QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GARNHAM
| Stanislav Dzgoev
|- and -
|Prosecutor General's Office of the Russian Federation
Peter Caldwell and Nicholas Hearn (instructed by CPS Extradition Unit) for the Respondent
Hearing date : 24th February 2017
Crown Copyright ©
Lord Justice Gross :
The Request and the Further Information
"will not be subject to torture, cruel, inhuman or degrading treatment or punishment…Dzgoev will be detained in a penitentiary facility which meets standards stipulated by the ECHR and European Penitentiary Rules of 11.01.2006 and consular officers of the UK Embassy in Russia will be able to visit him at any time including with a view to check compliance with the guarantees set forth in this request"
"other European states make positive decisions on extradition of persons to the Russian Federation for bring criminal charges or enforcing offences. In some cases, foreign states requests guarantee to ensure that the extradited person be allowed visits by consular officers. Such guarantees have been requested by the Federation Republic of Germany, Kingdom of Spain, the Czech Republic and other states. Over the last six years the consular officials from the Federal Republic of Germany have consistently visited the persons extradited from Germany. No complaints have been received from them with regard to the conditions of detention of the extradited persons…..In 2015 only the European countries extradited to Russia 29 persons for bringing them to criminal responsibility with a view to enforcing a sentence."
The decision of the District Judge
"Having reminded myself of the judgment in Othman v UK  UKHL 10 and having considered all the evidence both written and oral, I accept the assurances provided in this case. I find that there is no statutory bar to extradition and that extradition does not breach the requested person's convention rights. I therefore send the case to the Secretary of State for her decision on whether Mr Dzgoev should be extradited to the Russian Federation."
(1) On an appeal under section 103 the High Court may—
(a) allow the appeal;
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
The criticism of the District Judge's decision
The Applicable Principles
"the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (art. 3) of the Convention... In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."
"The framework of the European Arrest Warrant scheme is constructed on a basis of mutual trust between the parties to the Convention, all of whom belong to the Council of Europe. The starting point is therefore an assumption that the requesting state is able to, and will, fulfil its obligations under the Human Rights Convention."
"it is very clear from a long line of authority in this court that Poland, as a Member State of the Council of Europe, is presumed to be able and willing to fulfil its obligations under the Convention, in the absence of clear, cogent and compelling evidence to the contrary…In such a case it would have to be shown that there is a real risk of the requested person being subjected to torture or to inhuman or degrading treatment…" (emphasis added).
"something approaching an international consensus is required, if the presumption is to be rebutted."
"1. The Court may initiate a pilot-judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications."
"139 The Court reiterates that art.3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of art.3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.
140 Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of art.3
141 In the context of deprivation of liberty the Court has consistently stressed that, to fall under art.3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with the detention. The state must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured.
142 When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant. The length of the period during which a person is detained in the particular conditions also has to be considered."
"It follows that, in deciding whether or not there has been a violation of art.3 on account of the lack of personal space, the Court has to have regard to the following three elements:
(a) each detainee must have an individual sleeping place in the cell;
(b) each detainee must dispose of at least 3sqm of floor space; and
(c) the overall surface of the cell must be such as to allow the detainees to move freely between the furniture items.
The absence of any of the above elements creates in itself a strong presumption that the conditions of detention amounted to degrading treatment and were in breach of art.3."
"It has been established that the applicants Mr Ananyev and Mr Bashirov were afforded less than 3sqm of personal space. They remained inside the cell all the time, except for a one-hour period of outside exercise; they had to have their meals and answer the calls of nature in those cramped conditions. As far as Mr Bashirov is concerned, it is noted that he spent in those conditions more than three years. The Court therefore considers that the applicants Mr Ananyev and Mr Bashirov were subjected to inhuman and degrading treatment in breach of art.3 of the Convention."
"179 The Court notes that inadequate conditions of detention appear to constitute a recurrent problem in Russia which has led it to find violations of arts 3 and 13 of the Convention in more than 80 judgments that have been adopted since the first such finding in the Kalashnikov case in 2002. The Court therefore considers it timely and appropriate to examine the present case under art.46 of the Convention which reads, in the relevant part, as follows:
"1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution…
181 In order to facilitate effective implementation of its judgments along these lines, the Court may adopt a pilot-judgment procedure allowing it to clearly identify in a judgment the existence of structural problems underlying the violations and to indicate specific measures or actions to be taken by the respondent State to remedy them. This adjudicative approach is, however, pursued with due respect for the Convention organs' respective functions: it falls to the Committee of Ministers to evaluate the implementation of individual and general measures under art. 46(2) of the Convention…"
"There was some debate before us whether the pilot judgment provides support for the proposition that, leaving aside personal space, the conditions in Hungarian prisons are such that there is always a real risk of a breach of article 3 on account of the other matters which weighed in the balance in some of the cases considered by the Strasbourg court in Varga . Read as a whole, it is clear that the judgment of the Strasbourg court was focussed on space and, in respect of the cases under consideration, in terms it rejected the submission that the supporting features could in themselves amount to a violation of article 3. Mr Bailin focussed on the observations in paragraph 78 of the judgment (summarised above) which suggest that even if a prisoner has between 3m2 and 4m2 of personal space there might be a violation of article 3 if sufficient other degrading features were in play. That was an example of Strasbourg court carefully avoiding drawing clear-cut boundaries in cases where an evaluation of a constellation of factors may be called for to answer the question whether there has been a violation of the Convention. As is well known, whilst the court lays down general principles its consideration of individual applications are very fact-specific."
