On 9 December 2019, the judgment of Senior District Judge Arbuthnot was handed down in the case of Russian Federation v Egorova & Ors. The case concerned warrants issued by the Russian Federation in respect of four requested persons for various unrelated offences. All four requested persons were discharged.
This judgment is the latest in a series of cases heard before the Magistrates' Court and the High Court concerning Russian prison conditions, and in particular the adequacy of monitoring mechanisms.
Legal Framework
The only bar to extradition raised in respect of all four requested persons was s.87 of the Extradition Act 2003, namely that extradition would not be compatible with their human rights as protected under the ECHR.
Section 87 of the Extradition Act states that:
(1) If the judge is required to proceed under this section ... he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.
Specifically, it was argued that the prison conditions in Russia are so poor as to amount to a violation of the requested persons' right to be protected from torture and inhumane or degrading treatment under Article 3 of the ECHR. The relevant test is whether there are substantial grounds for believing that the requested persons would face a real risk of being subjected to treatment contrary to Article 3. The burden of proof lies with the defence, who must satisfy the court that the risk is more than fanciful.
As Russia is a Member State of the Council of Europe, there is a strong rebuttable presumption that it will abide by its obligations to uphold the Convention rights. In so far as imprisonment post-conviction is concerned, that presumption remains in place. However, it is notable that in relation to Russian pre-trial detention facilities, the presumption has been displaced by a pilot judgment of the European Court of Human Rights, in which it was held that detention in any such facility would constitute a breach of Article 3.
In any case where it is alleged that extradition would violate a Convention right, diplomatic assurances would be expected from the requesting State to counter the potential breach. When evaluating the weight to be ascribed to a diplomatic assurance, the court must assess firstly the quality of the assurance, and secondly whether it can be relied upon. The ECtHR in Othman (Abu Qatada) v UK (2012) 55 EHRR set out a number of factors for the court to consider in this regard including, crucially for this case, whether the requesting State's compliance with the assurances could be objectively verified through monitoring mechanisms, and whether the requesting State has implemented an effective system to protect against torture and ill-treatment.
The question of the compliance of Russian prison conditions with Article 3 has come before the courts several times in recent years. In Shmatko v the Russian Federation [2018] EWHC 3534 (Admin), the most recent High Court decision to consider this issue, the requested person was discharged on the basis that there was ‘not merely a real risk but a very strong probability that, if extradited to the Penza region of Russia, Mr Shmatko would be held, both pre and post-trial in conditions which would involve serious violations of Article 3 and that the absence of any effective monitoring of prison conditions in Penza further increases that probability.’
Evidence and judgment
On behalf of the Russian Federation, assurances were provided as to the conditions of the specific prisons and cells that the requested persons would be held in, and for the most part these assurances were supplemented by photographs and measurements. Additionally, an update was provided in relation to the detention of Mr Dzgoev, who had previously been extradited to Russia from the UK, and was observed that there had been no breaches of the assurances provided during the UK extradition proceedings.
It was also noted that Germany had been extraditing requested persons to Russia for over 5 years, albeit with officers from the German Embassy actively monitoring prison conditions.
For the defence, the court heard from Professor Judith Pallot, who has provided expert evidence in several of the recent cases relating to Russian prison conditions. The British Embassy has not offered to monitor assurances, and so the only bodies able to carry out this task would be the local Prison Monitoring Committees (PMCs) or the Commissioners for Human Rights (CHRs). Professor Pallot’s opinion was that neither of these bodies would be effective as an independent monitor of prison conditions. She noted that since 2018, the PMCs had become dominated by law enforcement representatives and were no longer independent and impartial, and they had also reduced their activities. In relation to CHRs, she observed that they are neither independent nor effective as they are subordinate to the prison service.
The professor also referred to examples of systemic torture and ill-treatment within the prison system not being investigated, including an incident in Yaroslavl where a prisoner was filmed being beaten by 17 or 18 prison guards. This incident was referred to the prosecutor 3 days after it occurred, but nothing was done about it until the video found its way to YouTube a year later.
Having considered the evidence, Senior District Judge Arbuthnot held that there was no effective system against torture and ill-treatment in Russia. She also held that neither the PMCs nor the CHRs were capable of effectively monitoring the prison conditions, which increases the real risk of a violation of Article 3. She held that there has been no change regarding the concerns about the credibility and effectiveness of Russian assurances emphasised by the High Court in Shmatko. All four requested persons were therefore discharged.
Observations
It is notable that the key issue in this case was the lack of any effective monitoring mechanism to ensure that Russia keeps to the assurances it provides. The PMCs and CMHs are neither independent nor effective enough to adequately monitor the assurances, and at the moment no realistic alternative to these bodies has been proposed.
However, it seems that Russia has made some attempt to address the issues that have been raised in previous proceedings. Senior District Judge Arbuthnot noted that she was encouraged by Russia’s helpful engagement with requests for further information in this case, as in previous cases such engagement has often been lacking. From the photographs and cell measurements provided, she was able to conclude that in at least some of the prisons, conditions were compatible with Article 3. She was also encouraged by the fact that the prison population in Russia has significantly decreased.
The Senior District Judge concluded her judgment by asking the British Embassy to consider whether they would be willing to monitor assurances in the same way that the German Embassy currently does. If the British Embassy is agreeable to this proposal, concerns regarding effective monitoring are likely to fall away.
Georgia Beatty is a barrister practising in all areas of criminal law. She both defends and prosecutes in a wide range of criminal cases. In addition to her criminal practice, Georgia has a growing practice in extradition law and has been instructed in both Part 1 and Part 2 cases. She also accepts instructions in family proceedings.
