Tamarevichute v The Russian Federation [2008] EWHC 534 (Admin)

[2008] EWHC 534 (Admin)

Case No CO/10554/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19/03/2008

Before

LORD JUSTICE RICHARDS

MRS JUSTICE SWIFT DBE

Between

RAISA ALYAKSOVA TAMAREVICHUTEAppellant

THE GOVERNMENT OF THE RUSSIAN FEDERATIONRespondent

Ben Watson (instructed by Hallinans, Blackburn Gittings & Nott) for Appellant

Melanie Cumberland (instructed by The Crown Prosecution Service) for t he Respondent

Hearing Hearing date: 26 February 2008

Judgment

[1]This is an appeal, pursuant to section 103 of the Extradition Act 2003 (‘the Act’), against an order, made at the City of Westminster Magistrates’ Court on 14 November 2007 by District Judge Wickham, sending the appellant’s case to the Secretary of State for the Home Department (‘the Secretary of State’) for her decision as to whether the appellant should be extradited. On 9 January 2008, the Secretary of State ordered the appellant’s extradition. There is no challenge to the Secretary of State’s decision.

[2]The appellant was represented on the appeal hearing by Mr Ben Watson. Miss Melanie Cumberland represented the respondent.

The background

[3]The appellant is a 50 year old Lithuanian woman of Roma (gypsy) origin who, in August 2001, was resident in the village of Dorozhnoe, in the region of Kaliningrad, in the Russian Federation. Her extradition is sought by the respondent, the Government of the Russian Federation, for drug-related offences, namely (in UK terms) one offence of possession of heroin with intent to supply, together with three offences of the supply of heroin. Those offences are said to have been committed on 14 and 15 August 2001. The appellant was arrested by the Russian police on 15 August 2001. It is said that, whilst in custody, she made a partial admission of guilt. She was then released on the equivalent of conditional bail. Shortly afterwards, in breach of her condition of residence, she left the Russian Federation for the UK, together with her 15 year old daughter. Her disappearance was discovered and her arrest was ordered by the Russian authorities on 15 September 2001. By 15 October 2001, investigation of the alleged offences had been completed and, since the appellant’s whereabouts were not known, the criminal proceedings were formally suspended pending her retrieval.

[4]On 28 March 2006, the suspension was lifted and renewal of the proceedings ordered. The request for the appellant’s extradition to the UK was made on 26 April 2006 and certified on 31 July 2006. The extradition warrant was issued on 9 August 2006. On 10 December 2006, the appellant was arrested in London pursuant to the warrant. The proceedings in the Magistrates’ Court were somewhat protracted and were eventually concluded on 14 November 2007, when the district judge ordered that the case should go to the Secretary of State for her decision on extradition.

The grounds of appeal

[5]The grounds of the appeal are that the district judge should not have made the order she did because, on the evidence before her:(a) she should have found that the appellant’s extradition was barred by extraneous considerations (section 79(1)

(b) of the Act), in that there was a real risk that she might be prejudiced at her trial in Kaliningrad on account of her race; and/or (b) she should not have been satisfied that extradition would be compatible with the appellant’s human rights under Articles 3, 5 and/or 6 of the European Convention on Human Rights (ECHR).

The relief sought

[6]Under the provisions of section 104(1) of the Act, the court has the power to allow the appeal (in which case it must order the person’s discharge and quash the extradition order), to dismiss the appeal (in which case the extradition will proceed) or to direct the judge to decide again the question(s) that he decided at the extradition hearing.

[7]The material part of section 104(2) provides: “(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that –(a) the judge ought to have decided a question before him at the extradition hearing differently;

(b) if the judge had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that – (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;

(c) if the judge had decided the question in that way, he would have been required to order the person’s discharge”. (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if the judge had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if the judge had decided the question in that way, he would have been required to order the person’s discharge”.

[8]Mr Watson submitted that this court should find that the district judge should have decided the case before her differently, or that there was new evidence that would have resulted in her deciding the case differently. In either event, he invited the court to remit the case to the district judge for further consideration of the questions already decided by her. He also invited the court to direct the district judge to decide again the issue (not the subject of this appeal) of whether the appellant’s extradition was barred by the passage of time under the provisions of section 79(1)(c) of the Act. The law

[9]The Russian Federation has been designated a category 2 territory for the purposes of the Act. These extradition proceedings are therefore brought under the provisions of Part 2 of the Act. There is no dispute that the relevant offences are “extradition offences” within the meaning of section 137 of the Act. The next question that arises is whether the extradition is barred for any reason. Extraneous considerations

[10]Section 79 of the Act provides that the judge at the extradition hearing must decide whether the requested person’s extradition to the category 2 territory is barred by reason of, inter alia, “extraneous considerations”. “Extraneous considerations” are defined in Section 81 of the Act, which provides: “A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –(a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or

(b) if extradited, he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions”.

[11]Before the district judge, the appellant relied on both limbs of section 81. The district judge found against her in relation to both limbs. The appellant does not challenge the decision in relation to section 81(a). Her appeal is confined to the district judge’s finding in relation to section 81(b).

[12]Section 81(b) requires the appellant to prove that there is a “reasonable chance” or a “serious possibility” of the relevant prejudice arising if the extradition takes place: Fernandez v Government of Singapore

[1971] 1 WLR 987

at 994; Kenan Ozen v Republic of Germany

[2003] EWHC Admin 2851

and Hilali v The Central Court of Criminal Proceedings No 5 of the National Court, Madrid

[2006] EWHC 1239 (Admin)

. The appellant contends that the district judge should have found that there was a ‘reasonable chance’ or a ‘serious possibility’ that, as a person of Roma origin, she might be prejudiced at her trial in Kaliningrad on account of her race. It is not disputed by the respondent that Roma origin is capable of amounting to “race” within the meaning of section 81. Passage of time

[13]Under the provisions of section 79(1)(c), the judge at the extradition hearing must also decide whether the requested person’s extradition to the category 2 territory is barred by reason of the passage of time. The relevant test is whether, by reason of the passage of time, his or her extradition would be unjust or oppressive. It was argued on behalf of the appellant before the district judge that the extradition was barred pursuant to section 79(1)(c) of the Act.

[14]On the day appointed for the trial of that issue, the appellant applied for an adjournment. That application was refused, whereupon counsel for the appellant withdrew from the case. No evidence was called on behalf of the appellant and no submissions were made. Having considered the available evidence and heard submissions made on behalf of the Russian Federation, the district judge ruled that the extradition was not barred by the passage of time.

[15]The appellant did not appeal against that ruling. However, Mr Watson sought to persuade us that the issue should be remitted back to the district judge, together with those issues which were the subject of the appeal.

Compatibility with human rights

[16]Section 87 of the Act requires the judge to decide whether the requested person’s extradition would be compatible with his or her Convention rights within the meaning of the Human Rights Act 1998. The appellant appeals against the finding of the district judge that her extradition would not be incompatible with her rights under Articles 3, 5 and/or 6 of the ECHR.

[17]In order to establish that her extradition would be incompatible with her Article 3 rights, the appellant would have to prove that there were “substantial” or “strong” grounds for believing that, in the event of her return to the Russian Federation, she would face “a real risk” of being subjected to ill-treatment of the requisite degree of severity as to amount to “torture, inhuman or degrading treatment or punishment”: Soering v United Kingdom

[1989] 11 EHRR 439

at paragraph 91; R (Ullah) v Special Adjudicator

[2003] 1 WLR 770

at paragraph 24; R (Razgar) v Secretary of State for the Home Department

[2003] EWCA Civ 840

[18]In order to establish that her extradition would be incompatible with her Article 5 and/or 6 rights, the appellant would have to establish that there was a “real risk”, in the event of her return to the Russian Federation, that she would suffer a “flagrant denial” of her rights to liberty and security of the person (Article 5) and/or to “a fair and public hearing … by an independent and impartial tribunal” (Article 6): R (Ramda) v Secretary of State for the Home Department

[2002] EWHC 1278

; Soering and Ullah.

