QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE HICKINBOTTOM
|GOVERNMENT OF UKRAINE||Respondent|
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Mr J Hardy QC and Mr D Sternberg (instructed by CPS Extradition Unit) appeared on behalf of the Defendant
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"Prison and detention centre conditions remained poor and generally did not meet international standards. Overcrowding; abuse; inadequate sanitation; and lack of light, food, water and medical care were persistent problems. The government permitted monitoring visits by independent human rights observers, and such visits occurred during the year."
"We have thus concluded that imprisonment in the Ukraine is likely to expose a detainee to the real risk of inhuman or degrading ill-treatment that would cross the Article 3 threshold. We recognise that the background materials placed before us contain some lacunae, but equally that they are all that has been seen to be relevant after considerable efforts have been taken by the parties to gather evidence. Accordingly, we consider that on the general issue of prison conditions in the Ukraine, the conclusion we have just reached can stand as country guidance."
Professor Bowring concluded as follows:
"56. In these circumstances, it is my opinion, based on my own observations and discussions, and on the authoritative sources and news publications set out above, that imprisonment in the Ukraine would still be likely to expose a detainee to the real risk of inhuman or degrading ill-treatment that would cross the Article 3 threshold.
57. In my opinion the Defendant will if returned be returned immediately to prison in the shocking conditions already examined. He will serve his sentence in a 'labour colony' - probably hard labour - also in the conditions mentioned.
58. The Ukrainian penitentiary system is a disgrace and shows no sign of improvement. In my opinion there is a high risk that if returned and, as will certainly be the case, sent to a labour colony to serve his sentence, the Defendant will suffer treatment amounting to a violation of Article 3."
"16. I do not doubt that Professor Bowring is an expert of considerable experience. Likewise, his 'triangulation' approach of checking news reports to see if they are contradicted by official sources and checking the website of the prison services and extracting information from CPT reports etc is unimpeachable but this witness has not visited any establishment in the Ukraine for 10 years. He is not in a position to be specific as to what will happen to this defendant."
The District Judge also found that the Professor's references to press reports concerning Prime Minister Tymoshenko and political prisoners were not relevant to the Article 3 complaint. Then she said this:
"17. In effect, Mr Keith submits that the prison conditions are so poor in the Ukraine that they automatically breach Article 3 and that all Human Rights are so disregarded that any Ukrainian request for extradition should be refused. Thus, it would follow that the Secretary of State should not be accepting requests from the Ukraine and that it should cease to be a designated territory. I do not have the power to do that. In any event, I do not find the grounds to substantiate an Article 3 breach."
I have some difficult with this reasoning. Of course the District Judge was not being asked to declare or order that the Secretary of State should accept no extradition requests from Ukraine or that Ukraine should cease to be designated for the purpose of Part 2 of the 2003 Act; but the fact that Mr Keith's submissions mightmilitate against extradition to Ukraine does not of itself begin to demonstrate that his case is not made out, or that the appellant's Article 3 rights would not be violated if he were returned.
District Judge Wickham concluded:
"23. I find as a fact that this document is persuasive and more recent in its statement than that of Professor Bowring. It is incumbent upon me to accept the assurances of the RJA [that is, of course, the Ukraine authorities]. I reject the Article 3 submissions and direct that this case be sent to the Secretary of State for her consideration."
"The most serious failure of co-operation was encountered during the visit to the Secure Ward of the Kyiv Municipality Emergency Hospital. The delegation's access to the ward was delayed for some ten minutes. Police officers present in the Ward told the delegation that patients were never handcuffed to their bed; however, when the delegation subsequently checked the CCTV recordings of the Ward, it became apparent that, during the ten minutes it had had to wait outside, police officers had hastily removed the handcuffs of all the patients held in the Ward. From the fact that patients themselves categorically denied the use of handcuffs, the delegation cannot but conclude that police officers had exerted pressure on them in order not to reveal the truth to delegation members. The delegation is very concerned by the fact that the practice of handcuffing patients to hospital beds has continued after the 2009 visit, despite the assurances given to the contrary by the Ukrainian authorities in their response to the report on that visit."
