The Russian Federation v Shuppe (Articles 3 and 6 and abuse of process) [2017] EW Misc 19 (EXTRADITION) (04 August 2017) [2017] EW Misc 19 (EXTRADITION)

EWMISC

The Russian Federation v Shuppe (Articles 3 and 6 and abuse of process) [2017] EW Misc 19 (EXTRADITION) (04 August 2017)

[2017] EW Misc 19 (EXTRADITION) · 2017-08-04

This is an application by the Russian Federation ("RF") against Georgy Nikolaevich Shuppe ("RP"). I am being asked to send this case to the Secretary of State for her to decide whether the defendant is to be extradited. The application is opposed. Russia is a Category 2 territory. This is an accusation case.

The RF was represented by Mr Peter Caldwell leading Mr Richard Evans and the RP was represented by Hugo Keith QC leading Mr Ben Watson.

The substantive hearing took place on 3, 4, 5 and 7 July 2017. Sequential written submissions were then provided by the parties prior to judgment being given today.

I heard from the following witnesses called on behalf of the RP.

Vladimir Krasnov (3 ,4 and 5 July)

Professor Bill Bowring (4 and 5 July)

Dr Vladimir Gladyshev (5 July)

Professor Rod Morgan (7 July)

Dr Alan Mitchell (7 July)

No evidence was called on behalf of the RF.

There were seven ring binders of written evidence together with emails and supplementary documents submitted before and during the hearing. I have not summarised all the written evidence placed before me. I have heard and considered the material that has been drawn to my attention.

There is another Russian Federation extradition case (Russian Federation v Gerard Walsh) in which Professor Bowring, Dr Mitchell and Professor Morgan are due to give evidence. That case is listed for hearing before me at this court on Tuesday 3 October, Wednesday 4 October and Thursday 5 October 2017. One of the issues raised on behalf of Mr Walsh is an Article 3 argument concerning Russian prison conditions.

At an earlier case management hearing it was agreed, in an effort to avoid the return of those witnesses in October, that the Walsh legal team led by Mark Summers QC would attend court on Tuesday 4 July and Wednesday 5 July to hear Professor Bowring's evidence and Friday 7 July to hear from Dr Mitchell and Professor Morgan's evidence and cross-examine those witnesses.

At the start of play on 5 July Mr Caldwell confirmed that he did not wish to cross examine Professor Bowring concerning his evidence about Russian prisons and with my leave the Walsh team then left court.

The Walsh legal team returned to court on Friday 7 July and Mr Summers cross-examined both Dr Mitchell and Professor Morgan after they had been cross examined by Mr Keith.

The Alleged Offences In Outline

The RF alleges that the RP is guilty of offences of fraud (contrary to article 159(2) of the Russian Criminal Code) and murder (contrary to article 105(2)). In relation to the fraud offence the RP is alleged to have conspired with others, including a Mr Nekrich, to fraudulently acquire properties belonging to eighteen Russian companies. Mr Mineyev (also referred to as Mineev), variously described as the beneficial owner and manager of the properties, attempted to restore the properties to the eighteen Russian companies but it is alleged that the RP together with Mr Nekrich instructed a Mr Bagaudinov to arrange Mr Mineyev's murder.

Preliminary Procedural Requirements

The Secretary of State has issued a certificate and forwarded the request and certificate to the court. My first task at the extradition hearing is to determine that the documents sent to the court by the Secretary of State include the documents and information required by section 78(2), namely the documents referred to in section 70(9); that is the request and the section 70 certificate, particulars of the person whose extradition is requested, particulars of the offence specified in the request and the requirement of a warrant for the arrest of the requested person. If the documents are deficient the requested person must be discharged.

The requested person takes no issue with the paperwork. As I am satisfied that the paperwork is in order I must go on to decide the three questions set out in section 78(4). The first question is whether on a balance of probabilities the person appearing or brought before me is the person whose extradition is requested. This is not in dispute.

The second question is whether the offences specified in the request are extradition offences. This is also not in dispute.

The third question is whether copies of the documents sent to this court by the Secretary of State have been served on the requested person. Again, this is not in dispute.