The circumstances of the alleged offences and the appellant’s arrest

[19]The Russian Federation is one of those states which is not required, in order for extradition to be ordered, to establish a prima facie case against the appellant in relation to the alleged offences. It is not for this court to make any finding as to the merits of the prosecution on the evidence before it. Nevertheless, by reason of the arguments raised by the appellant, it is necessary to set out the account of the circumstances of her arrest given by both parties.

The respondent’s account

[20]The respondent’s account is set out in documents that accompanied the extradition request. Those documents were before the district judge. They included statements from civilian witnesses who reported that, during the period for which the appellant had lived in Kaliningrad, she had been engaged in the supply of drugs, mainly to young people. The documents suggested that she was caught when a man named Salamatin, an agent of the militia, was instructed by them to make ‘test purchases’ of heroin from her. He visited her at home for this purpose on 14 and 15 August 2001. On the second occasion, he was accompanied by officials of the militia. The documents recorded that a significant sum of money (said to be the proceeds of drug dealing, since she had no other source of income at the time) was found in the appellant’s house on that occasion. She is said to have been arrested in the act of throwing rouble notes into the fire. Further heroin was found at the house, together with some of the paraphernalia of drug dealing, such as scales and cellophane for wrapping drugs. One man present was in possession of heroin which, he claimed, the appellant had just sold to him.

[21]The documents stated that, once in custody, the appellant declined to make a statement while unrepresented by a lawyer. When a lawyer attended to represent her (which is said to have been on 17 August 2001), she made a partial admission relating only to her activities on the day of her arrest.

The appellant’s evidence

[22]The appellant provided a witness statement and gave oral evidence before the district judge. She maintained that the allegations made against her were entirely false. She told the district judge that she had sold her flat in Lithuania and moved to Kaliningrad in 2001. Houses were cheap in Kaliningrad and she felt that she could make a better life there. She was able to read and write Russian. She had been in the Kaliningrad region only a short time (she could not say how long) before her arrest and had not yet obtained work. At the time of her arrest, she was living in Dorozhnoe.

[23]The appellant said that, during the summer of 2001, Salamatin had repeatedly tried to persuade her to buy drugs from him and to sell drugs on his behalf. When she refused, he threatened her. The appellant said that, despite his threats, she maintained her stance. On 15 August 2001, Salamatin had arrived at her home with militia officers. There were other people present at the house. The militia arrested her and pressurised her companions to give evidence against her. There was, she said, no truth in the allegations made by them.

[24]The appellant said that, following her arrest, she was kept in custody for three days without any contact with the outside world. She was terrified. She was deprived of medicine for her diabetes. Eventually, the prosecutor arrived and she believed that he had told the militia to release her. Before her release, she was asked to sign a document. Her spectacles had been taken away and she could not read it. Nevertheless, she signed. She said that she would have signed anything to leave custody. In her evidence, she made no mention of having received any advice from a lawyer. She said that, when she got home, her daughter (who was then 15 or 16 years old) told her that she had been “terrorised” in her mother’s absence. The two of them decided to leave for the UK which they succeeded in doing. She said that she had not been told that she was subject to any bail conditions.

The parties’ contentions

[25]It was asserted by the appellant, both before the district judge and before this court, that she had been deliberately “set up” by the local militia. It was contended on her behalf that the accusations made against her were false, that the authorities had manufactured evidence against her, and that they had required her to sign a false confession. She alleged that these actions, together with the request for her extradition in 2006, formed part of a wider campaign of intimidation and victimisation being conducted by the Russian authorities (in particular the authorities in Kaliningrad) against people of Roma origin.

[26]The respondent’s case, before the district judge and this court, was that the allegations against the appellant were well-founded. The case against her did not consist merely of evidence from the militia and their agents. There was evidence of the appellant’s drug dealing activities from civilian witnesses who had worked for the appellant. There was forensic evidence linking her with banknotes used in the test purchase on 15 August 2001. She was caught in the act of throwing rouble notes into the fire. She herself had made partial admissions of guilt at a time when she had the benefit of legal advice. The records showed that she had declined to say more on account of what she had described as her “bad health”. It was said on the respondent’s behalf that the documents accompanying the extradition request showed that all the correct procedures and formalities had been meticulously observed and that the appellant had been informed of her legal rights at every stage of the process. She had signed the documents at various points, confirming that she had been so informed. She had also signed a statement to the effect that she had no complaints about her treatment while in custody. She had been released on bail. All these features indicated, it was said, that the respondent had behaved entirely properly throughout.

[27]The respondent also contended that the appellant was not a reliable witness. It was pointed out that, when she was asked by the police in London (through an interpreter and in the presence of a solicitor) whether she had ever been to Kaliningrad, she had replied “No”. This was plainly untrue. The appellant’s explanation for her lie was that she had terrible memories of Kaliningrad and had not wanted to remember it. The respondent argued that this was not a satisfactory explanation and that her lie demonstrated that her account of events could not be believed. It was pointed out that no details had been given of the way in which it was alleged that her daughter had been terrorised and that the daughter had not given evidence to the district judge. Nor had any evidence been provided in support of the assertion that the appellant required medication for diabetes that had been denied to her, or that she was unable to read without spectacles.

The findings of the district judge

[28]While recognising that she was not required to determine any evidential issues in respect of the subject matter of the extradition offences, the district judge plainly concluded that the appellant was not a reliable witness. She observed that she “must act cautiously when being asked to accept her evidence as credible”. She was plainly not prepared to accept without more the appellant’s assertions about the circumstances of her arrest and detention, nor her allegation that her arrest and detention, together with the subsequent extradition request, were motivated by the authorities’ discrimination towards people of Roma origin. The evidence of Dr Blitz Before the district judge

The evidence of Dr Blitz

[29]Before the district judge, the appellant relied, in addition to her own evidence, on a written report and oral evidence from Dr Brad Blitz, a comparative political scientist and Russian speaker, whose area of study centres on the position of minority groups in countries within the European Union. Dr Blitz has worked with various human rights organisations (including some engaged in monitoring human rights in the Russian Federation), and with the British Council, and has acted as an independent adviser to the United Nations High Commissioner on Human Rights. Dr Blitz’s report contained an analysis of material in the public domain, published by organisations concerned with human rights in the Russian Federation and with the treatment of minority groups, including the Roma. It was directed at assessing the risk that the appellant’s rights under Articles 3 and 6 would be violated if she were returned to the Russian Federation. Dr Blitz has not visited Kaliningrad and has no personal knowledge of conditions there.

[30]In his report, Dr Blitz referred to human rights abuses which are, he said, endemic in the Russian investigatory, judicial and penal systems. He also referred to abuses that have been encountered specifically by minority groups, including the Roma. The effect of his report is conveniently summarised in this passage from the Conclusions:

“88. There is no question that thestate of human rights protection in Russia is extremely poor and that Russia has been condemned on multiple accounts as a result of the prevalence of torture and mistreatment by police, prison and other law enforcement officials; corruption and political influence in the judiciary, and for the persistence of race-hate crimes, speech and violence towards minorities, above all Roma. 89. There is considerable evidence to suggest that should the defendant be extradited to Russia she would be subject to many potential violations of the ECHR by the Russian authorities. These include not enjoying a fair trial, potential abuse by law enforcement officials during transit, abuse and torture in prison, and that she would enjoy poor living standards both in detention and in prison …”

[31]In the body of his report, Dr Blitz enumerated various reports of ill-treatment of Russian citizens and foreign nationals in the course of interrogation, arrest, detention on remand before trial and in prison after conviction. He quoted directly from reports compiled, and publications produced, by a number of organisations concerned with general human rights issues, such as the European Committee for the Prevention of Torture and Inhuman and Degrading Punishment (CPT), Amnesty International, the International Helsinki Federation (IHF) and the United States Department of State (USSD). He also quoted from material emanating from the European Roma Rights Centre (ERRC) which, as its name suggests, is concerned solely with human rights issues relating to people of Roma origin.

