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20 December 2018

Recent developments in extradition and prison conditions: are assurances sufficient when the right against ill treatment and torture is at risk? 2 case studies: Mallya and Shmatko

7 mins

For those interested in extradition the last 10 days have raised important developments.

On 11 December the Chief Magistrate sitting at Westminster Magistrates Court concluded that there were no bars to extradition and referred Mr Mallya to the Secretary of State to decide on his extradition. The Secretary of State has limited powers and rarely refuses extradition when it is ordered by the court. It is no surprise that Mr Mallya yesterday confirmed that he will apply for leave to appeal the Magistrates Court decision to the High Court.

Mr Mallya argued many points against extradition but this article is concerned with his arguments that relate to prison conditions; Article 3 of the ECHR (the right not to suffer torture or ill treatment) and assurances in extradition proceedings.

Mr Shmatko was wanted by the Russian Federation. The Chief Magistrate concluded that, despite providing evidence of torture when he had previously been detained, his case could be sent to the Secretary of State because of assurances offered by the Russian Federation with regards to prison conditions.

On appeal the High Court did not agree and discharged the extradition request concluding that extradition is barred on Article 3 grounds. The High court had grave concerns about the ability to independently monitor prison conditions in Russia once an individual was extradited, especially given the fact that the monitoring unit has largely become populated by those who lack independence and the Russian authorities have “staged” visits by independent UK experts when they have attempted to monitor prison conditions for court reports. Unlike India, the Russian Federation do allow access to prison experts, but they have made such adjustments to “impress” experts such as staging rock concerts or removing hundreds of prisoners before the inspection, the inspections should carry very little weight. Fortunately the High Court has taken this point on board. Shmatko v The Russian Federation [2018] EWHC 3534 (Admin) (19 December 2018)

Whether or not Mr Mallya can take any comfort from the Shmatko appeal is questionable given that these are fact specific rulings and Shmatko’s case largely focussed on the inability to monitor prison conditions when there were grave concerns about them.  

The Indian Position

Before 2018 the Indian Government rarely succeeded in having individuals extradited from the UK largely due to the UK court’s concerns about treatment in India once extradited. These concerns primarily focussed on the appalling prison conditions reported on by those experts allowed access to inspect. In recent years the Indian Government has refused to allow inspections of prisons by UK experts for the purpose of providing expert reports in extradition cases. Westminster magistrates court took a robust view and drew adverse inferences if prison inspections were refused. This all changed with the Mallya case.

In the Mallya case, the defence prison expert was refused access to inspect the prison where Mr Mallya would be held and had to rely instead on publicly available reports and his experiences of prisons in other Indian states. In contrast, the Indian Government, who clearly had no difficulties with access, provided numerous photographs over time and a video of the newly decorated cell where it was assured Mr Mallya would be detained, which, if convicted, could presumably be many years. Assurances were also given regarding the conditions in which Mr Mallya would be kept and the possibility of him having access to his own doctor and food from outside.

The Court accepted the Indian Government’s assurances and did not accept that the specific conditions in which Mr Mallya would be held violated Article 3. Although the Chief magistrate did not state this, it was presumably accepted that, but for the assurance with regards to prison conditions and access to private doctors, extradition could not take place. The court heard evidence that the general parts of the prison which had capacity for 804 in fact held 2801 and the prison hospital was “overflowing”. It is of concerns that the cell highlighted in the video and photographs had clearly had a “makeover”. This was not a “staged” visit of Russian standards, but it will be interesting to see how the High Court views this.

How reassuring are assurances: trends in UK Extradition

Requesting States are increasingly relying on assurances but is this the correct way to approach extradition? The House of Lords in their assessment of the Extradition Act expressed grave reservations about the increasing use of assurances to offset the risk of extradition leading to human rights abuses. Assurances are almost impossible to monitor; once an individual is extradited they may well lose their ability to speak out or have their complaints heard, and are in an isolated and vulnerable position. If they are not British citizens the British Embassy has no power to visit to monitor treatment. If they are British citizens, the Embassy has insufficient resources to monitor in a meaningful way. Assurances are not regulated and it is down to bodies like Fair Trials international or family members and local lawyers to highlight any breaches of assurances. But this is a slow mechanism and little reassurance for the individual who has been extradited. Many of those who are extradited are detained for years after extradition. Who monitors those assurances or who can guarantee the assurance can be complied with if resources, personnel, political will, reduces over time? The Judges in the Shmatko appeal were whole heartedly alive to this issue and did not accept that individuals could be left in such a vulnerable position on extradition when there was clear evidence of abuses in the prison system.

Extradition operates on the basis of mutual international cooperation. It is a two- way process. To refuse extradition to a country may mean that a UK request is not honoured. It is of note that Westminster Magistrates Court has heard from numerous experts regarding the appalling nature of prison conditions in countries such as Russia, yet assurances are accepted and extradition ordered to ensure that UK does not become a “safe haven”. Membership of the Council of Europe has almost made those countries immune to criticisms regarding prison conditions by the courts on the basis that members of the Council will comply with assurances. The same now appears to apply to countries where human rights concerns exist but there is an extradition arrangement, such as India.

However, following yesterday’s Shmatko ruling in the High Court, the Courts may well be less willing to accept assurances from Members of the Council of Europe where it can be clearly demonstrated that Article 3 will be violated and assurances cannot be complied with. The High Court did not “reconsider the benefit of doubt afforded to the Russian Federation in cases of this kind”  as they did not feel the need to, given their clear conclusion that Article 3 would be violated due to the lack of independent monitoring of the prisons, but the events of Salisbury must have weighed on their mind.

Have assurances run their course?

Arguably, rather than accepting assurances, a way forward to ensure improvements in prison conditions and non violation of human rights abuses for all those detained, not just those to be extradited, would be to refuse extradition until prison conditions are improved. This would have to be on a case by case basis and with the benefit of expert evidence, but it could have a powerful impact. Commission for the prevention of Torture (CPT) reports and pilot judgments have seen prison conditions improve, but more could be done through international pressure. Mutual cooperation is not only about the efficient administration of justice, but also the raising of standards to ensure that all those sharing the fate of individuals protect their basic human rights in the process. Robust judgments in the extradition arena could well play a role in this. Maybe the Shmatko judgment is a start.

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