I am satisfied that the request complies with the requirements of the Act and is a valid request and further that the conduct described in the request amount to extradition offences.

The Requested Person

Mr Shuppe did not give evidence and has not submitted a statement. The only information this court has about him is what is disclosed in the skeleton argument prepared on his behalf and from third party sources. There is no requirement for him to give an account either orally or in writing.

He is the son-in-law of the late Boris Berezovksy. He is said to have been Mr Berezovsky's business partner, close friend and confidante until Mr Berezovsky died on 23 March 2013. Mr Berezovsky is said to have been instrumental in the rise to power of Vladimir Putin who became acting President on 1 January 2000 in succession to President Yeltsin.

Messrs Berezovsky and Putin subsequently fell out and thereafter relations between them became hostile and bitter. Mr Berezovsky was granted political asylum by the British authorities in 2003 and two attempts to extradite him to the RF were rejected.

Mr Shuppe left the RF in 2001 with his then wife Ekaterina, Mr Berezovsky's daughter. Mr Shuppe and his wife are now separated but have maintained a cordial relationship.

Mr Berezovsky, generally referred to as an oligarch (a major private owner of significant Russian economic assets), is said to have died in straitened financial circumstances. It is believed in some quarters in Russia that the RP either knows the whereabouts of Mr Berezovsky's funds or has control of those funds.

The Case Against Mr Shuppe

The requirement for a requesting state to establish a prima facie case only applies to those Part 2 countries that have not been designated by the Secretary of State for the Home Department. The Russian Federation has been so designated and is therefore not required to prove evidence of a prima facie case.

Bearing that fact in mind it remains instructive to consider the case against Mr Shuppe. In contrast with most other extradition cases this court has been provided with English translations of the witness statements in the Russian criminal proceedings. It has not been suggested on behalf of the RF that there are other witness statements which have been omitted from the papers or that the translation of the witness statements in the court bundle are defective in any way.

As to the specifics of the prosecution case, the Defence Skeleton Argument states (paragraph 46), "…it is alleged that between October and December 2013, assets held by Alexander Mineev were successfully stolen from him by the taking of control of 18 Russian companies, together with the title to 21 non-residential properties held by those companies. It is said that this was achieved by forging the signature of the director of four overseas companies, which were the ultimate owners of the 18 Russian companies, and then transferring control to the conspirators of both the 18 companies and the title to the properties. Then, during two weeks in December 2013, it is alleged that control of the management company was also obtained by deception. Finally, in January 2014, and therefore after the fraud had been effected, Mineev was murdered in broad daylight while sitting in the front passenger seat of a car in Korolev City.

47. As to Mr Shuppe's alleged role, it is said by the RF investigators that he was, in effect, the architect of the whole enterprise, acting together with a Mikhail Nekrich. It is alleged that between March and April 2013, Mr Shuppe conceived the entire plan, "assumed leadership for the criminal group", and was the ultimate beneficiary of the fraud."

The evidential case against the RP is said to be based on the evidence of four witnesses; Messrs Shmagin (an anonymous witness), Bogolubsky, Karamatov and Kurylenko. An examination of the statements of the witnesses Karamatov and Kurylenko show that they make no mention of the RP in their statements. The statement of Mr Bogolubsky (the lawyer for the defrauded Russian companies and suspected by the defence team to also be the anonymous witness Shmagin) simply refers to providing legal services in the form of company registration services to Mr Nekrich and the RP.

The anonymous witness Shmagin states, "Nekrich informed Bogolubsky that he would enter the real estate business jointly with his acquaintance Georgy N Shuppe, who would thus become a beneficiary owner." At the conclusion of his interview Mr Shamagin states, "I had learned about the circumstances which I articulated during the interview, from a conversation between one of my and M. Nekrich's common acquaintances and myself." His statement is that of an anonymous witness giving an account of what an unnamed third party reported to him on an unknown date and in an unknown place. The circumstances in which the unnamed third party obtained the information is not explained.