[32]At the back of his report, Dr Blitz included a list of documents (including those from which he had quoted directly) to which he had referred when preparing his report. The documents themselves were not requested by, or supplied to, the respondent and were not produced at the hearing before the district judge. They were, however, put before this court and, as I shall relate later in this judgment, Mr Watson referred to some of them in the course of his oral submissions. In reaching my conclusions, I have taken into account all those documents, including those not specifically referred to at the appeal hearing.

[33]In his report, Dr Blitz referred extensively to the findings of the CPT relating to an inspection visit, made by a delegation of its members in December 2001, to a number of Russian detention facilities and penal institutions. The CPT received allegations from detainees about physical ill-treatment (some so serious as to amount to torture) during the initial questioning of suspects, the object being to extract a confession. Dr Blitz quoted the CPT’s report (page 13) in his own report: “The forms of ill-treatment alleged concern punches, slaps, kicks and blows with a truncheon, baseball bat or other hard objects, sometimes whilst being handcuffed to a radiator or suspended, whipping with wet towels and beating with plastic bottles filled with water. A few allegations were also received of asphyxiation using a gas mask or plastic bag and the infliction of electric shocks. The ill-treatment alleged was an occasion of such severity that it could be considered as amounting to torture”.

[34]Dr Blitz also quoted an Amnesty International document of 2006, which referred to similar findings by the UN Committee Against Torture (CAT). He cited another Amnesty International publication of 2006, which detailed strategies said to be adopted by Russian law enforcement officials in order to deprive suspects of their legal rights during questioning and detention, and to extract confessions.

[35]In connection with the hardships that the appellant would be likely to encounter if held in detention before trial (as, having broken her bail conditions in the past, would be probable), Dr Blitz quoted the CPT’s report on the conditions they observed in one detention establishment during their 2001 visit: “The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench. Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for the supplying detainees with food and drinking water, and access to a toilet was problematic”.

[36]Dr Blitz expressed concern that the independence of the judiciary in the Russian Federation was compromised by reason of pressure from the Executive. In support of this view, he quoted material from the IHF which included the following: “The conduct of criminal proceedings was also negatively impacted by close connections between the judiciary and public prosecutors, with most courts routinely overlooking flaws in preliminary investigations”.

[37]As to the conditions within the Russian prison system after conviction, Dr Blitz referred to the high incidence of tuberculosis (TB) and HIV infection in prison and also the high death rate. He referred also to the ill-treatment of prisoners, citing an extract from a document published by the IHF in 2006: “There is [sic] no comprehensive official statistics of investigations of complaints about tortures in police institutions, and the same situation can be seen with the complaints about tortures in penal institutions. Very few human rights organizations in the Russian regions managed to get some information from Prosecutor’s office regarding torture administration in the penal institutions. Human rights organizations in different regions in Russia noted some specific cases where the penal institution officials were held liable for cruelty to detainees and other official malfeasances, but these cases are rare and unique, and there are considerably less of them than the cases when police officials were held liable for tortures”.

[38]Dr Blitz observed that, since there are only a limited number of women’s prisons in the Russian Federation, female prisoners will often be placed long distances from home and will face lengthy and arduous journeys (sometimes lasting months) in order to reach their destinations. There was no evidence before the district judge or this court as to whether there was a women’s prison in the Kaliningrad region and, if so, whether it was likely that the appellant would be placed there in the event of conviction.

[39]Dr Blitz also made extensive reference in his report to the discrimination which he claimed was shown by the Russian authorities to minority groups. He quoted from a document published by the USSD in 2006: “…Roma, persons from Caucasus and Central Asia, dark skinned persons, and foreigners faced widespread governmental and societal discrimination, which was often reflected in official attitudes and actions … Skinhead groups and other extreme nationalist organizations fomented racially motivated violence”.

[40]Dr Blitz stated that people of Roma origin are particularly vulnerable to such discrimination. He explained that there is a long history of Roma presence in Russia. Historically, the Roma were travelling people but, in 1956, the Soviet Union imposed settlement on them by means of a decree, stipulating certain residency requirements. Specific settlements were created for Roma communities. Dorozhnoe, the village where the appellant lived immediately before her arrest, was one such settlement. However, he said that there is considerable antipathy towards the Roma among the general population, and also on the part of the authorities,

[41]Dr Blitz quoted from a Note published by the International Federation of Human Rights (FIDH) in 2006, referring to the way in which anti-Roma feeling among the general public has been used to political advantage:

“The problem of law enforcement bodies and local administrations which use the discrimatory sentiments of the population towards Roma for their own interests is widely spread. Moreover, in some parts of Northwest Russia local politicians use anti-Roma sentiments as a catalyst in their election campaign. They presented their plan for “cleaning” their city from “gypsies” as the biggest promise to be fulfilled after winning the elections. In their propaganda, presented by the mass media, these politicians openly accuse the entire local Roma population of earning a living on drug trade.”

[42]In his report, Dr Blitz stated that the Russian police are known to target minority groups by making illegal arrests, fabricating evidence, filing false charges, extorting money and using violence to obtain confessions. In support of that contention, he relied on a report by the Human Rights Commissioner for the Russian Federation, together with material from the ERRC. He quoted from an ERRC publication of 2004, which stated: “Substantial research undertaken by the ERRC in Russia in recent years has revealed a disturbing pattern of police abuse of Roma, including fabrication of evidence of drug dealing followed by extortion of money from Romani individuals. Failure to produce the requested sum often results in arrests on drug charges”.

[43]He also quoted from a 2006 ERRC publication: “Roma continues to be exposed to the interference of racism in the administration of justice. The frequent use by criminal justice officials of stereotyping implicating Roma in drug dealing indicates that the conduct of criminal proceedings against Roma is not free of racial bias. In a number of instances, criminal investigation against Roma and subsequent trial proceedings have been carried out in a manner incompatible with international and domestic human rights standards for fair trial. Roma who have suffered human rights violations by law enforcement officials as well as by non-state actors, usually do not have access to an effective investigation of their complaints”.

[44]Dr Blitz asserted that people of Roma origin had frequently been the targets of violent (sometimes murderous) attacks which had, he said, been described as “pogroms”. He cited examples of such incidents which had been described in literature published by the ERRC.

[45]Dr Blitz went on to describe what he referred to as “abuses of Roma” which had occurred in the region of Kaliningrad, many of which he said appeared to have been influenced directly by the intervention of the Governor of the region. He explained that Kaliningrad is the smallest region of the Russian Federation and one of the poorest. It borders onto Lithuania and the Baltic Sea and is thus an enclave, entirely cut off from the Russian mainland. The region is densely populated, multi-national and multi-ethnic. A large proportion of its inhabitants are non-Russians. Until 1991, it was closed to foreigners. Because of its position, the region has long been a centre for illegal immigration and smuggling.

[46]The village of Dorozhnoe, in Kaliningrad, is inhabited solely (or virtually so) by people of Roma origin. In 2006, police officers and government officials evicted the residents of Dorozhnoe and destroyed their homes. Dr Blitz quoted from a document published by the ERRC which described the incident: “The segregated Roma community in Dorozhnoe was created in 1956 when Soviet authorities forced them to settle on what was then unwanted land. Following the fall of the Soviet Union, the local government began the process of granting Roma residents full ownership of their homes. But in 2002, the government halted the process and began a concerted effort to drive the Roma off their land. A government propaganda campaign vilified the community as criminals and drug dealers. At the same time, a series of sham legal proceedings stripped residents of ownership of their homes. The May 29 through June 2 operation capped a series of demolition campaigns carried out by the Russian authorities in Kaliningrad in 2005 and 2006. The local authorities undertook a series of quick court cases proving that the houses of Roma were illegal, which allowed them to obtain permission to demolish the houses. Most of the decisions were made in the absence of the defendants, and none of the court cases were postponed, despite the fact that some of the Roma had not received any summons for the court hearing and learned about the pending demolition of their houses only when the bulldozers arrived in the village. By June 2006, approximately 40 homes, comprising the entire Roma community of Dorozhnoe, had been razed, effectively wiping out the whole village”.

