As the clouds of war gather over Ukraine, it is a convenient moment to consider the state of UK-Russo extradition relations and the likely impact of any further breaches of international norms by the Russian Federation (‘RF’).
For many years during the 1990s and 2000s, there were no successful requests for extradition to the RF. Following the pilot judgment of the Strasbourg Court in 2012 in Ananyev v RF (App.No.42525/07), Westminster Magistrates’ Court repeatedly refused extradition on the basis that the presumption of compliance with Article 3 ECHR in pre-trial detention had been reversed and the RF had refused to engage in the extradition proceedings by providing an evidential response or diplomatic assurances.
A change of approach: Dzgoev & Ioskevich
The RF’s cause had not been assisted by appearing only to make requests in politically sensitive cases. Then, in the mid 2010s, it appeared to change strategy. In Dzgoev v RF  EWHC 735 (Admin), it requested a humble street robber to serve a comparably modest sentence and to stand trial for one further offence and it engaged in the proceedings. It provided (limited) assurances about the conditions of pre-trial detention in SIZO-1 in the Irkutzk Region which satisfied the District Judge, but not the High Court, who proposed certain fuller assurances that would meet its concerns. The RF duly adopted them and the first extradition to the RF in recent memory was secured.
A second extradition order followed shortly thereafter in Ioskevich v RF  EWHC 696 (Admin). The RF requested a convicted fraudster to serve a mere 18 months’ imprisonment in the Krasnodar region. An expert, jointly instructed by the requested person and the RF, inspected the pre-trial and post-conviction facilities nominated by the RF and concluded they were Article 3-compliant. The courts accepted the RF’s assurances about minimum levels of personal space.
Emboldened by these decisions, the RF began again to seek extradition in cases with political features. In 2017, in RF v Shmatko & Avdalyan, two requests from the Penza region were joined and heard together at first instance. Mr Avdalyan was discharged pursuant to s.81(a) and (b) on the basis that he had been the subject of corporate raiding linked to the Governor of Penza and had expressed anti-corruption sentiments in the media. The claim of political motivation by Mr Shmakto, accused of a tax fraud against the Russian state, was rejected and his extradition ordered.
As to prison conditions, the RF guaranteed that Mr Shmatko would be detained in specific pre-trial and post-conviction facilities in the Penza region in which he was guaranteed 4m2 and 3m2 of personal space respectively. The RF also provided information addressing the current occupancy, capacity and total living space in the facilities; the space in square meters provided to each prisoner; information about the relevant monitoring bodies (known as Public Monitoring Commissions, ‘PMCs’) including the number of members, some of their names and jobs and the number of visits they had performed; and specific responses to the evidence of the defence expert, Dr Alan Mitchell, and recent high profile allegations of torture in the Penza region.
In the meanwhile, in other cases discharged pursuant to Article 6 ECHR because of concerns about the independence of the Russian courts in politically sensitive cases, the first instance courts continued to endorse the reliability of the RF’s prison conditions assurances: e.g. RF v Yurov.
The thawing of extradition relations, however, coincided with a dramatic rise in political tensions between the UK and Russia. In 2014, the RF invaded and annexed the Crimea; in 2015 it began direct military action in Syria; in 2016, the RF interfered in the US Presidential election and, according to the Intelligence and Security Committee of Parliament, the EU referendum; in 2018, Sergei and Yulia Skripal were poisoned in Salisbury by Russian agents; and in the same year, Paul Whelan, a British citizen, was arrested in Moscow and subsequently convicted of being a US spy.
By the time of the appeal hearing in Shmatko in December 2018, UK-Russo relations were at a modern nadir. In April that year, the then Foreign Secretary, Boris Johnson, writing in the Sunday Times commented that, “Sometimes it seems as if running a good cover-up is the main job of the Kremlin. No other government devotes as much time and effort to the business of trying to sabotage or discredit international inquiries… The essence of a Kremlin cover-up is a cynical attempt to bury awkward facts beneath an avalanche of lies and disinformation”.
A halt to Russian extradition: Shmatko
It was against that background, and notwithstanding the provision of assurances and further information, that the Divisional Court (Bean LJ, Dove J) in Shmatko v RF  EWHC 3534 (Admin) found that there was “not merely a real risk but a very strong probability” that the appellant would face Article 3 mistreatment in both pre-trial and post-conviction detention in Penza, which the assurances could not dispel. The Court made a number of important points for future cases:
- First, the RF must establish, and the Court must focus on, whether the assurances are credible and deliverable in practice in view of the prevailing conditions in the nominated facilities. It noted that the RF had served no evidence by way of rebuttal.
- Second, the legal requirement of only 2m2 per prisoner in Russian post-conviction penal colonies (which had not been the subject of a successful challenge previously) means that in an over-capacity facility the RF needs to guarantee a sharp reduction in the numbers of prisoners necessary to provide requested persons with an Article 3-compliant 3m2 of personal space.
- Third, there must be independent monitoring of the facilities nominated in the assurances. In Dzgoev and Ioskevich“great significance” was attached to the issue of independent monitoring. There had been a legislative change in 2018 that had prohibited PMC members from speaking to pre-trial detainees in private. The Court also accepted expert evidence that the PMCs in the RF have been effectively “hijacked”. The Court dismissed the RF’s submission that the role of an effective monitor could be filled by lawyers or other NGOs.