An "Investigative Summary" is attached to the letter sent by the Prosecutor General's Office of the Russian Federation dated 8 June 2017. the Summary is undated but it appears to have been translated on 8 July 2016. The Summary states, "Shuppe G.N., together with Nekrich M. Yu., acting for mercenary motives, for the purpose of illegal enrichment, in early March 2013, created a stable organised criminal group for the purpose of illegal acquisition of the right to real property valued at 9,305,542,982 roubles which property was owned by 18 Russian legal entities the beneficiary thereof was Vankov K.A. The property at issue was actually managed by A.A. Mineev. In pursuance of the criminal intent, Shuppe G.N. together with Nekrich M.Yu. selected other accomplices of the crime. Further, on the basis of the illegal decisions of the nominal director Egorova Yu. O., the foreign companies controlled by Shuppe G.N., by means of fabricating false documents and state registration thereof in their names with the tax authorities were accepted as founder members of all 18 Russian legal entities….At the same time, the criminal group created Russian limited liability companies…..whose beneficiary was Shuppe G.N., in whose favour the disposition of property was effected. Shuppe G.N., together with Nekrich, M.Yu, in connection with the actions of A.A.Mineev aimed at restoring control over the above-mentioned 18 companies and their property, instructed S. Bagaudinov to organise the murder of Mineev A.A…..The role of Shuppe G.N., in the commission of these crimes consisted in the creation, together with Nekrich, M.Yu., of an organised criminal group and in the commission of fraud together with other accomplices, at the same time acting as beneficiaries of legal entities in whose favour the property derived from crime was re-registered. Moreover, Shuppe with Nekrich instructed a member of a criminal group to commit the murder of A.L. Miveev. "

Significantly the Summary states, "During the investigation of the criminal case, no evidence was received from the anonymous witness." If the prosecution does not rely on the evidence of the witness Shmagin it is difficult to see from whom the necessary evidence was obtained. The investigative summary makes no mention of either documentary evidence or forensic evidence.

In a second witness statement Vladimir Krasnov, the RP's Moscow based criminal lawyer, refers to two additional expert handwriting reports he found out about from the prosecution earlier this year. He states that those reports, (paragraph 29) "do not prove the authenticity of Mr Shuppe's signature and therefore do not support the investigating authorities' assertions that Mr Shuppe was the beneficiary of the relevant companies."

Further, it is significant that the "beneficial owner" of the affected Russian companies and properties was said in a Moscow court ruling to be Mr Mineyev but in the Investigative Summary "the beneficiary" is now said to be a Mr Vankov.

On the face of it, the Investigative Summary appears to make bold and sweeping assertions of criminality against the RP which the witness statements do not support. I can see no likelihood that the prosecuting authorities in this country would even consider proceeding with a prosecution on charges of fraud and murder simply on the basis of the account of an anonymous witness who in turn reports what he was told by a third party who may or may not have been present when the conversation between two other individuals not including the defendant took place. Even at its highest the overheard or reported conversation does not in any way suggest that the RP was involved in any criminal behaviour.

The Conduct of the Russian Criminal Proceedings

Prior to making his supplemental statement, Mr Krasnov made a detailed statement in Russian (then translated into English) in which he sets out the history of the criminal proceedings and the procedural setbacks he has encountered. He states (page 1), "The absence of evidence and the unfair way in which Mr Shuppe has been treated by the Russian authorities is, in my opinion, a direct consequence of Mr Shuppe's known association with Mr Berezovsky. Put simply, I can think of no other explanation for this unprecedented case where there is such regularity and frequency of obstructive actions by the investigator and perverse illegal rulings by the prosecutor and the courts."

It was originally the prosecutor's case that the suggestion made to Mr Nekrich to unlawfully acquire title to the real estate owned by Mr Mineyev and for him to be murdered came from a Mr Kurylenko. Although a defendant at the commencement of the proceedings the case against Mr Kurylenko has subsequently been dropped for no discernible reason. Mr Krasnov sets out in more detail (page 5 paras 6(d) to 6(s)) the nature of the RP's alleged illegal actions.