[47]The incident in May/June 2006 is currently the subject of claims (Bagdonavichus and others v Russia) in the European Court of Human Rights by 33 applicants from six Roma families whose houses were destroyed and who were thereby rendered homeless. In an Appendix to his Report, Dr Blitz set out details of the claims, in which it is alleged that, in taking the actions they did, the Russian authorities were motivated by racial animus towards the applicants on account of their Roma ethnicity.

[48]Having dealt with the general position, Dr Blitz turned to consider the appellant’s situation. He stated that the ‘findings’ included in his report supported the appellant’s claims that she had been ‘set up’ by the police and that she would not receive a fair trial should she be returned to the Russian Federation. In his evidence-in-chief, he said, “I’m quite sure that the [extradition] request was made to prosecute and persecute her”. In cross-examination, he said,“I believe from my reading of the evidence the way the case is being presented is that the defendant is being targeted on account of her ethnicity”. He went so far as to observe in his report that there was “no question that she would not[original emphasis] receive a fair trial, especially in Kaliningrad”, which was, he said, “a site of intense anti-Roma activity”. He observed also that the appellant would be especially vulnerable to abuse because of her ethnicity and, if convicted, would be likely to face a lengthy journey to a prison and would then find herself in poor physical conditions. In oral evidence, he observed that the situation for the Roma was worsening, especially in Kaliningrad.

[49]The respondent adduced no evidence in response to that of Dr Blitz. It was argued on its behalf that the allegations in his report were of a general nature and were not specific to the appellant’s position. Most of the evidence to which he referred related to conditions that were alleged to exist in the Russian Federation as a whole, not in the enclave of Kaliningrad. Some of the material Dr Blitz had relied on was several years old and conditions had improved. There was no direct evidence about the incident in Doroznhoe in 2006 and its circumstances were unconnected with the appellant’s case. Thus, it was said, Dr Blitz’s evidence shed no light on the conditions the appellant would in fact face if she were to be tried in Kaliningrad and imprisoned.

The findings of the district judge

[50]The district judge was plainly not impressed by Dr Blitz’s evidence. She rejected his suggestion (in the evidence I have referred to at paragraph 48 of this judgment) that the appellant had been, or was being, persecuted or targeted on account of her race. She found that there was no evidence to support such an assertion and that “Dr Blitz lack[ed] objectivity when faced with the specific or hard facts”. She observed that, despite the evidence he had cited about widespread abuses during the interrogation of suspects, the evidence did not suggest that the appellant herself had been the subject of any ill-treatment or that the conditions of her detention had been substandard. For those reasons, she found that the appellant had failed to establish that the request for her extradition (though purporting to be made on account of the extradition offences) had in fact been made for the purpose of prosecuting or punishing her on account of her race, and that her extradition was not therefore barred by section 81(a) of the Act.

[51]The district judge referred to Dr Blitz’s assertion that, in the event of the appellant’s return, there was no question that she would not receive a fair trial in Kaliningrad and that, by reason of her ethnicity and “the history of racist attacks against Roma in Kaliningrad”, she would be especially vulnerable to abuse. She said: “When using such phrases as “intense anti Roma activity” and “the history of racist attacks against Roma in Kaliningrad” this court would have expected a number of specific incidents to be cited. As it is the report relies solely upon one serious incident occurring in Kaliningrad in 2006 some 5 years after the defendant had left the country and in particular the village of Dorozhnoe”.

[52]The district judge went on to observe that, uncivilised and inhuman as that incident might have been, it was a “quantum leap” to infer that there was a “reasonable chance” or a “serious possibility” that, in the terms of section 81(b), the appellant, if extradited, might be prejudiced at her trial or during her detention solely on account of her race.

[53]Nor did the district judge accept that there were substantial grounds for believing that the appellant would be tortured or subjected to inhuman and degrading treatment. She observed that the evidence of the IHF, cited at paragraph 37 of this judgment, did not support the defence submission as to a potential breach of the appellant’s Article 3 rights.

[54]In connection with potential breaches of the appellant’s Article 6 rights, the district judge quoted paragraph 51 of Dr Blitz’s report, in which he stated: “ … once Roma come into contact with judiciary they are subject to the same general traditions of corruption and political intrigue which have routinely brought the Russian system into disrepute”.

[55]She observed:

“This is a bold assertion unsupported by any cogent or specific evidence.”

[56]She concluded that there was no evidence that there had been any flagrant denial of the appellant’s rights at the time of her previous arrest and detention. Nor, in her view, was there any risk of such a flagrant denial in the future.

[57]The district judge observed that she had initially felt some concern about the use, in some of the documents which accompanied the extradition request, of the term “Gypsy Raisa” to describe the appellant. Dr Blitz had contended that this was a ‘racist label’ that was indicative of discrimination on the part of the authorities. The district judge said that, having considered the context in which the term was used, and the fact that it did not appear in any of the formal documentation, she was satisfied that its use did not suggest that the appellant would be prejudiced at trial as a result of her Roma origin.

[58]The district judge made no reference in her decision to the contention that had been made on behalf of the appellant that the sentence that she would receive in the event of conviction was likely to be so disproportionate to the gravity of the offences with which she was charged as to risk violating her rights under Article 3. The documents prepared in 2001 in connection with the criminal proceedings against the appellant indicated that she was charged with an offence under Article 228, part 4 of the Russian Federation Code. That offence is punishable with between 7 and 15 years’ imprisonment. However, more recent documents, prepared in connection with the appellant’s extradition, indicate that she would be tried for an offence under Article 228, part 3, which is punishable by a sentence of imprisonment of between 5 and 10 years.

The appeal

[59]When dealing with the arguments raised by the parties in the course of the appeal, it is convenient to start with the submissions made on behalf of the respondent.

The respondent’s submissions

[60]Miss Cumberland invited the court to dismiss the appeal. She submitted that the district judge’s findings were entirely correct. She argued that the additional documentation (which had been referenced in Dr Blitz’s report but had not been before the district judge) contained no new material such as would have resulted in the district judge deciding a question before her differently. She sought to persuade this court to consider that documentation itself and to reach a view on it. She argued that the documentation was not so extensive as to make it necessary or desirable to remit the case to the district judge for further consideration.

[61]Miss Cumberland argued that it would be wholly inappropriate for this court to remit to the district judge the issue of whether the extradition was barred by passage of time. No substantive argument had been adduced on this issue before the district judge and her finding had not been appealed.

The law

[62]Miss Cumberland referred to the recent case of Ahmad and Aswat v The Government of the United States of America [2007] HRLR 8, in which this court emphasised that there was a strong presumption that undertakings given by requesting States or judicial authorities would be honoured, even if those undertakings were not legally binding. She cited a passage from the judgment of Laws LJ at paragraph 101:

The law

“Taking stock of the whole case, I would make these final observations. There are I think two factors which constitute important, and justified, obstacles to the appellants’ claims. They are obstacles which might arise in other cases. The first is the starting-point: Kennedy LJ’s observation in Serbeh that “there is (still) a fundamental assumption that the requesting state is acting in good faith”

. This is a premise of effective relations between sovereign States. As I have said the assumption may be contradicted by evidence; and it is the court’s plain duty to consider such evidence (where it is presented) on a statutory appeal under the 2003 Act. But where the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force. The second obstacle is linked to the first. It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it. In this case it has been submitted that the United States will violate, at least may violate, its undertakings given to the United Kingdom. That would require a proof of a quality entirely lacking here.”