"The conditions of detention are quite simply appalling in many of the other units of the two SIZOs. Numerous cells are in a poor state of repair and have only very limited or no access to natural light at all. In addition, the delegation is concerned by the severe overcrowding observed in both establishments.
The delegation acknowledges the efforts made by the Ukrainian authorities to provide additional living space by constructing new pre-trial establishments. However, despite the fact that some 1,500 prisoners have recently been transferred to new establishments from the Kharkiv SIZO, the situation remains very problematic in both SIZOs. In order to illustrate the scope of the problem, I would like to give you just one example. At the Kharkiv SIZO, the delegation found a cell measuring some 45 mē which is currently accommodating 44 prisoners (and on occasion accommodates even more). There are only 28 beds available which means that prisoners are obliged to sleep in turns. They also have to store their personal belongings and wash and dry their laundry inside the cell.
It would appear that excessive resort to remand detention and lengthy court proceedings have aggravated the problem of overcrowding."
"serious problems included police abuse and deaths in custody, beatings and torture of detainees and prisoners, and an inefficient corrupt judicial system. In addition, the following problems were reported: harsh conditions in prisons and detention facilities, arbitrary and lengthy pretrial detention, government pressure on nongovernment organisations (NGOs), and pervasive corruption in all branches of government."
I will also set out these further extracts from the State Department report cited by Professor Bowring:
"Prison and detention centre conditions remain poor. Overcrowding, abuse, inadequate sanitation, and the lack of adequate light, food, and medical care were persistent problems, although prisoners had some access to potable water. The government permitted monitoring visits by independent human rights observers, and some visits occurred during the year."
Then a little later:
"Overcrowding in prisons and pretrial detention centres continued to be a problem. For example, as of September, there were 3,899 inmates at Kyiv's Lukyanivskiy detention centre, which has capacity for 2,850. As a result, 1,049 detainees were forced to sleep on the floor or rotate their sleeping places with cellmates.
According to a December 2010 report by the Prosecutor General's Office overcrowded conditions at pretrial detention facilities operated by the State Penitentiary Service in Crimea, Donetsk, Luhansk, Kharkiv, Kherson, and Kyiv, were especially difficult. The law sets the average space for detainees at 26.9 square feet. According to the State Penitentiary Service, at year's end 37,632 detainees were held in facilities with a capacity for 34,817, making the actual average space per detainee 24.8 square feet.
At years' end an estimated 4,052 persons in custody had tuberculosis, according to the SPS. In tuberculosis hospitals under the responsibility of the SPS, 42 per cent of patients were terminally ill with tuberculosis, and 44 per cent of patients were terminally ill with HIV/AIDS, according to the most recent available statistics. The penitentiary service acknowledged that tuberculosis was a widespread problem because of poor conditions and inadequate medical resources for examining and treating tuberculosis-infected persons in pretrial detention facilities."
"25. I believe that there is a high risk of inhuman and degrading treatment for the Requested Person [if] incarcerated in Ukrainian prison. Besides, we can speculate that since it would be known to prison administration that Mr Lutsuik was hiding from justice in the UK and was earning money more than an average Ukrainian, they would try to get as much money as possible from him. Since Mr Lutsuik will be sent to a colony of strict regime, it is highly likely that he would experience different forms of torture and degrading treatment from hunger to intimidating by guarding dogs, from lack of proper medical treatment to being infected, beaten or raped."
"A relativist approach to the scope of article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers (Lord Bonomy, 26 April 2004) that in Scotland the practice of 'slopping out' (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If, however, it were applied in the context of extradition, it would prevent anyone being extradited to many countries poorer than Scotland, where people who are not in prison often have to make do without flush lavatories."