- Fourth, the RF must act with integrity. As to the RF’s conduct in the proceedings, the Court found that there had been “extremely disturbing” “serious non-disclosure” by the Regional Prosecutor’s Office in Penza in further information sent to the UK shortly before the appeal. The RF failed to identify a decision of a Russian court that was adverse to its position and instead relied on an earlier, favourable ruling from an inferior court that had, by the time the information was sent to the UK, been overturned. As a result, the Court was unwilling to receive further prison conditions assurances from the same source.
- Fifth, as to the RF’s conduct in the international sphere, the Court concluded its judgment by observing that there was “considerable force” in the finding of Sheriff Ross in a first instance Russian extradition case in Scotland (RF v Shapovalov) that there was good reason to reconsider the benefit of the doubt afforded to the RF following the Salisbury poisoning and Council of Europe sanctions for the RF’s breaches of international norms. Given its earlier findings, the Court did not consider it necessary to examine the issue further,.
The fact the Court felt moved to make those last comments, and to have regard to geopolitical factors at all, is demonstrative of the breakdown in mutual trust and confidence between the UK and the RF on which functioning extradition relations depend. It is well-established in the Strasbourg jurisprudence that State practice of breaching international obligations is a significant factor in assessing whether assurances are capable of being relied upon: see e.g. Azimov v Russia (2013) (App No.67474/11). It is inevitable that if the RF wages war in Europe in 2022, it will re-ignite the argument that it cannot be trusted to deliver on its diplomatic word or to abide by international norms.
Post-Shmatko and the future of Russian extradition
Following the Divisional Court judgment in Shmatko, there have been no decisions ordering extradition to the RF. In the first case to follow it, RF v Zmikhnovskiy, the then Senior District Judge (now Arbuthnot J) reversed her earlier finding in RF v Yurov that identical assurances guaranteeing detention in FKU SIZO 1 UFSIN in Moscow and Correctional Colony No 2 in Tula were sufficient to dispel the risk of an Article 3 violation. She added a post-script to her judgment in which she said it would be necessary in future for the RF to provide evidence about prison conditions, including photographs and videos and it should re-consider its blanket decision to refuse prison inspections.
Subsequently, in RF v Egorova & Otrs (2019), SDJ Arbuthnot joined four cases to consider, before any other issue, the common issues of prison conditions and independent monitoring. That approach is reminiscent of the practice of former SDJ Workman to make ‘special directions’ requiring the RF to provide evidence and assurances early in a case and to discharge the requested person if the order was not met.
The SDJ noted that the RF had, contrary to its approach over a number of years, engaged in the proceedings in a helpful way, including through the provision of photographs and accurate information. She found that if the assurances could be monitored the Article 3 risk would be dispelled, but she was unable to conclude that the local PMCs, or other regional human rights bodies advanced as alternative monitors by the RF (known as Commissioners for Human Rights, ‘CHRs’), could provide independent, effective monitoring in practice. Although CHRs can hold private conversations with prisoners, they are, she concluded following expert evidence, subordinate to the prison service. Moreover, a 2019 pilot judgment from the Strasbourg Court in Tomov v Russia (App No.18255/10) about conditions of prisoner transport had introduced a new hurdle for the RF to overcome. The SDJ discharged the requested persons.
The SDJ offered the RF some hope for the future, however. She noted that a new federal law aimed at strengthening the powers of the CHRs to put them on an equal footing with PMCs was being considered by the State Duma. She also suggested that if the RF could address certain concerns, including assurances in relation to transport, medication and monitoring by the British embassy (as the German embassy does), then she would entertain a further extradition request. The RF sought to provide more information in an application for leave to appeal. Robin Knowles J refused the RF permission on the basis that it was unarguable that the SDJ was wrong to make the findings she did and that it was unfair for the RF to provide rolling assurances in the hope that it would eventually satisfy a tribunal.
The new federal law relating to the CHRs was introduced on 18 March 2020 and was considered for the first time in RF v Kalashnikova. DJ Goozee concluded that, following amendments after its first reading in the State Duma, the new federal law had not safeguarded the CHRs’ independence and he discharged the requested person because the assurances provided were not objectively verifiable. The RF was refused permission to appeal by the High Court in November 2021. In RF v Lyashenko and RF v Malyshev (both November 2021), the new SDJ refused extradition and he too identified that the assurances on monitoring and transportation did not adequately address the issues raised in the preceding cases.
In the final analysis, there remains much work ahead if the RF hopes to re-establish a functioning extradition relationship with the UK – and war in Europe will make that task all the more challenging.
Adam Payter acted for the requested persons in Shmatko and Zmikhnovskiy
Rosemary Davidson acted for the requested person in Yurov
David Perry QC acted for the requested persons in Zmikhnovskiy and Yurov
 The only High Court decision in that period was Tamarevichute v Russia  EWHC 534 (Admin). The extradition of a Lithuanian woman of Roma origin was ordered and her appeal dismissed.
 Mr Ioskevich subsequently breached his bail and was not removed. He remained at large until he was arrested pursuant to the domestic arrest warrant in 2021. He subsequently lodged an application to reopen his appeal, which is currently pending.
 In Zarmaev v the RF  EWHC 2705 (Admin), a third person – a Chechen wanted for his part in a murder – narrowly avoided extradition. It was ordered at first instance, but the case was remitted back to Westminster by the High Court, and he was subsequently discharged on prison conditions grounds.
 That attempted manipulation of the proceedings resonated with a first instance finding in an earlier case that the RF had decanted a facility of prisoners before an independent expert inspected it to make it appear under-capacity for the purposes of a UK extradition case: see RF v Konoko(2015); RF v Korolev (2016).
 See RF v Makarov & Makhlay (2009)