IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE BUXTON
MR JUSTICE WILSON
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant/Respondent|
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MR C JACOBS (instructed by Dare Emmanuel) appeared on behalf of the Appellant
MR T OTTY (instructed by Treasury Solicitors) appeared on behalf of the Respondent
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"... in this latter category of case an applicant will only be able to demonstrate substantial grounds for believing that there is such a real risk if he can point to a consistent pattern of gross and systematic violation of rights under Article 3."
"Absent evidence to show that the appellant was at risk because of his specific circumstances, there could be no real risk of relevant ill-treatment unless the situation to which the appellant would be returning was one in which such violence was generally or consistently happening."
"It will be for the Tribunal to determine, in the light of all the evidence, whether there are substantial grounds for believing that the appellant will face a real risk of treatment that violates Article 3 if returned to a Russian prison. Central to that investigation ... will be a consideration of the extent to which conditions in the Russian prison system have or have not improved since Kalashnikov."
That was the process that was followed.
"11. We have been referred to a great deal of material post-dating the facts which were the subject of complaint in Kalashnikov, in order to enable us to make findings on the general circumstances in Russian prisons at the present time. One important and wide-ranging document is the report of a visit to the Russian Federation carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). That report was published in June 2003, although the visit on which it was based had taken place some eighteen months previously. The published report, however, is accompanied by the Russian Government's response, which is not dated in any very obvious way but must follow the CPT's submission of the report in July 2002. We have also looked at US State Department reports, CIPU reports, reports of relevant United Nations Committees in 2002 and 2003, an interim resolution of the Council of Europe's Committee of Ministers following the judgment in Kalashnikov, an Amnesty International report of 2002 and the most recent entry in Amnesty International's yearbook, the United Nations High Commissioner for Human Rights' Standard Minimum Rules for the Treatment of Prisoners, a letter to the European Union from Human Rights Watch, dated 19 March 2004, part of a UNHCR paper on claimants from the Russian Federation, dated May 2004, and other documents put before us by the parties.
12. There can be no conceivable doubt that the general conditions in prisons in the Russian Federation have shown improvements in the period since Kalashnikov himself was detained. For this reason, older materials are of very little value save for purposes of comparison. The Human Rights Watch letter, which is generally critical of the human rights situation in the Russian Federation, says that 'As of today, the only institution that has seen truly significant reform is the prison system.'
13. Another feature of the materials we have read is that they appear to show that the conditions in SIZOs are liable to be rather worse than those in other detention facilities. It will be recalled that the majority of Kalashnikov's own detention was in a SIZO. The Appellant's case, however, is based on the inevitability of him serving a prison sentence for crime. Such sentences are not generally served in SIZOs, which are largely used for detention pending trial, although they may occasionally be used for holding sentenced prisoners before they are allocated to a penal colony. One of the factors specifically mentioned by the Court in Kalashnikov was the length of time for which the Claimant had been held in poor facilities. It is not, and indeed cannot be, part of the Appellant's case that he is at risk of being held for a long time in a SIZO.
14. The evidence before us shows with great clarity that the Russian prison system no longer suffers the severe problems of overcrowding that were identified in Kalashnikov and by international observers in the late 1990s and a little later. The amount of space available per prisoner now contrasts very favourably with that which Kalashnikov was allowed to occupy in his SIZO in 1995 to 1999. The CPT delegation records at paragraph 45 that progress was being made in addressing the issue of overcrowding and recommends an allowance of 4mē per person. In its reply, the Russian Government was able to say that in the Vladivostok SIZO 1, which the delegation had visited, the allowance was now 3.8mē. In the US State Department report for 2002, it is said that the introduction of the new Criminal Procedure Code (which came into force on 1 July 2002) had had the effect of 'virtually eliminating the problem of overcrowding in [SIZOs]'. The delegation of the Russian Federation reporting to the Human Rights Committee of the United Nations in October 2003 summarised improvements made in Russian prisons since 1998. Only three percent of detention centres (that is to say, SIZOs) were currently overcrowded compared with seventy percent in 2000. Each detainee throughout the system had access to 4mē of living space. A human rights service had been established to monitor the observance of human rights in the prison system. The prison establishments were open to international inspection. In commenting on the report, another member of the Committee remarked that although progress was commendable, some of the problems of prison conditions related to health and sanitation. On 6 November 2003, the Human Rights Committee noted that it remained concerned about reports of poor hygiene and violence by prison officers in some places of detention, and encouraged the Russian Government to continue to make progress. The US State Department report for 2003 (published February 2004) again records the virtual elimination of overcrowding, although there is reference to health concerns in detention facilities. A minute from the British Foreign and Commonwealth Office, dated 9 June 2004, again records a fall in the Russian prison population. So far as the health of prisoners is concerned:
'5. Conditions in some prisons, and especially in pre-trial detention centres (SIZOs) remain very poor with overcrowding, poor diet and little exercise contributing to sanitation and health problems. Deputy Head of the Prison Service, Alla Kuznetsova, said in October 2003 that almost three quarters of prisoners (590,000 people) suffered from serious health problems. She said that one-third of inmates had mental problems, 26,000 had syphilis, 1,500 had hepatitis and 74,000 had TB. Public health measures have had some effect in stemming the spread of TB (eg Deputy Minister Kalinin noted in November 2003 that the incidence of TB had reduced by 27% in 2003), but have not contained the spread of HIV. HIV/AIDS infection rates now stand at around 37,000 prisoners, up from 5,000 in 2000.'"
"Ms Nicholas [counsel then representing Mr Batayav] conceded, as she had to, that overcrowding cannot now be seen as a major or universal problem in Russian prisons. She submitted, however, that the remaining problems, in particular those relating to health, were such as to show that it would still be a breach of Article 3 to cause anyone to be subject to the prison regime in Russia."
"If the risk of his contracting various diseases is elevated by his being in prison, that is clearly not something which ought to be ignored, although it is right to say that we have no clear evidence of the level of any increase of risk. We very much doubt whether there is anything in the evidence before us which would entitle us to say that there is a real risk that the Appellant will suffer from any of the diseases mentioned as a consequence of his detention in a Russian prison or penal colony."
That again was a conclusion that, in my judgement, they were entitled to reach.
"It is submitted that the findings of the Tribunal are not sustainable on the objective evidence. The primary sources of objective material indicate that overcrowding remains a problem in the Russian penal system. Accordingly the Tribunal has applied an erroneous approach to the evidence, such that the determination is flawed. The determination has been designated a country guidance case and therefore will be followed by Adjudicators in the majority of cases. In the circumstances it is submitted that the matter raises an issue of public importance, such that permission should be granted."
It was that consideration that caused a single Lord Justice of this court to give permission.
Order: Appeal dismissed. Assessment of the appellant's publicly funded costs.