We recently reported about the High Court case of “Shmatko”, in which Mr Shmatko successfully resisted extradition to Russia.
He won the case on the basis of unacceptable conditions within the Russian prison system and human rights, but the court also appeared to have some strong feelings about the inadequacies of the Russian courts and justice system, although these issues were not fully tested.
The court’s judgement reminded us of the interesting fact that some recent extradition requests from Russia to the UK have been successful, and it referred to two such cases: “Dzgoev” and “Ioskevich”. In both these cases the final decisions were made by the High Court.
Bearing in mind the condemnatory comments of the court in the Shamtko case, how could this be? The first, and most obvious, answer to this question is that different sets of judges can always reach different conclusions.
But there were however some indications in the Shmatko case that things had recently changed for the worse in Russia. The Dzgoev case was heard in 2017 and the Ioskevich case in March 2018, but it seems that events might have moved on since then.
The court in the Shmatko case heard evidence about the monitoring of prison conditions in Russia. It established first of all that, on paper at least, there is some, but not necessarily very effective.
A respected expert witness, Professor Judith Pallot, stated that legislation passed in Russia in July 2018: “has effectively put the final nail in the coffin of independent and impartial prison monitoring in the RF and has removed the only channel for making complaints”.
This did not sound very encouraging, and the court also related a disturbing historical event: in a previous case another expert, Professor Morgan, had visited a Russian detention facility in order to assess the conditions but it transpired that a lot of prisoners had been suddenly moved out before the visit, so as to improve the overcrowding situation. But the expert had been lied to about this by the Russian authorities.
But despite this incident having been known about by the court in the Dzgoev case it decided – and, in fairness, after careful analysis – that the extradition should nonetheless go ahead. Despite the background, it decided that the assurances of the Russian authorities were sufficiently reliable.
And in the Ioskevich case things had not gone well at all for the appellant. Two expert witnesses had taken sharply different views (one of them very critical of the Russian system and the other one far less so) and the court had preferred the evidence which favoured the Russian authorities. And the court considered that in some aspects (ie the variability of the standard of trials in Russia) the evidence of both expert witnesses was helpful to the Russian authorities’ position. Thus Mr Ioskevich’s case failed. The caselaw shows us that it is foolish for anyone to imagine that the Russian court system is entirely corrupt. Rather like the curate’s egg, some parts are better than others, and this is something that the British courts have often taken on board.
But on prison conditions we are now perhaps on stronger ground than we were previously: the Shmatko case provided good evidence about a currently generally unsatisfactory situation, and this might perhaps influence the courts in future.
Are the cases of Dzgoev and Ioskevich likely to become anomalous or are we likely to see future cases where the British courts will approve extradition to Russia? The courts can block an extradition request on human rights grounds and also – and as has sometimes happened in the case of Russia – if it considers that the extradition request was really made on a political basis, not on a bona fide legal basis.
Well of course we will have to wait and see but we believe that, in the current context of prison conditions, appellants against extradition may have a good chance of success, and especially in light of current tensions between Russia and the UK, which may throw a very particular light on things.