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18 May 2020

The end of the road for Russian extraditions?

4 mins

Extradition between the Russian Federation and the UK has had a chequered history, but the recent combined cases of Smychkovsky, Egorova, Tsurcan and Kindrachuk may well have resulted in a halt on extraditions to the Russian Federation until fundamental changes are made to the prison system and the ways in which treatment in prisons is monitored.

All parties had very different backgrounds, were accused of completely different offences and were from different regions but their common argument was that they faced a real risk of ill treatment and torture in the prison system (Article 3 ECHR) and assurances issued by the Russian Federation that the monitoring of those prison conditions was sufficiently independent and reliable were insufficient.

The Chief Magistrate, having heard similar arguments in a number of Russian cases prior to this (Yurov, Shmatko) initially took the view that the independent Public Monitoring Commission (PMC) could ensure assurances were complied with and those extradited would not suffer ill treatment. This view was fortified by the fact the  Russia Federation is a member of the Council of Europe and it was in their interest to ensure assurances were complied with so that extraditions took place in the future. But the approach of the courts altered following the successful High Court appeal of Shmatko where a change in Russian legislation regarding the composition and powers of the PMCs was exposed and the PMC largely lost their power and independence.

Following the discharge of the extradition warrants of Russia v Zmikhonovsky and Russia v Sokolov on the basis that extradition would violate Article 3, where expert evidence was provided by Professor Judith Pallot, the Chief Magistrate combined Smychkovsky and others to enable the Russian Federation to comprehensively respond to the criticisms made by Professor Pallot and the legal teams.

The Russian Federation did engage, implicitly acknowledging that the PMC would not be able to meet the court’s concerns and instead offered Regional Commissioners of Human Rights to take responsibility for ensuring the compliance of assurances in those institutions where the individuals would be detained.

Professor Pallot gave evidence that such Commissioners were largely ineffective and produced graphic evidence of the torture of an inmate which was not acted on by the Commissioner (although they were aware of it) until footage of the torture was exposed on social media.

Having viewed further graphic footage of torture in a number of Russian penal institutions and accepting Professor Pallot’s evidence that torture and mistreatment is systemic throughout the prison estate, the Chief Magistrate concluded that there was a real risk that extradition would violate Article 3 due to the “systemic violence in many of the penitentiary institutions” and the lack of an “effective system against ill treatment and torture”.

The reason these joined cases are so significant is that extradition and violations of Article 3 have previously largely focussed on overcrowding. The acceptance that ill treatment and torture are systemic is a major change in the court’s approach. Given the significance of this ruling, the Russian Federation, unusually, applied for permission to appeal the Chief Magistrate’s decision. In March 2020 the High Court took very little time comprehensively refusing  permission and the Russian Federation did not attempt to renew.

These joined cases have huge significance for future extraditions to Russia. The conclusions of the Chief Magistrate, fully supported by the High Court make it  difficult to see how a UK court will allow any further extraditions until there is a fundamental overhaul to the treatment of those detained and the ability to independently monitor. This will take a seismic legal, cultural and structural shift.

Kate Goold at Bindmans acted for Mr Smychkovsky in the Magistrates Court with Aaron Watkins from Cloth fair chambers

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