[63]Miss Cumberland pointed out that the Russian Federation is a State party to the ECHR, a member of the Council of Europe, has a judge in the Strasbourg Court and is a party to the European Convention on Extradition 1957. It has been designated a category 2 territory for the purposes of the Act and is included among those States which are not required to prove a prima facie case in support of extradition requests to the UK. She submitted that the starting point for the court must therefore be (in the absence of specific, cogent evidence to the contrary) that the Russian Federation will act in good faith and will comply with a requested person’s human rights in accordance with its international obligations. She referred to the guarantee given by the respondent in the extradition request to the effect that the appellant: “… pursuant to the provisions of the international law … will enjoy all the resources for defence, including legal counseling … will not be the subject to torture, cruel, inhuman or degrading treatment or punishment …”.

[64]She submitted that there was no basis for the suggestion that this guarantee would not be honoured.

[65]Miss Cumberland also emphasised the strong public interest in honouring extradition treaties made with other States. She referred to the need for proper evidential support in order successfully to maintain an argument that the extradition of a requested person would amount to a breach of his or her Convention rights. She relied on the case of Miklis v The Deputy Prosecutor General of Lithuania

[2006] EWHC 1032 (Admin)

. In that case, Latham LJ made clear that reliance on evidence which deals in general terms with alleged human rights violations in the requesting territory would not discharge the burden on a requested person. At paragraph 11 of his judgment, he said: “It is, however, important that reports which identify breaches of human rights, or other reprehensible activities on the part of governments or public authorities are kept in context. The fact that human rights violations take place is not of itself evidence that a particular individual would be at risk of being subjected to those human rights violations in the country in question. That depends on the extent to which the violations are systemic, their frequency and the extent to which the particular individual in question could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse”.

[66]Miss Cumberland referred also to the country guidance decision of the Immigration Appeal Tribunal (IAT) in the case of ZB (Russian prison conditions) v Russian Federation CG

[2004] UKIAT 00239

, in which it was held that the up-to-date evidence did not demonstrate that prison conditions in the Russian Federation generally breached Article 3. The IAT found that there was good evidence that considerable improvements had been made to the prison system over the previous few years. It made reference in its decision to the report of the CPT (to which I have previously referred), together with USSD reports and documents from Amnesty International and other organisations. It referred to evidence that the problem of overcrowding in prisons had been tackled, a human rights service had been established to monitor the observance of human rights in the prison system and prison establishments were open to international inspection. Problems relating to health (in particular the high incidence of TB and HIV) persisted, but were not such that it could be said that the appellant in that case was at real risk of suffering from such a disease as a result of his detention. The decision of the IAT concluded: “There is not in our view the slightest basis for saying that the conditions in Russian prisons today are such as to amount to a breach of Article 3 for each prisoner”.

[67]A challenge to the decision of the IAT was rejected by the Court of Appeal: see Batayav v Secretary of State for the Home Department

[2005] EWCA Civ 366

[68]Miss Cumberland informed the court that research conducted on her behalf had not revealed the existence of any country guidance relating to the treatment of Roma people within the criminal justice system of the Russian Federation.

The evidence

[69]Miss Cumberland pointed out that the appellant had moved voluntarily from Lithuania to Kaliningrad, so that her perception in 2000 or 2001 must therefore have been that Roma were not seriously disadvantaged in that region. She pointed out that the documents that accompanied the extradition request showed that the appellant had told the militia that she wished to take out Russian citizenship. She had made no complaints about any discrimination or ill-treatment (save for the allegations of harassment by Salamatin) during the period for which she had lived in Kaliningrad. Nor had she made any allegations of serious ill-treatment during the three days of her detention in August 2001. Miss Cumberland submitted that the evidence in relation to the appellant’s arrest and detention did not suggest that the appellant had been prejudiced by reason of her Roma origins. Rather, the contemporaneous documentation demonstrated that all relevant procedures had been carried out meticulously. Insofar as the appellant did now make complaints about her treatment during detention (lack of medication for her diabetes, removal of her spectacles so that she could not read), she had adduced no independent evidence that she suffered from the relevant conditions. She had not given any particulars of the way in which her daughter had been “terrorised”. Her daughter (who is now in her twenties and in the UK) had not given evidence about that matter, nor about the circumstances of her mother’s arrest at which she was present.

[70]In relation to the evidence of Dr Blitz, Miss Cumberland cited remarks made in the case of Slimani (Content of Adjudicator Determination) Algeria

[2001] UKIAT 0009

by Collins J, sitting as President of the IAT, a forum which frequently receives evidence consisting of the opinion of persons about the situation in the country from which an appellant has come. At paragraph 17 of his judgment, Collins J said: “Often those opinions [i.e. of so-called ‘country experts’] are in letters or in statements and the writer is not called to give evidence or be cross-examined. Some such experts are highly respected … and at the very least their evidence can be said to have been given in good faith and to be based on reliable sources. Others range from the generally reasonable to the unacceptable, and even venal. But all suffer from the difficulty that very rarely are they entirely objective in their approach and the sources relied on are frequently (and no doubt sometimes with good reason) unidentified. Many have fixed opinions about the regime in a particular county and will be inclined to accept anything which is detrimental to that regime. This means that more often than not the expert in question, even if he has the credentials which qualify him in that role, will be acting more as an advocate than an expert witness. While the principles which apply to expert witnesses called in High Court actions are not directly applicable, they give guidance when the weight to be attached to such evidence is considered. The most important are the need for independent assistance to the adjudicator or tribunal, the prohibition against assuming the role of an advocate and the need to specify the facts upon which an opinion is based …”.

[71]Miss Cumberland submitted that Dr Blitz’s evidence must be considered with those remarks in mind. She said that it was evident from the decision of the district judge that she believed that he had acted as an advocate, rather than maintaining the objectivity appropriate to an expert witness. She had been entitled to reach that view.

[72]Miss Cumberland reminded the court that section 81(b) required a judge to consider only the risk of prejudice relating to trial, punishment or detention. She said that Dr Blitz had provided no evidence about the criminal justice system or penal institutions in Kaliningrad. Indeed, he had no personal knowledge of Kaliningrad or the conditions there, which may well be different from those in other parts of the Russian Federation. His evidence was, she said, of a general nature and did not bear on the issue of the risk of prejudice to the appellant specifically.

[73]Miss Cumberland argued that Dr Blitz had placed unwarranted reliance on a single episode, namely the destruction of the homes of Roma people in Doroznhoe in 2006. She pointed out that, although the incident had been the subject of claims to the European Court of Human Rights, there had been no adjudication as yet, so that the material submitted by the claimants in that case should not be accepted as necessarily accurate. She drew the court’s attention to the appellant’s admission to the militia to the effect that the house in Dorozhnoe where she had been living for the previous two months or so before her arrest was “not officially registered as a living building”. Miss Cumberland suggested that this might have been a widespread problem, and that the authorities might have destroyed the houses – not because their occupants were Roma – but because they were not officially designated as living accommodation. She argued also that the destruction of the houses did not relate to the question of whether or not, if returned to the Russian Federation, the appellant would be exposed to risk of prejudice in connection with her trial or detention. The policy of destruction had been that of the local administration, not the criminal courts.

[74]Miss Cumberland submitted that, in the circumstances, the district judge had been fully entitled to give limited weight to the evidence of Dr Blitz and to find that it bore little relevance to the issues she had to decide.

[75]For the reasons already referred to, Miss Cumberland submitted that the district judge was right to find that the appellant’s extradition was not barred by extraneous circumstances.

[76]In relation to the appellant’s contention that her extradition would be incompatible with her Article 3 rights, Miss Cumberland referred to the country guidance decision in ZB (see paragraph 66 of this judgment) and submitted that the district judge had been right to find that the appellant had adduced no specific evidence to suggest that she was at real risk of being subjected to torture or to inhuman or degrading treatment.

[77]Miss Cumberland referred to the appellant’s argument that the period of imprisonment that the appellant would face if she were to be returned to the Russian Federation and convicted of the offences was so disproportionate to the gravity of the offences that there was a real risk that her Article 3 rights would be breached. This argument had been raised before the district judge although it was not specifically addressed in her decision.

