UK EXTRADITION COURT ACCEPTS ASSURANCES OVER RUSSIAN PRISON CONDITIONS

UK extradition court accepts assurances over Russian prison conditions

Today Senior District Judge Riddle, sitting at Westminster Magistrates' Court has refused the extradition of Igor Kononko to Russia to face trial on allegations of embezzlement, stating it would not be possible for Mr Kononko to receive a fair trial if returned. Gherson did not act in this case but the issues it raises are of significance to anyone facing extradition from Russia. The decision is significant as it is the first Russian extradition request in which the court has considered substantive arguments - beyond prison conditions - since 2012. Also it is the first case in which the Russian authorities have provided assurances to the UK court as to the conditions that the requested person would be held in on their return to Russia. Whilst it ultimately refused extradition on other grounds significantly the UK court accepted these assurances.

The position in the UK with regards to Russian extradition requests has been effectively deadlocked since the European Court of Human Rights' Pilot Decision in the case of Ananyev. In that case, the Strasbourg Court found systemic failings in the Russian prison estate and that the conditions in the remand facilities (or SIZOs) in particular breached Article 3 of the European Convention on Human Rights. The decision had far reaching consequences and was subsequently raised domestically in the UK in the case of The Russian Federation v Olessia Fotinova in March 2013. In that case the Westminster Court held that unless and until the Russian Federation were able to provide specific evidence and assurances to deal with the Pilot Decision of Ananyev then the UK court would not extradite individuals to Russia simply on the grounds of prison conditions.

Since the decision in Fotinova there have been no successful extradition requests from Russia. In that case the SDJ added a postscript to his judgment, which indicated that future extradition requests from Russia may not be permitted to proceed without evidence that conditions in pre-trial detention had significantly improved.

In fact, following that decision, in a number of cases the court did not even consider other arguments that were put forward by the defence - for example political motivation - and discharged many individuals solely on the grounds of Article 3 and prison conditions.

In the case of Kononko the defence again argued that his extradition should be barred because of prison conditions in the Russian Federation. For the first time in the UK, the Russian Federation provided assurances to the court as to the conditions that Mr Kononko would be held in on his return to the Russian Federation. They assured the court that he would be kept in pre-trial detention facilities that do not breach his human rights under Article 3 ECHR. The SDJ found today that these assurances could be trusted and were compatible with the guidelines set out in the case of Abu Qatada.

This move from Russia follows a recent trend in extradition where countries, who effectively concede that some of their prisons do not meet the standards required under ECHR law, provide assurances to the UK or specifically to requested persons, regarding their treatment and conditions upon their return. The UK has previously accepted such assurances in relation to prison conditions in Lithuania, Romania and Italy.

The SDJ also relied on the opinion of Professor Morgan, a UK expert on prison conditions. Professor Morgan told the court that, if the assurance were to be trusted, Mr Kononko would not be kept in conditions that would be inhumane or degrading. This followed his visit to two detention facilities last year, where he found the conditions to be Article 3 compliant.

The significance of this development cannot be understated for those who face or fear Russian extradition requests to the UK. It is no longer possible to assume that extradition will be refused simply on the basis of general prison conditions in Russia. The burden imposed on the requesting authority in Fotinova has effectively been reversed and it will now be for the defence to show that extradition should not proceed and in particular to counter any future assurances that are provided by the Russian Federation.

This potentially marks a sea change in the way in which extraditions to Russia will be dealt with by the UK courts and those facing extradition must carefully consider how they present any defence. At the end of 2014 the Supreme Court held that defendants could not rely upon closed material proceedings in extradition cases. As a result of this anyone facing extradition who wishes to rely upon sensitive material in their defence - particularly in politically motivated extradition requests - must give serious consideration at an early stage to the extent to which they are able to disclose these witnesses in extradition proceedings and consequently to the proper forum in which to make these arguments. Today's decision means that defendants can no longer rely simply on prison conditions and will be expected to present a full extradition defence, which will be subjected to rigorous scrutiny by those representing the Russian Federation.

In addition, many extradition requests that may have been shelved in the light of the Fotinova decision in 2013 could now be re-activated and we may now see many more extradition requests from Russia being processed by the Home Office and working their way through the courts.

It should be stated that any assurances that are given in relation to prison conditions that are given on an individual basis, will be considered on a case by case basis. However, given the court's position in this case, it is clear that the Russian Federation has now built detention facilities that will satisfy the UK courts and it is likely that they will offer similar assurances in the future.

The CPS, who represent the Russian Federation, have 14 days to consider whether an appeal will be lodged, if it is this will not be heard until the Autumn at the earliest.

Gherson has unparalleled experience in dealing with Russian extradition requests in many countries around the world and its dedicated extradition and complex immigration departments are able to advise individuals facing extradition requests from Russia on all of the options they have in challenging requests wherever they might be received. Should you wish to speak to a member of our team please do not hesitate to get in touch.