UK raises the green flag for Russian extradition requests
It is not the courts' role to draft diplomatic assurances for Russian authorities, for to do so deprives judges of objective scrutiny, argues Edward Grange
Fyodor Dostoyevsky once said: ‘The degree of civilisation in a society is revealed by entering its prisons.’ Today,
136 years after his death, Russian civilisation would not be judged well by these standards. In Dzgoev v Prosecutor General’s Office of the Russian Federation  EWHC 735 (Admin), the Divisional Court was asked to consider a single ground of appeal, but one that was vitally important to a number of requested persons facing extradition to Russia. Were prison conditions in Russia so appalling that they breach article 3 of the European Convention on Human Rights, and if so, could the assurances that had been provided by the Russian authorities allay the court’s fears that Mr Dzgoev would not be detained in such conditions if extradited?
Ironically, judgment was pronounced in the same week that Boris Johnson cancelled his scheduled trip to Moscow in light of Russian president Vladimir Putin’s continued support of Syria’s Bashar al-Assad, and a few days before it was revealed by The Sunday Times that Metropolitan Police officers investigating the murder of Alexander Litvinenko were poisoned themselves while in Moscow. The paper reported on 16 April that Russia’s most senior diplomat in Britain – Alexander Yakovenko – claimed that there is no longer any ‘bilateral relationship of substance’.
The judgment is astonishing. One could be forgiven, having reached paragraph 65 of the judgment, for thinking that the court was about to allow Mr Dzgoev’s appeal. By this point, the court had expressed its ‘serious concerns about the phrasing and reliability of the assurances offered to date’; described the mechanism for monitoring those assurances as ‘less than satisfactory’; noted that it would be ‘wholly unrealistic’ to expect staff from the British Embassy to visit Mr Dzgoev; and observed that an independent expert appointed in a previous extradition case had been lied to by Russian authorities about the true population figures of a prison in Moscow.
However, only three paragraphs later, the tide had turned. All hope was extinguished that the court would stand up to the Russian request and find it wanting due to the systemic failures in its prison estate and the failures to afford its residents the most basic of human rights.
Despite the court’s concerns it invited Russia to provide further assurances. Just so there could be no confusion as to what the court was seeking to enable it to ultimately dismiss Mr Dzgoev’s appeal, the court then drafted these assurances for Russia and annexed them to the judgment.
Can assurances be monitored?
The House of Lords Select Committee on Extradition Law reported in March 2015 that ‘arrangements in place for monitoring assurances are flawed. It is clear that there can be no confidence that assurances are not being breached, or that they can offer an effective remedy in the event of a breach’.
In Dzgoev, the court was by no means the first to raise concerns regarding the mechanism by which compliance could be objectively verified. The Committee for the Prevention of Torture has also voiced concerns about the monitoring of diplomatic assurances.
The court seemed all too willing to ‘solve’ the problem by drafting assurances for Russia. Now all the Russian authorities must do is cut and paste them into a letter, and sign and return it care of the Crown Prosecution Service. They have 42 days from the date of the judgment to do so – that doesn’t appear too onerous. No real thought is required as to the practicality or phrasing of the terms of the assurances – this has already been done for them. The court has indicated it would find the assurances acceptable if they were to be provided by the Russian authorities, which is hardly surprising given the court drafted them.
What next for extradition?
It is likely that Russia will continue to offer assurances in its extradition requests. However, bilateral relations between Russia and the UK are at an all-time low. It should be the courts’ role to carefully examine the assurances offered by Russia in accordance with the Othman criteria, not to draft them. By doing so, the court has deprived itself of the ability to objectively scrutinise the assurances, and has left Mr Dzgoev in the unenviable position of having to rely upon the European Court of Human Rights to grant him interim relief and prevent his extradition while examining his case. Thank goodness for our European partners.
Edward Grange is a partner at Corker Binning