[78]Miss Cumberland accepted that it would be open to a court to find, in certain circumstances, that a prospective sentence may be wholly disproportionate and therefore inhuman. However, she argued that the length of the minimum sentence that the appellant would face in the event of conviction (be it five years or seven years) was not wholly disproportionate to the appellant’s alleged criminality. She pointed out that supplying Class A drugs is considered a serious offence in the UK and the maximum sentence is life imprisonment. The respondent’s evidence suggested that the appellant had been involved in commercial supply to young people. She submitted that the length of the minimum sentence was not such as could possibly engage Article 3.

[79]Dealing with the appellant’s contentions that her extradition would be incompatible with her Article 5 and 6 rights, Miss Cumberland stated that, as a signatory to the ECHR, the Russian Federation must be assumed to have the necessary procedures to comply with Articles 5 and 6. Moreover, the evidence before the court suggested that this was the case. The evidence against the appellant had been disclosed in full. Fully documented and established procedures had been followed. The document recording the resolution to reinstate the criminal proceedings against the appellant in 2006 contained a comprehensive list of protections which would be afforded to the appellant in the course of the criminal proceedings. Those protections included the right to complain about the action of the investigator, the prosecutor and the court, and to appeal against any decision of the court. She submitted that the appellant had adduced no specific evidence to support her assertion that, if extradited, she would suffer a ‘flagrant denial’ or a ‘gross violation’ of her human rights pursuant to Articles 5 and/or 6 and the district judge had been right so to find.

[80]I have already mentioned that Miss Cumberland’s primary position was that it was no longer open to the appellant to contend that her extradition was barred by the passage of time. However, in the event that this court did not accept that submission, she argued that, having caused the delay by fleeing the country, the appellant would have to adduce very strong evidence indeed that it would be unjust or oppressive to return her. She argued that the appellant had adduced no evidence about the effects of the delay that had occurred.

The appellant’s submissions

[81]Mr Watson criticised the decision of the district judge in a number of respects. He suggested that she had placed undue weight on the appellant’s denial to the police in London that she had ever been to Kaliningrad. He said that she had also placed undue reliance on the fact that the appellant had moved to Kaliningrad voluntarily from Lithuania. She had failed to recognise the fact that the appellant’s decision had been taken in 2001 and that conditions in Kaliningrad at the time of the hearing before the district judge (which was the relevant time to be considered) may have been very different from those which pertained in 2001. Mr Watson took issue also with the district judge’s finding that the appellant had not been subject to any ill-treatment during her period in custody. He pointed out that her evidence was that she had been terrified and had been deprived of her medication and spectacles, and that her daughter had been terrorised during her absence.

[82]Mr Watson referred to paragraphs 7 and 8 of the district judge’s decision (I have referred to the relevant passages at paragraphs 50-55 of this judgment) which were, he said, central to her view of Dr Blitz’s evidence and to her decision to make an extradition order. He said that it was clear that she believed that Dr Blitz was making somewhat sweeping statements for which there was no evidential foundation. She may also have had doubts about the reliability of some of the sources (in particular, the ERRC, which is a single interest organisation) on which his views were based. However, she did not raise any such doubts with Dr Blitz. Nor did she question him about the references which he had cited, the full texts of which were not before her. He suggested that the district judge had reached her conclusions without appreciating the real weight of the material on which Dr Blitz’s evidence had been founded.

[83]Mr Watson referred this court to a number of documents referenced in Dr Blitz’s report. In particular, he drew the court’s attention to recent (2007) material from the USSD, suggesting the existence of a pattern of ill-treatment, false arrests and extortion directed by the Russian police against minority groups, including the Roma. He pointed out that the USSD (which must, he said, be considered a reputable source) quoted a 2005 report by the ERRC which had noted “alarming patterns” of human rights abuses of Roma in the Russian Federation and gave details of attacks on Roma and their property. He commented that it appeared that the USSD regarded the ERRC as a reliable source of information. He also cited the Note published in 2006 by the FIDH to which I referred at paragraph 41 of this judgment. He said that the FIDH was not an organisation that was solely concerned with the Roma and there was no reason to regard the contents of the Note as other than reliable.

[84]Mr Watson referred also to a report published in May 2006 by the Council of Europe’s European Commission against Racism and Intolerance (ECRI), extracts from which appeared on the ERRC’s website. The report included the following passages:

“93. Relations between the police and the Roma can be very problematic. The issues raised in other parts of this report concerning the conduct of law enforcement officials are particularly relevant to Roma: they are victims of arbitrary identity checks, detention, extortion of money and the fabrication of incriminating evidence by members of the police. There are allegations of some Roma having been ill-treated and even tortured by police officers, resulting in some cases in death of the victim. 94. In 2002 a nation-wide operation was carried [out] in order to combat drug trafficking. This operation was called “Tabor”, which means “Roma encampment”

. It consisted of random police raids against several Roma encampments in order to find drugs and drug-dealers, without concrete reasons for believing that there were drugs in the encampments searched. Roma organisations have complained about this discriminatory operation to the Ministry of Interior, whose representative accepted that it was a matter for regret and promised that it would not be repeated. Unfortunately, it seems that since then, local police, such as the police of St Petersburg in 2004, have occasionally organised raids under the same pretext as “Tabor”… 97. The level of stereotyping of and prejudices against Roma disseminated in the media remains high. Roma are generally portrayed as naturally inclined to crime, especially drug dealing. In some cases the media have even incited to racial hatred, notably by reporting open calls to murder Roma, without issuing any warning or condemnation. …”.

[85]Mr Watson drew the court’s attention to a passage from the report that referred to the additional discrimination suffered by non-Russian Roma:

“99. ECRI notes with regret that the Roma coming from CIS countries experience double discrimination resulting from their ethnic origin combined with their lack of Russian citizenship. Particular attention should therefore be paid to their situation in taking measures to combat racism and racial discrimination against the Roma in general, in order to ensure that they benefit from these measures.”

[86]Mr Watson referred to other material, which demonstrated the use of ‘hate speech’ against Roma by the media and the Russian authorities. He submitted that this gave rise to concerns about how the appellant would be treated in prison, not only by the prison staff, but also by her fellow prisoners.

[87]Mr Watson also drew the court’s attention to a submission made in April 2006 by the ERRC to the CAT, which described some alleged human rights violations against Roma that had taken place over the previous five years or so. They included the first steps, taken in February 2006, to demolish houses in Dorozhnoe. A later ERRC publication described an attack by a group of skinhead youths on a Roma family in April 2006, which left two members of the family dead and six others severely injured.

[88]In support of the appellant’s contention that she would not receive a fair trial if returned to the Russian Federation, Mr Watson referred the court to a section in the ERRC report of May 2005, “In Search of Happy Gypsies: Persecution of Pariah Minorities in Russia”. The section contained allegations of racism within the criminal justice system and of procedural irregularities during the trial of Roma defendants. Examples of alleged injustices were given.

[89]Mr Watson also referred to the detailed account of the circumstances of the destruction of homes in Doroznhoe contained in the claimants’ application in the Bagdanovichus case. He emphasised the part which is said to have been played in the incident by the local courts. The Summary to the application states: “Rather than prosecuting individuals for alleged involvement in crime … the authorities instituted legal proceedings in the Gurievsk District Court. In proceedings that violated fundamental standards of due process, the Gurievsk District Court declared the residents’ occupancy of their homes illegal, thereby authorizing the government to demolish the homes. All of the applicants appealed these decisions, but in further proceedings that denied the applicants a fair trial, the Kaliningrad Regional Court upheld the District Court’s conclusions”.

[90]Elsewhere in the application, it is alleged that the bailiffs responsible for serving the applicants with notice of the court proceedings did not trouble to effect service on the correct people, as a result of which many of the applicants were unaware that there were proceedings before the courts until those proceedings had finished. Those who did attend the hearings, and who instructed lawyers, complained that the legal proceedings before both the local and the appeal courts were brief and perfunctory.

