Whilst the UK government has no hesitation in accusing Russia of using a chemical agent in an attempted murder on UK soil, the English courts still find no reason to doubt the truthfulness and reliability of the Russian Federation when it comes to providing assurances in extradition cases.
In 2012 the ECtHR handed down its decision in Ananyev v Russia. It found that the applicants had been subjected to inhuman and degrading treatment whilst detained in Russian prisons, a finding it had already made in 80 cases in the preceding 10 years. It also went further and adopted the "pilot judgment" procedure; a measure adopted only when a chronic and systemic problem has been identified.
On the back of this judgment, the English courts continued to refuse extradition on the basis that requested persons were at real risk of suffering inhuman or degrading treatment in Russian prisons. A significant judgment was handed down by Senior District Judge Riddle in Russia v Fotinova which ended with a postscript that all extradition requests from Russia would be refused until there was evidence that conditions had improved or until there were specific undertakings about the conditions in which the prisoner would be held. This was the position of the courts until the case of Russia v Kononko. This was the first case where the Russian authorities really engaged with the UK authorities in extradition proceedings. Assurances were provided that Mr Kononko would not be subjected to inhuman or degrading treatment and permitted a British prison inspector to visit SIZO 5 where Mr Konoko would be held. Professor Rod Morgan visited SIZO 5 (at the same time, and the cynics may say not coincidentally, Gerard Depardieu was giving interviews to the Russian media proclaiming prisons in Russia were better than those in France) and found that the prison was not overcrowded. In light of this finding the Senior District Judge concluded that there was no real risk of inhuman or degrading treatment.
Mr Kononko's extradition was halted on other grounds, however this case showed a marked change in the way Russian cases were approached. It appeared that the judge would have been willing to rely on the assurances provided by the Russian Federation, despite a catalogue of evidence of Russia's failures to comply with its international obligations on a number of occasions.
There wasn't long to wait before it was discovered that Senior District Judge Riddle's trust had been misplaced. In the case of Russia v Koralev it transpired that just days prior to Professor Morgan's visit to SIZO 5 the Russian authorities had decanted 160 prisoners in order to give the impression that it wasn't severely overcrowded. This led to the then Deputy Senior District Judge Arbuthnot to express serious concerns that Professor Morgan had not been told the truth and she went on to say, "This would be a concern when considering any assurance in relation to prisons given by the [Russian Federation]." Extradition was refused on the basis that the assurances provided were too vague, but not necessarily that the assurances couldn't be trusted.
The most significant development in the UK-Russia extradition relationship since Kononko was the decision in Dzgoev v Russia. The Russian authorities provided assurances that Mr Dzgoev would not suffer inhuman or degrading treatment, that he would be held in conditions which do not breach Article 3 of the European Convention on Human Rights (" the Convention") and that he would receive appropriate medical care. The court expressed its "serious concerns about the phrasing and reliability of the assurances offered to date" and had stated that the mechanism for monitoring the assurances was "less than satisfactory". Of particular concern for the court was the apparent erosion of the independence of the Public Oversight Commission ("ONK") with the removal of human rights campaigners from its board.
However, despite these reservations, and despite the previous actions of the Russian Federation in Kononko and its reputation for non-compliance with international obligations, the High Court did not refuse the extradition request and, instead, took the unusual step of drafting further assurances that it required from the Russian Federation in relation to the conditions in which Mr Dzgoev will be detained. The Russian authorities seized this opportunity and provided the assurances requested. Mr Dzgoev's appeal was dismissed and he was extradited to Russia in October 2017.
District Judges at Westminster Magistrates' Court, in subsequent extradition cases brought by the Russian Federation, used this decision as a basis to accept further assurances from the Russian authorities regarding prison conditions.
World events involving the UK and Russia have moved on dramatically in the past couple of months. Given that diplomatic relations between Russia and the UK are on par with Cold War era hostilities, together with the international outrage caused by the Skripal poisoning, one would be forgiven for thinking that the UK courts would be less inclined to accept assurances given by Russia. Not so, according to the recent High Court judgment in Ioskevich v Russia. Once again, the reliability of assurances provided by Russia was a consideration for the bench. In accepting the assurances provided by the Russian Federation, Green J found that there was real force in the argument that if Russia were found to be an untrustworthy partner when it comes to the giving, observing and monitoring of assurances provided to the courts in order to secure extradition, then this would impact negatively upon the willingness of the courts in the UK to accept assurances in the future. This would provide the Russian authorities with a powerful incentive to honour the assurances and therefore the appeal was dismissed and the order for Mr Ioskevich's extradition upheld.
Although this decision may raise some eyebrows and questions may be asked as to how the court arrived at the decision it did, it highlights the independence of the English judiciary. In determining the issues in the case, the court was confined to strict legal principles. As Russia is a Council of Europe member and signatory to the Convention there is a (rebuttable) presumption that it will comply with the obligations imposed by such membership. Although the current political landscape in requesting states may affect their ability to comply with its obligations (as was seen in Turkey following the attempted coup in the summer of 2016 when it derogated from some of its obligations under the Convention), politics does not, and should not, influence the judiciary's decisions.
It would appear that if and until, Russia breaches one of the assurances provided in either Dzgoev or Ioskevich the English extradition courts will continue to accept assurances provided. Only time will tell how committed Russia is to honouring these assurances, however willingness to comply does not necessarily mean compliance follows. The recent death of Valery Pshenichny whilst in pre-trial detention in a St Petersburg prison shows how attitudes and actions at a local level could derail any promises given by the central government. Pshenichny was a Russian entrepreneur described as 'Russia's Elon Musk'. He was suspected of embezzling 100 million rubles from a project on the construction of military submarines for the Russian Defence Ministry. A state forensic pathologist's report detailed how Pshenichny's jailers had tortured and then killed him. The report found that he had suffered electric shock burns in his mouth, stab wounds to his body and his spine was broken. Prison authorities have taken issue with the report but have not yet disclosed any further details of his death. This was an apparent murder of a high-profile figure in a prison in a major Russian city. If an incident of this magnitude can happen in circumstances such as this, then serious questions will be asked in any subsequent extradition cases before the English courts regarding the safety of persons in detention.
Originally published 20 April 2018
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