of Hermitage Capital who testified that there was large-scale systematic theft from the Russian State sanctioned and carried out by Russian officials, and who subsequently died in November 2009 at the age of 37 in Butyrka prison in Moscow after failing to receive treatment for a number of serious medical conditions, one can understand why it will take time for extradition judges in London to accept that Russia is a country which is genuinely committed to the rule of law.

Corker Binning is a law firm specialising in business crime and fraud, regulatory and general criminal work of all types. For more information about how we can help you, visit our extradition page or call us on 0207 353 6000.