He states, "I have never before experienced such serious charges being brought on the basis of such weak evidence. Notwithstanding the inherent unreliability of the secret hearsay evidence given by Shmagin, the mere fact of an ostensible involvement as a business partner of Nekrich is far removed from any reliable evidence that GS had any personal knowledge of any alleged criminal activity. No evidence was adduced as to GS' state of mind, eg any communications he had with any other person, or any act undertaken by GS."

Mr Krasnov's statement demonstrates that he has represented Mr Shuppe with diligence and perseverance. Such written responses to his various applications issued by the prosecutor or investigator that he refers to appear to have been both weak and formulaic.

He concludes,

"82. I have outlined above the history of the investigation in this matter, which is in my experience exceptional. Whilst I have, of course, frequently encountered unlawful decisions by investigating authorities in other cases, it is the consistency and regularity of the unlawful decisions made in this case which render it exceptional in my experience. At the commencement of the investigation, a decision to charge GS with fraud was made without any proper evidential basis. Whilst this is perhaps not so unusual in the RF, in my experience it is exceptional then to include a charge as serious as murder without any evidential foundation. Further, whilst it is not unusual for the courts to support applications for pre-trial detention where the allegation is murder, the courts' and prosecutors' continued unwavering support of the investigator's unlawful actions in this case is again exceptional. I have never previously encountered a situation where so many applications and complaints I have made on behalf of a client have been rejected out of hand and without proper motivation at all levels of the criminal justice system.

83. In the light of the above, I must inevitably conclude that the investigation and prosecution against GS is motivated by his connection to Boris Berezovsky, and also that GS will never receive a fair trial in Russia. There is no other basis upon which it is possible to explain the history of the obstructive and malicious behaviour of the investigator (refusing to disclose appealable decisions, refusing to agree exculpatory documents being included on the case file, refusing to clarify the charges against GS) and the prosecutors' and courts' support of that behaviour. The cumulative effect of these decisions made by the investigators, prosecutors and courts are so extraordinary that I can form no other conclusion."

Mr Krasnov was an impressive witness. He appeared at times frustrated by the fact that his evidence had to be translated into English and he was clearly striving to give answers to questions as accurately as possible.

He said that the Investigative Summary was the first document which referred to Mr Vankov as opposed to Mr Mineyev as the owner of the properties which were the subject of the fraud. Mr Krasnov said that, as a witness of fact, he did not want to speculate on the identity of the witness Shmagin. Mr Kurylenko is said to be an ex-general of the RF but that is information he cannot confirm or deny.

In cross examination he said that the reference to Mr Vankov is a new development in the case. He considered that he has still not received full disclosure of the prosecution case. He was asked about the suggestion in the papers that the RP had absconded. He said that Russian legislation does not stipulate the meaning of absconding. However the Russian Supreme Court has confirmed that if an individual leaves the country in accordance with his right to freedom of movement he has the right to do so.

Mr Krasnov confirmed that the RP has resided in the United Kingdom for fifteen years and that he left the RF at least thirteen years prior to the criminal case being initiated.

In re-examination he confirmed that Mr Shuppe made attempts to contact the investigator by way of letter dated 13 January 2015 prior to the investigator's decision to seek an order for preventive detention.

Professor Bowring

The Professor is well known to this court and has given evidence in a number of extradition cases not limited to those involving the RF. He submitted a lengthy report with a number of attachments.

In his report he comments on the issue of judges bowing to pressure in sensitive cases as follows, (paragraph 95), "….there is a significant risk of a biased decision whenever the interests of the state or powerful individuals associated with the regime are engaged. The more the issue concerned is close to the central and most sensitive interests of the state or such individuals , the more likely it is that the judges will do the "right thing". In most cases there is no need for a telephone call; a compliant judge will be selected by the Court Chairman who has total power to decide who takes a case. A judge who fails to be compliant will suffer in many ways: no prospect of promotion; loss of benefits including housing; and in the worst case dismissal, carrying with it the loss of pension, benefits and judicial immunity."