[91]Mr Watson submitted that, had the district judge given Dr Blitz’s report the weight that (in the light of the documents to which he referred the court, and others within the documents bundle) it plainly deserved, she would or should have reached different conclusions. In particular, she should have concluded that there were substantial grounds for believing that the appellant was at real risk, by reason of her Roma origin, of prejudice at her trial, or during any period of detention that might follow. He reminded the court that the respondent had adduced no evidence to counter that of Dr Blitz. In particular, it had put forward no evidence about any improvements in the treatment of Roma, nor any explanation of the events that took place in Doroznhoe in 2006.

[92]Mr Watson accepted that any human rights violations relied on must be systemic, frequent and must specifically affect the individual concerned: Miklis (see paragraph 65 of this judgment). He contended that those requirements were satisfied in this case. He relied on the matters he had raised in support of his contentions under section 81(b). He argued that the appellant was specifically vulnerable to the types of violation described in the sources relied on by Dr Blitz. She was vulnerable because she was a Roma, a resident of the Kaliningrad region and a former resident of Doroznhoe. He suggested that these characteristics rendered her liable to be deprived of effective procedural rights at her trial.

[93]Mr Watson submitted that those same characteristics gave rise to a risk of prejudice within the prison system. He accepted that he could not go behind the country guidance given by the IAT in ZB. Nevertheless, he argued that there was material from which the court could conclude that conditions in Russian prisons had deteriorated since ZB was decided. He cited a reference in the 2007 document from the USSD (referred to at paragraph 83 of this judgment) which stated that “[p]rison conditions [in the Russian Federation] remained extremely harsh and frequently life-threatening”. He referred also to another report, which suggested that the problem of overcrowding persists in some prison establishments. He argued that, as a woman, the appellant would face particular hardship in the prison system. She may well face a long and arduous journey to a prison far from her former home. She would be liable, on account of her Roma origin, to ill-treatment by the prison authorities and her fellow prisoners. Indeed, she would be at risk of double discrimination on account of her Lithuanian nationality.

[94]In connection with the appellant’s contention that extradition would be incompatible with her Article 3 rights, Mr Watson argued also that the minimum sentence she would face on conviction (which he maintained would, on the face of the documents, be seven years) was wholly disproportionate to the offences with which she had been charged. The amount of heroin involved in the charges was, he said, relatively small (16 wraps or about 1.6 grams) and its street value (the equivalent of about £75) modest. She had no previous convictions. The minimum sentence was well in excess of the sentence she could have expected to receive had she been convicted in the UK. Moreover, she would serve the whole of any sentence imposed, rather than (as in the UK) only half. He pointed out that the minimum sentence would not be subject to any deduction for mitigating circumstances. He argued that, even if the appellant was sentenced to the minimum period specified for the offences (and she might receive a longer sentence), the period of imprisonment would be so disproportionate as to amount to inhuman treatment incompatible with her Article 3 rights.

[95]Mr Watson did not advance any additional arguments in support of the appellant’s contentions in relation to Articles 5 and 6. He told the court that those arguments were in effect subsumed by the matters he had already raised in connection with section 81(b) and Article 3. He submitted that, if the court were minded to accept his contention that the case should be remitted to the district judge for her to reconsider her decision, the issue of whether the extradition was barred by the passage of time should be remitted also. He questioned why the decision had been taken by the Kaliningrad authorities in March 2006 to revive the criminal proceedings against the appellant. He accepted that it may be that it was only at that time that the authorities had become aware of the appellant’s whereabouts. However, the possibility did exist that the decision was connected with a general campaign of persecution against the Roma in Kaliningrad at that time. Mr Watson told the court that his solicitors had asked the Crown Prosecution Service (which represents the respondent in these proceedings) on a number of occasions to enquire from the respondent why the decision had been taken in 2006, but had received no reply. If the case were remitted back to the district judge for reconsideration, the matter could be further investigated. He argued also that the decision to ‘revive’ the case against the appellant and seek her extradition was relevant to the issue of prejudice under section 81(b) of the Act.

Discussion and conclusions

[96]It is axiomatic that this court must have regard to the strong public interest in honouring extradition treaties with other states. The court must start from the premise that the Russian Federation, as a state with whom the UK has mutual extradition arrangements, will act in good faith. It is true that, in the case of the Russian Federation, there are not the same close ties and long history of co-operation (including co-operation relating to extradition) as those (referred to by Laws, LJ in Ahmad and Aswat) which characterise the relationship between the UK and the United States of America. Nevertheless, the Russian Federation is a signatory to the ECHR and a member of the Council of Europe and the assumption must therefore be – in the absence of cogent evidence to the contrary – that it will honour its international obligations and will not act in violation of a requested person’s human rights. In this case, the extradition request contains a specific guarantee that the Russian authorities will not breach the appellant’s Article 3 rights and will afford her proper facilities for her defence. Once again, cogent evidence would be required to persuade the court that this specific guarantee will not be honoured.

[97]With those matters in mind, it is necessary to examine the evidence adduced by the appellant in support of her contention that the district judge was wrong to make the order she did.

Extraneous considerations

[98]There is no doubt in my mind that the appellant has adduced powerful evidence of widespread discrimination against the Roma within the Russian Federation. Dr Blitz has cited evidence of such discrimination from a number of sources, the reliability of which there is no reason to doubt. All paint a similar picture of anti-Roma activity by members of the public, the media, politicians and the Russian authorities. This activity includes attacks on Roma people and their property, the voicing of anti-Roma sentiments in the media and in political speeches, and human rights abuses by the law enforcement authorities.

[99]The fact that, if returned to the Russian Federation, the appellant would be at risk of suffering general prejudice as a result of her Roma origin is not, however, sufficient to constitute a bar to her extradition under the provisions of section 81(b) of the Act. She must demonstrate that there exists a “reasonable chance” or a “serious possibility” of her being prejudiced at her trial, or “punished, detained or restricted in her personal liberty” by reason of her race.

[100]While section 81(b) is related to what may happen in the future, it is relevant to look at what has happened to the appellant in the past. She alleged that she was ‘set up’ by the local militia, presumably because of her Roma origin. It should be noted that this was alleged to have happened at a time when, according to the evidence before this court (see, for example, the extract quoted from the ERRC document at paragraph 46 of this judgment), the authorities were apparently adopting a more liberal attitude towards the Roma in Doroznhoe. It is difficult to see why they should have chosen to target the appellant on account of her race at that particular time.

[101]Moreover, even on her own account of events, the appellant suffered no serious ill-treatment during her detention. Nor did she report having been subjected to any improper questioning or pressure to confess. She made no complaint that she had been kept in conditions that were inhuman, or even substandard. After a relatively short period of detention, she was permitted to return to her home. There is, therefore, nothing to suggest that she was subjected to any prejudice on account of her Roma origin in 2001.

[102]Dr Blitz suggested that the references within the documents accompanying the extradition request to the appellant as “Gypsy Raisa” were indicative of racial discrimination towards her within the criminal justice system. Having studied the analysis of the use of the term prepared by Miss Cumberland, I am satisfied that the district judge was right to conclude that it was not indicative of prejudice on the part of the authorities. The term “Gypsy” is used mainly by the civilian witnesses and, indeed, is used by the appellant herself to describe the person from whom she bought her home in Doroznhoe. This would accord with Dr Blitz’s observation in his report that “people of Romani ethnicity prefer to call themselves ‘Tsygane’ i.e. ‘Gypsies’”.

[103]The appellant’s case was that the position of the Roma – in particular their position in Kaliningrad – had deteriorated since 2001. She relied on the destruction of the settlement of Doroznhoe in 2006, which rendered the population homeless. This act, it is said, demonstrates the attitude of the Kaliningrad authorities towards the Roma, together with their complete disregard for the rights of the Roma people. Whether the events amount to the continuing “intense anti-Roma activity” referred to by Dr Blitz is debatable. On any view, however, it was an extremely worrying incident.