"where the European Court of Human Rights has made a finding in a pilot judgment that the prison regime of a state is in systemic breach of Article 3, absent other specific evidence, there is a risk that, if detained in that prison system, a returned individual will be subjected to prison conditions that breach his human rights. Of course, it is open to that state to adduce evidence that there is no such risk. For example, it could produce evidence that, since the pilot judgment, prison conditions have improved, so that there is no longer a systemic problem with them; or give an assurance that, if the individual is returned and then detained, he will be kept in a particular prison (or in one of a number of identified prisons) which does not suffer from the general problem identified by the European Court."
"188 In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human-rights situation in the receiving state excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances.
189 More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving state's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:
(1) whether the terms of the assurances have been disclosed to the Court…;
(2) whether the assurances are specific or are general and vague…;
(3) who has given the assurances and whether that person can bind the receiving state…;
(4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them…;
(5) whether the assurances concerns treatment which is legal or illegal in the receiving state…;
(6) whether they have been given by a Contracting State…;
(7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state's record in abiding by similar assurances…;
(8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers…;
(9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human-rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible…;
(10) whether the applicant has previously been ill-treated in the receiving state…; and
(11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State…"
Pre-trial detention in Russia
The complaints about SIZOs and the reach of Ananyev
"Taking into account the recurrent and persistent nature of the problem, the large number of people it has affected or is capable of affecting, and the urgent need to grant them speedy and appropriate redress at the domestic level, the Court considers it appropriate to apply the pilot-judgment procedure in the present case. As it has emphasised above, the mere repetition of the Court's findings in similar individual cases would not be the best way to achieve the Convention's purpose. The Court thus feels compelled to address the underlying structural problems in greater depth, to examine the source of those problems and to provide further assistance to the respondent State in finding the appropriate solutions and to the Committee of Ministers in supervising the execution of the judgments."
The Russian Response
"The defence made much of the decanting of prisoners a couple of days before Professor Morgan's visit to SIZO 5. Mr Caldwell for the RS points out that the CPT visit had happened in November and that the SIZO remained at that lower capacity for nearly a year afterwards. What concerned me most about the sudden emptying of the prison was that when Professor Morgan asked about this he was not told the truth. That would be a concern when considering any assurance in relation to prisons given by the RS" (emphasis added).
Complaints other than overcrowding in SIZOs
"72. As for any risk of ill-treatment in a penal facility for convicted prisoners, the Court notes that various country reports, obtained by it proprio motu, state that conditions in prisons and detention centres across Russia vary but are sometimes harsh, specifying such conditions as overcrowding, limited access to health care, food shortages, abuse by guards and inmates, and inadequate sanitation. However, it appears that those problems are reported in remand prisons in which only remand prisoners are accommodated. Moreover, none of these reports mention any noteworthy problems in connection with the treatment and detention conditions afforded in correctional facilities in general ….
73. The Court itself has had to deal with a large number of applications concerning conditions of detention in various custodial facilities in Russia. However, the absolute majority of applications lodged with the Court where it has found a violation of Article 3 have concerned remand prisons (see the Annex in Ananyev …) By contrast, no serious structural problems have yet been identified in respect of conditions of detention in post-conviction facilities such as correctional colonies or prisons, where the applicant would be serving his sentence.
74. Based on the available material, the Court considers that it has not been shown to the required standard of proof that the situation in Russian penal facilities for convicted prisoners is such as to call for a total ban on the extradition of convicted prisoners to that country, for instance on account of conditions of detention or a risk of ill-treatment of detainees."
Healthcare and medical facilities
"About 400 men out of 1500 are HIV positive and many are suffering from TB and other serious illness. For months, these people cannot get an appointment with a doctor in a central hospital. In their own words, the prisoners say that "the journey for life" is not dependant on the correctional colony doctor's authorisation but on the officer in charge of internal discipline. If he wants you to go you go; if he doesn't want you to go he strikes you off the list.""
"The fact that somebody's health may be at greater risk in Latvia as a result of having commenced treatment in the United Kingdom, which is not provided in Latvia and that there is an increased risk of morbidity or mortality, does not mean that the high Article 3 threshold is crossed."
The Court invites the CPS to correspond with the Russian authorities seeking the Appellant's extradition with a view to securing assurances in the following terms:
A transcript of this judgment should accompany the request for these assurances.
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1. In our judgment of 6 April 2017, we dismissed the challenge mounted by the Appellant based on the likely circumstances of his post-trial detention and the adequacy of medical facilities in both pre-trial and post-trial detention. However, we stayed the appeal advanced on the grounds related to detention before trial. We invited further assurances from the Russian authorities as specified in the annex to that judgment.
2. After a number of extensions of time for their provision, assurances of the type we specified have now been provided. We set out in the annex to this postscript copies of the assurances now provided, both in their original Russian and as translated.
3. In response to that development, those acting for the appellant have served a further expert report from Professor William Bowring, a copy of the Report to the Russian Government on the visit to the Russian Federation carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and further written submissions. We have read all three documents with some care.
4. We take into account the fact, as noted in our judgment, that there was no complaint of ill-treatment by the appellant when he was last in detention in Russia. We remind ourselves that these additional assurances are being provided by the appropriate authorities of the Russian Federation, and that the Russian Federation is a member of the Council of Europe and a high contracting party to the European Convention on Human Rights. We note, in particular, that these assurances are provided to this Court to address particular concerns we articulated related to this individual appellant. The Russian Federation plainly has a strong interest in honouring these assurances.
5. In those circumstances, we are content to rely on those assurances. Accordingly, this appeal is dismissed.