QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GREEN
| ARBI ALIKOVICH ZARMAEV
|- and -
THE GOVERNMENT OF
THE RUSSIAN FEDERATION
Peter Caldwell (instructed by Crown Prosecution Service Extradition Unit) for the Respondent
Hearing date: 18 October 2017
Crown Copyright ©
Lord Justice Hickinbottom :
i) found that the Appellant's personal involvement in the Chechen wars to be "improbable" (see -);
ii) noting that the Russian Federation was a party to the ECHR and the Extradition Convention, considered that the assurances received from the Russian authorities would effectively eliminate any risk of a breach of article 3 of the ECHR, either as a result of the conduct on the investigation and trial or his detention (see  and following)); and
iii) held that the article 6 part of the application to be manifestly ill-founded (see -).
The judgment of the ECtHR was handed down on 27 February 2014, becoming final on 27 May 2014.
i) The Appellant's version of events generally lacked credibility.
ii) He had probably not been an active rebel combatant in the Chechen wars.
iii) He had no association with the murder of General Malofeyev.
iv) The inconsistencies in the accounts he had given could not be explained by his mental condition or the drugs used in respect of his mental condition.
v) On return to the Russian Federation, there was no real risk of him suffering torture or inhuman or degrading treatment contrary to article 3 of the ECHR, either during the course of the investigation and trial or otherwise whilst he was in detention.
vi) There was no risk of the Appellant suffering a flagrant denial of justice contrary to article 6 of the ECHR.
i) The Appellant's account was not capable of belief, such that the judge "formed the view that the [Appellant] is lying to the extent that nothing he says can be believed" (pages 14-17 of his judgment, the quotation coming from page 17).
ii) Whilst the judge said he could not be sure, he considered it "is highly unlikely that [the Appellant] was a fighter in the first [Chechen] war, and even more unlikely that the Russian authorities should think he was a fighter in that war" (page 20). There was no evidence that he fought in the second war, and the possibility that he did was "remote" (page 22).
iii) In respect of the murder of General Malofeyev, the judge found the Appellant's account to be untrue; and there was no reason to believe the Russian Federation held him responsible (page 23).
iv) The judge accepted that the Appellant suffered from PTSD; but found that that was no impediment to him giving a clearly expressed account, and the Appellant's condition was not the cause of many of the discrepancies in his evidence (page 26).
v) The judge proceeded on the basis that, without assurances, there would be a real risk that the prison conditions in Russia under which the Appellant would be detained would breach article 3 of the ECHR (page 27); but the assurances given by the Deputy District Prosecutor General of the Russian Federation (which were in similar terms to the diplomatic note which communicated the extradition request to Belgium, considered adequate by the ECtHR) were sufficient to eliminate the risk of the Appellant being subject to treatment that breached article 3 (pages 30-31).
vi) There were no grounds for considering the Appellant would be tortured or beaten into confessing – or that Ms Dukaeva or any witness had been beaten to obtain evidence against him – but, in any event, there were "no grounds for believing that a Chechen jury would not comprehensively reject evidence obtained by torture" (page 28). There was therefore no risk of a breach of article 6 of the ECHR.
vii) British diplomats will be able to monitor the Appellant's position in Chechnya (page 33).
viii) It would be unlikely that the Appellant would be removed for questioning from a SIZO (pre-detention facility) to (e.g.) a police station where ill-treatment would be more likely (page 6).
ix) None of the other grounds relied upon by the Appellant had been made good.
The Grounds of Appeal
The Appellant's Application to Admit Further Evidence
32. In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available…. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing….
33. The court, we think, may occasionally have to consider evidence which was not available at the extradition hearing with some care, short of a full rehearing, to decide whether the result would have been different if it had been adduced. As Laws LJ said in The District Court of Slupsk v Piotrowski  EWHC 933 (Admin) at , section 29(4)(a) does not establish a condition for admitting evidence, but a condition for allowing the appeal; and he contemplated allowing fresh material in, but subsequently deciding that it was available at the extradition hearing. The court will not however, subject to human rights considerations which we address below, admit evidence, and then spend time and expense considering it, if it is plain that it was available at the extradition hearing. In whatever way the court may deal with questions of this kind in an individual case, admitting evidence which would require a full rehearing in this court must be regarded as quite exceptional.
34. Section 29(4) of the 2003 Act is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in [Miklis v Deputy Prosecutor General of Lithuania  EWCA 1032 (Admin)], there may occasionally be cases where what might otherwise be a breach of the [ECHR] may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. The justification for this would be a modulation of section 29(4) with reference to section 3 of the Human Rights Act 1998…".
i) the evidence did not exist at the time of the extradition hearing, or was not at the disposal of the appellant and which he could not with reasonable diligence have obtained; or
ii) the evidence, if admitted, might avoid a breach of the ECHR; and, in either case
iii) there would have been a real prospect of the result of the extradition hearing before the magistrate being different had the evidence been before him.