The rate of acquittals in non-jury trials is said to be 1% whereas the rate of acquittals in jury trials is approximately 15-20%. Acquittals are reversed on appeal thirty times more often than convictions.

As to the murder of Mr Mineyev, he comments (para 185), "…the whole conduct of the investigation into the murder of Mr Mineev is characterised by confusion and mystery. A large number of persons have been named in the press reports who might have had a motive for murdering Mr Mineev, including his estranged wife, persons from the Caucasus, and his former managers. I note speculation encouraged by the investigators, as to the involvement of organised crime, former intelligence officers, and also reports of corruption concerning the main investigator himself."

On the issue of the prospects of a fair trial and extraneous considerations he states,(paragraph 190 first report) "In my opinion, there are all the reasons of which I have given details above, in particular the uncontroverted fact that BB was in the eyes of the Kremlin the most dangerous enemy of the Russian regime, and that GS was not only his son-in-law but also a close associate, to conclude that that there is a real, substantial risk that the prosecution of GS is indeed politically motivated, that is, that there are extraneous considerations motivating his prosecution. It is also my opinion that in the circumstances which I have described and analysed above, in particular, that the judiciary have remained systematically and endemically corrupted in financial and political terms, and highly susceptible to influence and co-option, there is a real substantial risk that GS will not receive a fair trial in Russia."

He said that he believed the connection between the RP and his father-in-law is significant. He said, "The Russian states does not forgive. They pursue relentlessly…..a number one priority was to get extradition of everyone connected with Mr Khodorkovsky and Mr Berezovsky…It is a kind of revenge. He considered it significant that, apart from his other ties to Mr Berezovsky, the RP broke the news of his death and gave information to the media. He said, " Mr Shuppe is at the centre of a cloud of speculation. Those behind it believe he is guilty of something very serious connected to Mr Berezovsky.

There was an issue regarding the RP's entitlement to a jury trial which was put to Professor Bowring which led to Mr Krasnov being recalled. Mr Krasnov stated that in his thirty years of experience it has never happened that a person has applied for a jury trial and been refused. In response to my question he said that the trial judge will ultimately decide whether there will be trial by jury. He said that, despite the written assurance that the RP is entitled to a jury trial, he has "reasonable suspicion that in this case the law will be violated in respect of Mr Shuppe."

Dr Gladyshev

This witness is also a very experienced Moscow based Russian lawyer. There is no dispute that he is an expert. He has produced a lengthy and well-researched statement in which he examines the case against the RP in some detail. He concludes that, "a fair trial for Mr Shuppe in Russia is a virtual impossibility."

With respect to the falling out between Boris Berezovsky and Vladimir Putin he suggests that the main reasons were a difference of opinion about the Chechen war, the radical centralisation of the power of the Kremlin over the Russian regions and a growing hostility between the two men culminating in a programme broadcast by a principal Russian TV channel controlled by Mr Berezovsky showing Mr Putin in a negative light during the atomic submarine Kursk disaster.

In evidence he said Mr Berezovsky retains emblematic importance. His demonization serves certain psychological needs within the (current) regime. He doubted whether any investigator or judge "would dare to acquit him.". As a practising lawyer he considered that the trial is "as good as over."

Report of S C Strategy Limited

There was a dispute about the admissibility of the report of SC Strategy Limited dated 29 November 2016. The proprietors of the company are all distinguished individuals.

Lord Carlile was due to give evidence during the substantive hearing. I was told that he was not available to give evidence that week and, although I received written submissions about the admissibility of the report from Mr Caldwell and Mr Evans, I heard no oral submissions and I was not pressed by Mr Keith to adjourn the hearing to accommodate Lord Carlile on a later date.

The report contains a summary of historical observations which I suspect are not contentious but there are also a number of observations which form the basis of the conclusion of the report which I am told are contentious. The report makes clear that the significant sources on which the report's conclusions are founded are a Dr Jonathan Eyal, a "respected and internationally renowned expert on the Russian Federation" as well as a number of anonymous sources.

Without hearing any evidence from Lord Carlile or Dr Eyal and without any further information about the anonymous sources I concluded that it was appropriate to admit the report but to pay no weight either to the observations in the report or to the conclusions.