[104]The events of 2006 are central to the appellant’s contention that she would be subject to prejudice on account of her race if she were to be returned to Kaliningrad for trial. If the accounts contained in the various documents before the court are accurate (and it is important to remember that there has as yet been no adjudication in the case of Bagdanovichus), the eviction of families and destruction of the Doroznhoe settlement was motivated by enmity on the part of the civil authorities in Kaliningrad towards the Roma. More relevant for the purposes of this appeal, however, is the part played by the courts in the evictions. If it were to be shown that the courts had been complicit in what they knew to be anti-Roma activity and had been prepared to act unfairly in support of the civil authorities, this would have an important bearing on the issue of whether, if she were extradited, the appellant could expect to receive a fair trial before a criminal court in Kaliningrad.

[105]It does not seem to me that there is any clear evidence of complicity on the part of the courts. There are, as I have said, complaints that some residents were not properly served with the court documents and were not aware of the proceedings until they had been completed. It is clear, however, that other residents were aware of the proceedings in advance and were able to instruct lawyers to represent them. There cannot therefore have been a general policy to conceal the fact that the proceedings were to take place. Those who did attend the hearings complain that they were brief and perfunctory, as were the hearings in the appeal court.

[106]These suggestions do not appear to me to amount to unequivocal evidence that the courts were implicated in any discriminatory activity that may have been perpetrated by the civil authorities. The courts may have been unaware that notice had not been served on some residents and may have assumed that they had elected not to attend. The fact that the court hearings appeared brief and perfunctory may indicate merely that the legal issues involved were clear cut and required little time to resolve. Without further information (e.g. sight of the relevant judgments), it is impossible to say. It may be that the civil authorities concealed from the courts the real reason for the proceedings. In this context, I note that the FIDH document (to which I referred at paragraph 41 of this judgment ) stated: “The problem of growing drug addiction among young Russians is constantly used as a reason to scapegoat Roma. However, in order to evict Roma officially, totally different arguments are presented in the courts”.

[107]In that same document, an example is given of a court in another part of the Russian Federation finding in favour of Roma families in eviction cases brought by the local mayor. This does not support the proposition, advanced by Dr Blitz in his report, that the appellant would inevitably be denied a fair trial on account of her Roma origin.

[108]Another matter which is potentially relevant to the issue of prejudice is the timing of the extradition request. It was made over four years after the appellant’s departure from the Russian Federation and at a time (April 2006) when the destruction of the settlement of Doroznhoe was in train. It was argued on behalf of the appellant before the district judge that the decision to revive the case against the appellant and to seek her extradition had been taken as a result of a desire to persecute her on account of her race. The district judge rejected that argument and the appellant did not appeal against that part of her order. Nevertheless, it is said that the matter is relevant to the question of whether the appellant might be prejudiced in the future.

[109]It is perhaps surprising that the appellant’s extradition should have been sought so long after the alleged offences were committed, and in a case involving relatively small quantities of drugs. Moreover, this court was told that (save for a series of related requests – none of which were successful - all made in connection with an alleged company fraud) the extradition request in this case was the first such request to be made by the Russian Federation to the UK since the Act came into force. As I have said, the timing of the decision to revive the proceedings against the appellant was very close to the start of the action to destroy the settlement of Doroznhoe.

[110]These factors have caused me to consider carefully whether there was some racial motive behind the request for extradition that might cause the appellant to suffer relevant prejudice if she were to be returned to the Russian Federation. However, I can see no reason to believe that this is so. It seems likely that the timing of the request merely reflects the fact that it was in early 2006 that the Russian authorities became aware of the appellant’s whereabouts. Moreover, it seems implausible that the very authorities that were seeking to expel Roma residents from their homes in Doroznhoe should, for purely racial motives, invoke expensive and time-consuming extradition procedures in order to secure the return to Kaliningrad of one of those residents.

[111]In the event that the appellant is returned to the Russian Federation, it seems unlikely that she will be granted bail pending her trial. A decision to remand her in custody would no doubt be based on her previous breach of bail conditions, rather than on racial considerations. In the event of conviction, the expectation would be that any sentence of imprisonment imposed upon her would be directed at the seriousness of the offences of which she was convicted, rather than her Roma origin. I have seen no evidence that would suggest that she would be at real risk, on account of her race, of receiving a more severe sentence than if she were a non-Roma. I note that she would have the right to appeal against any sentence imposed upon her. That would afford some protection against a sentence that was unduly severe by reason of racial discrimination.

[112]In all the circumstances, I find that the district judge was fully justified, on the material before her, in finding that the appellant had not established that there was a “reasonable chance” or a “serious possibility” that, if extradited, she would be prejudiced within the meaning of section 81(b) and that her extradition was therefore not barred on that ground. I do not accept that the district judge came to that conclusion because she formed an unwarrantedly unfavourable impression of either the appellant or Dr Blitz. She heard the witnesses give their evidence and was entitled to make the findings she did. I am satisfied that, even if she had seen the additional material that was available to us, her decision on this issue would have been no different. Compatibility with human rights Article 3

Compatibility with human rights

[113]In order to establish that there exist “substantial” or “serious” grounds for believing that, if she were extradited and detained before her trial and/or after conviction, she would face a “real risk” of being subjected to torture or inhuman or degrading treatment, the appellant must (following the decision in ZB) establish that there are circumstances over and above the general conditions in Russian prisons examined in that case that give rise to such a risk. The evidence before this court about the developments in Russian prison conditions since 2004 is limited and is certainly not such as would enable me to find that those conditions are in general significantly worse than the IAT found in ZB. Nor is there, in my view, any compelling evidence that the appellant’s Roma origin or Lithuanian nationality is likely to result in ill-treatment by the prison authorities or by her fellow prisoners. I accept that there is a risk that she might have to undergo the hardships associated with a long journey to a prison some distance from her former home. However, since no information is available as to whether there is a woman’s prison in Kaliningrad (and, if so, whether she would be likely to be placed there), this can be regarded only as a possibility. Even if the possibility were to materialise, I am not persuaded that the evidence about general conditions in transit would justify a finding that there was a real risk to the appellant of ill-treatment of such severity as to amount to a breach of her Article 3 rights.

[114]Nor do I consider that the fact that the length of sentence (whether the minimum is five or seven years) that the appellant would face in the event of her conviction would be so wholly disproportionate to the gravity of the offences with which she is charged as to amount to a violation of her Article 3 rights. It is true that a sentence of five or seven years would be more severe than that which she could expect to receive if convicted of the same offences in the UK, particularly since she would be required to serve the whole period in custody. However, the supply of illegal drugs is a significant social evil and different countries seek to eradicate it by differing means. To quote Laws, LJ in R (Ralston Wellington) v The Secretary of State for the Home Department

[2007] EWHC 1109 (Admin)

at paragraph 47: “It is not, ordinarily, for this country to require, as a price for extradition, another country to adopt the sentencing practice of this country”.

[115]Thus, just because the respondent chooses to impose severe sentences on drug dealers does not mean that the rights of requested persons under Article 3 will be violated.

[116]For all these reasons, I conclude that the district judge was fully entitled to find that the proposed extradition was compatible with the appellant’s rights under Article 3. Moreover, I am satisfied that her decision would have been no different if she had had before her the additional material that was available to this court.

Articles 5 and 6

[117]There is no need for me to consider separately the appellant’s appeal in respect of her rights under Articles 5 and 6. My findings are the same as in respect of Article 3.

Passage of time

[118]The issue of whether the extradition is barred by the passage of time is not before this court and there is no basis for remitting it to the district judge. Suffice it to say that there are in my view no grounds on which the appellant could successfully contend that her extradition would be oppressive or unjust by reason of the passage of time.

Disposal

[119]I would therefore dismiss this appeal. LORD JUSTICE RICHARDS

[120]I agree.

Cited in 1 later judgment

Lutsyuk v Government of Ukraine 2013