The Parties' Submissions
The Medical Evidence
Expert Evidence on Russian Law and Procedure
i) It would be unlikely that the Appellant would be removed for questioning from a SIZO to a police station or other place where ill-treatment would be more likely.
ii) At any trial, the Appellant would be able to give oral evidence in his own defence (paragraph A1 of his report dated 16 February 2016).
iii) Ms Dukaeva could be compelled to give evidence. However, if the Russian authorities were unable to produce Ms Dukaeva to give evidence, it is "quite likely" that the case against the Appellant would be dropped; although there would be some risk that he would not be released immediately, and could spend a substantial time in detention (paragraph A3).
iv) If extradited, the Appellant would be entitled to trial by jury on the charges of which he stands accused (paragraph 49 of his report dated 7 December 2015).
v) Russian juries take their obligations very seriously (paragraph 51).
vi) Although the acquittal rate in courts of general jurisdiction is less than 1%, juries in Russia acquit at a rate of 20% (paragraph 50).
vii) A Chechen jury would be more sympathetic to the Appellant than a court elsewhere in Russia (paragraph 50).
viii) If the Appellant were acquitted, the prosecution could seek a re-trial; and there would be a real risk of conviction on a second trial (paragraph 52).
i) The Appellant would not be entitled to trial by jury, but would be tried by judge alone (paragraphs 38-41 of his report dated 13 February 2017).
ii) The acquittal rate in non-jury cases in Russia is less than 1% (paragraph 45).
iii) If they cannot call her to give evidence, it is likely that the Chechen court will allow the Russian prosecuting authorities to read out and rely upon Ms Dukaeva's statements from 2001 (paragraphs 12-19 of his report dated 13 September 2016).
i) The acquittal rate for non-jury trial is Chechnya is nil (paragraph 4 of his report dated 23 May 2017). The Appellant has "absolutely no chance for acquittal" (paragraph 35 of his statement dated 23 May 2017)
ii) The prosecution will be able to read out and rely on the statements of Ms Dukaeva, even if there is no opportunity to cross-examine her or challenge her evidence (paragraph 8). It is unlikely that the court would allow Ms Dukaeva to give her evidence by way of video link, even if she were willing to give it in that way (paragraph 33-34).
iii) Removal from a SIZO to a police station or IVS (temporary detention facility) is more than a remote possibility (paragraphs 1-3).
iv) There has been the wholesale replacement of members of the Russian Public Monitoring Commission ("ONK"), that will play no more than a purely formal role (paragraphs 3-26 of his report dated 13 February 2017). This has to be coupled with the confirmation received from the UK Foreign and Commonwealth Office that it will no longer monitor non-UK nationals abroad.
i) In his evidence before Judge Riddle, he said that, without Ms Dukaeva's evidence, the case would likely be withdrawn. Now, he says that, if Ms Dukaeva does not attend the trial (as she says she will not), the case will continue; and her evidence will be read out, without challenge.
ii) He proceeded on the basis that the Russian authorities in Chechnya would be monitored; but the evidence is now that the members of ONK have been replaced and that English diplomats do not monitor non-UK citizens abroad.
Secondary Source Materials
The Evidence of Ms Dukaeva and Other Lay Witness Evidence
i) A transcript of the interrogation statement of Ms Dukaeva as an accused person, by the Assistant Prosecutor, on 20 May 2001.
ii) A transcript of the interrogation statement of Ms Dukaeva as a witness, by the Assistant Prosecutor, on 21 June 2001.
iii) Witness statements dated 21 June 2001 taken in relation to the investigation of the murder from each of the following witnesses: Aslan Ahmedovich Banzhaev, Muslim Dzalilovich Dzharmurzaev and Arbi Umarovich Dzharmurzaev.
iv) A transcript of the interrogation statement of Ms Dukaeva as a witness, by an investigating attorney of the Naursky Interregional Investigatory Department on 12 August 2009.
v) Ms Dukaeva's letter to Mr Ezheev dated 30 March 2011.
vi) A witness statement dated 6 August 2011 taken in relation to the investigation of the murder from Rumisa Khuse Dadova.
vii) A video and translated transcript of the 2013 interview with Mr Erzheev.
viii) The statements of Ms Dukaeva dated 19 May and 8 September 2016.
i) Is the Appellant's extradition compatible with his rights under article 3 of the ECHR?
ii) Is the Appellant's extradition compatible with his rights under article 6 of the ECHR?
By virtue of section 104(6) and (7) of the 2003 Act, if the District Judge decides either question in the negative, he must order the Appellant's discharge; and if he answers both in the affirmative, he must send the case to the Secretary of State for her decision whether the person is to be extradited. In either event, the role of this court in the extradition application is at an end.
Mr Justice Green :