Article 3: Russian Prison Conditions

There is considerable and undertandable disquiet about Russian prison conditions.

Evidence of Professor Morgan

On 24 April 2017 the Professor, instructed on behalf of the RF, visited Federal SIZO-1 in Moscow on a joint inspection with Dr Alan Mitchell who was instructed on behalf of the RF. Later on 25 and 27 April they visited three penal colonies in the Republic of Mordovia and the Vologda Region.

Post conviction it is said that Mr Shuppe would be detained in either Colony 5 in the Vologda Region or Colony 17 in the Republic of Mordovia dependent on which offences he was convicted of. Colony 5 is for life sentence prisoners whereas Colony 17 is for long term prisoners serving determinate sentences of five or more years.

Post-conviction Mr Walsh would be detained in Colony 22 in the Republic of Mordovia. He wrote,

"11.1 I can see no Article 3 objection to either Mr Walsh or Mr Shuppe being extradited and held pre-trial at Federal SIZO NO 1 in Moscow. The prison is not overcrowded nor in recent years has it been. The prison meets the ECtHR space standard dictated in the Ananyev judgment….I am satisfied that in none of these regards (lack of positive activities, small cells and restricted exercise facilities) would the CPT find the conditions sufficiently restrictive or impoverished as to describe them as inhuman and degrading nor, if petitioned would the ECtHR find them to be so.

11.2 Regarding Colonies 17 and 22 in the Republic of Mordovia I conclude that the regime and conditions for mainstream prisoners would, were the CPT to inspect them, attract several major criticisms. The dormitories, most of them providing 2m (squared) per prisoner, are extremely cramped, provide little privacy and are open to the objection that they facilitate inter-prisoner exploitation and are difficult to supervise….I do not think the ECtHR would find these conditions to breach Article 3.

11.3 However, should a prisoner fall foul of the disciplinary system in operation at either Colony 17 or 22 and find themselves consigned to the punishment blocks for either up to 15 days or six months, they would experience custodial conditions not in conformity with the standards required by the ECtHR in the Ananyev pilot judgment….It is of course impossible to say whether Mr Walsh and Mr Shuppe would likely experience life in punishment blocks at Colony 22 or 17 respectively.

11.4 Regarding Mr Shuppe and his possible allocation to the Lifer Colony in the Vologda Region we can be more precise. Should he be convicted and given a life sentence and allocated to the Lifer Colony in the Vologda Region he would very likely be held in a cell smaller than the CPT considers acceptable or he ECtHR requires in the Ananyev pilot judgment. He might have the opportunity of employment, but it is more likely that, like the majority of prisoners at the Lifer Colony, he would not. In which case he would be confined, perhaps for the rest of his life, to a spartan cell for 23 hours a day and be subject to disciplinary and security requirements totally unrelated to any individual risk assessment by the mere fact of his lifer status. I have no hesitation in asserting that these conditions would be judged unacceptable by the CPT and very likely in breach of Article 3 by the ECtHR."

In oral evidence the witness said that the amount of space guaranteed in the assurance concerning Federal SIZO-1 is achievable. Similarly he considered the amount of space guaranteed in respect of Colony 17 was also achievable.

However in respect of Colony 5, he considered that a guarantee of three square metres is not achievable. Colony 5 is a monastery and is a "work in progress". Some of the rooms are very small. If the Russians give an undertaking that a person, if extradited, can be guaranteed occupancy of a cell for his sole occupancy that amount of space could be guaranteed. Some of the prisoners are in quite spacious cells which could be for a variety of reasons.

The data previously provided to the Professor and Dr Mitchell suggested a two shift working system which would have meant that the living occupation should have been occupied when they inspected Colonies 17 and 22 but the living occupation was near deserted. That suggested to him that the figures provided were out of date. The prison population of Russia has been reduced by forty per cent within the last ten years; from over a million prisoners in 2010 to about 620,000 today.

