On 9 December 2019, the Senior District Judge (SDJ) handed down a judgment in Russian Federation v Tsurcan, Egorova, Kindrachuk & Smychkovsky ordering the discharge of four individuals (the RPs) who were the subject of separate extradition requests from the Russian Federation (RF). The cases had been joined by the SDJ to consider and determine, as a preliminary issue, whether the RPs’ faced a real risk of a violation of article 3 ECHR and whether there was sufficient independent monitoring within the RF to ensure that any assurances relied upon were reliable and met the article 3 risk. The decision to join the cases followed a series of cases, starting with the decision in Shmatko v RF [2018] EWHC 3534, in which the Divisional Court concluded that effective independent monitoring was a critical factor in any assessment of the reliability, or otherwise, of any Russian assurance. Following that decision the SDJ discharged extradition requests in two separate cases, RF v  Zmikhonovskiy and RF v Sokolov. In both judgments, the SDJ concluded, following Shmatko, that the assurances did not meet the article 3 risk due, in part, to the lack of independent monitoring, following the emasculation of the Public Monitoring Commissions (PMCs) by, inter alia, the curtailment of their independence, the replacement of human rights experts with law enforcement officials, the monitoring of conversations between PMC members and prisoners, and the lack of any activity from the new PMCs. The RF did not appeal either decision.

In her judgment in Tsurcan et al, the SDJ noted that she had joined the cases together because the High Court and Westminster Magistrates’ Court had spent the “last two years looking at the same arguments time and again” and it was the SDJ’s intention to look at “prison conditions and the monitoring of any assurances given”. Following the hearing, at which Professor Judith Pallot gave evidence on the continued lack of any effective monitoring and the increased awareness of systemic torture and mistreatment throughout the prison estate, the SDJ considered the article 3 risk in respect of each individual, the risk of torture and the effectiveness of any independent monitoring. During the hearing the RF appeared to abandon the PMCs as being capable of providing effective monitoring and provided ‘assurances’ that Regional Commissioners for Human Rights (CHRs) would provide monitoring of the conditions in which each RP was detained. The SDJ concluded that she had no difficulty in finding that PMCs cannot effectively monitor assurances, due their lack of independence and effectiveness. She concluded that CHRs were not effective either, a point starkly demonstrated by graphic video footage of an assault by 18 prison staff of a Mr Yaroslav, where the complaint by the CHR to the prosecutor was not acted on for about a year and only once the video had been published online.

In stark conclusions, the SDJ held that her concerns about the risk of article 3 violations were not about overcrowding, but were about the “systemic violence in many of the penitentiary institutions” in the RF and that “there is not an effective system against torture and ill-treatment” in the RF. In the absence of effective monitoring, she concluded that each RP faced a real risk of a violation of article 3 ECHR.

The judgment also sought to identify what the RF would need to provide in order to successfully obtain extradition. In addition to specific issues to the RPs, the SDJ identified the need for assurances in respect of transportation for two of the RPs and, crucially, that the British Embassy should be asked to consider whether it would be willing to monitor the assurances as a means of providing effective monitoring.

The RF applied for permission to appeal, criticising not only the SDJ’s extensive findings and approach, but her failure to permit the RF further time to obtain the information she identified in her judgment as being necessary in any future request. On 19 March 2020, Mr Justice Robin Knowles refused the RF permission to appeal and in his written reasons he noted that “On the findings made the Court’s decision is plainly correct. There is no room for an appeal” and that the “Respondents are correct to describe the approach adopted by the proposed Appellant as ‘providing a rolling series of reactive assurances and ad hoc proposed means of monitoring…in the hope it eventually satisfied a tribunal at some stage’ and ‘as inappropriate and unfair’”.  The RF did not seek to renew their application for permission to appeal.

The clear consequence of the decisions in this case, is that extraditions to the RF will not take place until such time as the RF establishes an effective independent monitoring system and addresses the systemic use of torture and mistreatment across the prison estate. Any future extradition request from the RF will now have to commence with the identification by the RF of a clear system of independent and effective monitoring and, arguably, detailed information on the systemic use of torture. Absent that information, it appears to be clear the intention of the Court that fresh RF requests will not be entertained, for the Court is not willing, quite rightly, to allow complex cases to be litigated when the result is inevitable. There is a powerful argument that unless the necessary information is included in the request, the individual should not be arrested and the Metropolitan Police and the Home Office should both ensure they are aware of the wide ranging impact of this decision and the need for the RF to address the issues before they have any prospect of successfully obtaining extradition. If there is an arrest without that information, those representing the individual should not only seek unconditional bail but should ensure the Court provides a strict timeframe for the RF to provide the information.

It is, however, very difficult to see what information the RF will be able to provide. With respect to the SDJ, the suggestion that the British Embassy ought to step forward and monitor the assurances is fraught with difficulty. Firstly, the British Embassy has no legal authority to visit those detained in the RF who are not British citizens (even if they had been extradited from this jurisdiction). Secondly, the ability of British diplomats to operate in the RF is at the whim of international politics and the fluctuating and often poor relationship between the UK and the RF. That cannot provide a reliable means of an assurance during the life of a prison sentence. Thirdly, the resources available are likely to be severely limited and it is not difficult to imagine that Her Majesty’s Ambassador to the RF is likely to need to prioritise, and have her staff prioritise, those matters which advance the political, economic and social interests of the UK, as opposed to visiting remote prisons in the RF to follow up on the wellbeing of foreign nationals.

I would suggest that effective monitoring is, however, no longer the primary issue. The evidence in this case included evidence of ‘torture zones’ in the RF and beatings of prisoners either by prison staff or prison activists, acting on orders from the authorities. The SDJ concluded for three of the four RPs that even if there was effective monitoring, the assurances would be insufficient because of the risks of violence, which crossed the article 3 threshold. The evidence of torture and mistreatment was widespread and as the Divisional Court held in Marku & Murphy v Greece [2016] EWHC 1801 (Admin), addressing the risk of violence is not a matter for assurances, it is a question of putting in place remedial measures to remove the risk. That is obviously not a quick process and it is notable that in the four years since the decision in Marku, which focused on the risk of violence in Korydallos Prison, there has been no extradition to Greece where there is a risk of detention in Korydallos Prison. Those representing individuals who are subject to requests from the RF should expect to see detailed evidence on the remedial measures that have been put into place to prevent torture and mistreatment. There is, after all, no point in having effective monitoring if those being monitored are being assaulted to ensure they do not complain.

The issues facing the RF in any future request are significant and there are no obvious means by which the proper concerns of the courts can be allayed. The issues are systemic and institutional and the solution is likely to require fundamental institutional changes in the RF. The prospects of a successful extradition to the RF in the foreseeable future must be slim.

Alex Bailin QC and James Stansfeld, instructed by Cambrose Solicitors, represented Mr Kindrachuk.