Extradition request from Russia – Shmatko case

A recent case in the High Court of England and Wales, “Alexey Shmatko and The Russian Federation”, threw some interesting light on extradition requests from Russia and the view of the British courts.

Some people might be surprised to know that Russia and the UK have an extradition arrangement. Also perhaps surprising for some is the fact that Russia, being a member of the Council of Europe, purportedly submits to the jurisdiction of the European Court of Human Rights. So on paper at least Russia looks rather like a proper democracy with standard democratic values, but of course as we know things are not that simple.

In this case the Russian authorities had made an extradition request to the British authorities concerning Mr Shmatko. He was accused by them of having carried out various fraudulent activities in Penza, Western Russia. He resisted the request, which thus became subject to English legal procedure.

The case was first heard by the Senior District Judge at the Magistrates’ Court, who made various adverse findings about his honesty and credibility.

One of the allegations he made was that he had previously been repeatedly tortured in a remand prison in Penza and that he had been forced to sign a confession under duress. He had some scars which, according to a prominent specialist medical expert, were at least consistent with his account of torture, but the Senior District Judge had some doubts about it.

One particular adverse factor was that he had claimed asylum in the UK but the claim had been refused and after that he had somewhat embellished his story and suddenly started carrying out activities that might strengthen a future legal human rights case.

The Senior DJ’s words “Mr Shmatko has cynically manipulated the system” were not a great deal encouraging for him and the point was subsequently hammered even further home: “He is a profoundly
dishonest and manipulative man”. The Senior DJ had the options of either finding that the extradition request must fail (on, for example, human rights grounds) and thus discharging him or sending the matter back to the Home Secretary for further consideration.

She chose the latter course. However, he now had the right to appeal to the High Court against the Senior DJ’s decision not to discharge him, and the High Court had some new expert evidence before it.

There was some expert evidence that conditions were not satisfactory in the relevant remand prison in Penza and the English Crown Prosecution Service had written to the Russian authorities seeking assurances about this.

The CPS had received a response from the relevant authority in Penza, which assured them that conditions at the remand prison were acceptable. But this assurance was obviously flawed because it did not refer to some highly relevant recent legal developments in Penza. The court said that “We find this omission extremely disturbing”. The response must have looked devious or at the least highly incompetent; the word “extremely” is a strong one, and it indicates that the content of the response was somewhat damaging to the Russian Government’s case.

The court heard detailed evidence about conditions in the remand prison, and Russian prisons generally, and particularly about the amount of space available to prisoners, and also about how effective the monitoring of prison conditions in Russia was likely to be (ie not very). And another kind of question was before the court: irrespective of Mr Shmatko’s character and actions, would he receive a fair trial if extradited to Russia? The court accepted that “it would be wrong simply to make a blanket assumption” that every extradition criminal trial in Russia is unfair, and the court also reminded us that there have been cases where people have been successfully extradited from the UK to Russia.

But, coming from the other direction, the court also heard compelling expert evidence from Professor Bill Bowring, a leading expert on Russia and human rights. Professor Bowring alluded, inter alia, to an effective “no acquittals” policy whereby apparently in judge-only trials in Russia the acquittal rate may be as low as 0.4%.

The court also apparently accepted the general concept that where a judicial system is corrupt, or in parts corrupt (as indeed Russia’s undoubtedly is), no part of it can be strongly relied upon to deliver justice as we would understand it.

The court ultimately came to the conclusion that the prison conditions in Penza would not be acceptable – either pre-trail or post-trial following any conviction – and that it would be a breach of Article 3 of the European on Human Rights (which prohibits inhuman and degrading treatment) for Mr Shmatko to be extradited to Russia and imprisoned to face trial. The court went so far as to say that there was a “very strong probability” of “serious violations” of Article 3 and it thus quashed the extradition request and his appeal was therefore successful.

Having thus decided, it was not necessary for the court to make any decision about whether any trial would be fair or not, so this matter was not determined – but we rather detect that they were sympathetic on this issue.

This case contained some useful and interesting detailed analysis. It was of course a good result for Mr Shmatko, and we wonder how this decision might affect future decisions in the British courts in the same legal area.

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