Following the Russian invasion of Ukraine and the discharge of two Russian extradition requests last week, Ben Brandon and Jessica Dunk ask what is the future for Russian extraditions?
On 9 March 2022, in the latest of a long line of cases discharged on the basis of inadequate or unreliable assurances on Russian prison conditions, Senior District Judge (SDJ) Goldspring halted two extradition requests in RF v Shulgin & Zhuravleva. The SDJ found that long-standing concerns expressed by the English courts around prison conditions in the Russian Federation, coupled with a lack of independent monitoring, had yet to be adequately addressed and that assurances provided by the Russian authorities could not be relied upon.
Will the UK continue to extradite to Russia?
UK courts have not allowed extraditions to Russia for a number of years, finding in numerous cases that there is a real risk of inhuman and degrading treatment in Russian prisons and that accordingly any extradition to Russia would violate Article 3 of the European Convention on Human Rights.
In the 2013 case of Fotinova, the then SDJ reversed the burden of proof on the issue of Russian prison conditions, indicating in a footnote to the judgment that requested persons (RPs) could expect to be discharged on Article 3 grounds in the absence of evidence from Russia demonstrating improvement in its prisons, or specific assurances that RPs would be held in Article 3 compliant conditions.
Following Fotinova, in less than a handful of cases, extradition was allowed based on assurances provided by the Russian authorities. However, UK courts have refused to extradite to Russia since the 2018 case of Shmatko, in which the High Court in London found that a lack of independent monitoring meant that Russian assurances could not be relied upon.
In more recent cases, the current SDJ has declined to adopt the approach in Fotinova, and has proceeded to a full evidential hearing to afford Russia an opportunity to address Article 3 and monitoring concerns. However, in Shulgin & Zhuravleva, assurances were provided on broadly similar terms to those which had been rejected in seven other cases. In those circumstances, both requested persons were discharged without the court moving to a full hearing of the evidence.
Ultimately, it may not be a matter for the courts alone to determine whether Russian extradition requests continue to come before the UK courts. At the time of writing, the Home Secretary Priti Patel appears to have resisted calls to suspend the extradition arrangement with Russia or 'de-designate' the territory under the Extradition Act 2003 (the Act) following the invasion of Ukraine.
Even in the absence of a suspension of the extradition arrangements between the UK and Russia the, the Secretary of State has a part to play in the future of Russian extraditions. Currently, the Secretary of State must send the papers to an extradition judge where a valid extradition request is received from Russia, a country designated under Part 2 of the Act. The sending of otherwise valid extradition requests to an extradition judge could be delayed, perhaps indefinitely.
Other extraneous factors will also affect the future of Russian extraditions. On 15 March 2022, Russia announced that it was withdrawing from the Council of Europe, and declared its intention to denounce the European Convention of Human Rights, having had its rights of representation suspended in February. Dmitry Medvedev, the Deputy Chairman of the Security Council of Russia, has stated that the country’s departure from the Council would allow Russia to reintroduce the death penalty.
Having been unable to persuade the UK courts for some years that extradition would not result in human rights violations, Russia's departure from the Council of Europe and denunciation of the cornerstone of human rights law in the UK makes it near impossible to imagine how it might do so at any time in future.
Following the invasion of Ukraine, 'the five eyes' states (the UK, U.S., Canada, Australia and New Zealand) called for Russia to have its access to INTERPOL's systems suspended entirely. Although there is no present indication that this extraordinary step will be taken, on 10 March 2022, INTERPOL announced that diffusions from the National Central Bureau in Moscow can no longer be sent directly to INTERPOL member countries, but must first be approved by the General Secretariat.
Russia has been the target of criticism in recent years for its over-use of diffusions which, unlike red notices, are not checked at Interpol HQ in Lyon to ensure compliance with INTERPOL rules. Not only will this decision make it more difficult for Russia to make requests for arrest and detention of RPs directly to other INTERPOL member states, it may also indicate a willingness by INTERPOL to scrutinise Russian requests for notices with greater rigour in the future, which is likely to lead to increased numbers of refusals to process requests.
Decisions by INTERPOL to delete notices or diffusions do not bind an English court. But that organisation's decisions are increasingly thorough and well-reasoned, and no doubt will be deployed to forensic advantage in future Russian extradition hearings.
What might happen next?
All these developments mean that it is highly unlikely that any extraditions from the UK to Russia will take place in the foreseeable future.
It remains to be seen whether more permanent measures will be taken that might affect any future extradition relationship. Currently, the Act does not require Russian requests to establish a prima facie case for extradition to be ordered. In light of the significant volume of Russian cases that the court has found to be politically motivated, and particularly following its departure from the Council of Europe, that position may change.
As long as Russia remains a designated category 2 territory under the Act, the Home Secretary is required to send valid extradition requests to the court. Many have called for Russia to be stripped of its designation. Despite reports that the UK will suspend extradition arrangements with Russia, no announcement has been forthcoming at time of writing.
Ukraine Justice Alliance
Ben Brandon and Mishcon de Reya are part of the Ukraine Justice Alliance, a coalition of lawyers, law firms and NGOs working to support Ukrainians in response to Russia's catastrophic invasion. If you might be able to provide legal assistance to Ukraine, you can contact the Ukraine Justice Alliance here.