In cross examination he said that the CPT considers that even remand prisoners should be out of their cells for seven or eight hours a day. Lifers should not be detained in a cell with more than two other prisoners which is clearly breached in Colony 5. The CPT has had to return to Russia with some regularity which is indicative of continuing CPT concerns. Since Ananyev there have been about 150 judgments against the RF in respect of pre-trial and post conviction conditions.

The CPT takes the view that large scale dormitories are undesirable as they afford little privacy and they increase the likelihood of inter prisoner intimidation and violence. In the RF most colonies house prisoners in large scale dormitories.

The RF has only published three out of 26 CPT reports. The Professor confirmed that the CPT did not use the words inhuman and degrading in the published reports but considers it almost certain that those words were used in the unpublished reports. If a state is making progress the CPT is disinclined to use the words inhuman and degrading.

The witness was asked whether the space requirement in Colony 17 could be achieved by clearing an adjacent bunk but he replied that a prisoner who was told the extra space by his bunk bed was for his exclusive use would not be treated kindly. There were some cells in Building 4 which are between three and four square metres.

There is an implicit view in Russia that life prisoners should experience extremely punitive conditions. There is an expectation that life prisoners will never be released. Conditions are both punitive and indefinite. The regime at Colony 5 was one of the most oppressive regimes he had ever witnessed. It was hard to see any mitigating features.

Evidence of Dr Mitchell

In his report dated 22 September Dr Mitchell states, "12.10 …..given the above I can only conclude that there are strong grounds for believing that if Mr Shuppe were to be extradited to Russia and imprisoned that he would face a real risk of being subjected to inhuman and degrading treatment or punishment in breach of

Article 3 of the European Convention on Human Rights

With regard to Colony 17 the witness said that there was an absence of clarity about the assurance provided in the event that Mr Shuppe was sentenced to less than five years imprisonment. He was clear that the punishment cells in Colony 17 are not Article 3 compliant.

Colony 5 is the most isolated and oppressive prison he has every visited. It maintains a system of "unremitting oppression." The nearest doctor is 230 kilometres away. A doctor had visited twice in the last year. No prisoner had been referred to the local accident and emergency department in the previous twenty years.

When he visited Colony 5 and spoke to prisoners some of them started to cry during their discussion. The prison is physically isolated, there is a lack of opportunity for visits and no family contact for the first two years of a sentence. Telephone calls are not permitted as a matter of routine. Members of the Public Monitoring Committee are only able to enter into a dialogue with prisoners if videotaped and the Governor could not recall any visits from the press.

Dr Mitchell confirmed in response to my question that in his view he and Professor Morgan are in accord and they had no substantial disagreement.

The Case of Dzgoev

In an appeal against my decision the Divisional Court in Dzgoev v Prosecutor General's Office of the Russian Federation

[2017] EWHC 735 (Admin)

directed the Crown Prosecution Service to seek further written assurances from the RF concerning the conditions of pre-trial detention. A suggested draft of the assurances sought by the court was annexed to the judgment.

Written assurances were duly provided by the RF and on 6 July 2017 a postscript to the judgment was handed down in which the court confirmed that the further assurances provided were in an acceptable form and further confirmed the dismissal of Mr Dzgoev's appeal.

The last paragraphs of the postscript to the Dzgoev appeal judgment read,

"4. We take into account of the fact, as noted in our judgment, that there was no complaint of ill-treatment by the appellant when he was last in detention in Russia. We remind ourselves that these additional assurances are being provided by the appropriate authorities of the Russian Federation, and that the Russian Federation is a member of the Council of Europe and a high contracting party to the European Convention on Human Rights. We note, in particular, that these assurances are provided to this court to address particular concerns we articulated related to this individual appellant. The Russian Federation plainly has a strong interest in honouring these assurances.

5. In those circumstances, we are content to rely on those assurances. Accordingly this appeal is dismissed."

In this case the RF has provided a written assurance dated 4 July 2017 which reads, "In case Mr GN Shuppe is extradited to the territory of the Russian Federation in order to be brought to criminal liability, for the period of a pre-trial investigation he will be held in the Federal Public Institution Pre-Trial Detention Center No. 1 of the Russian Federal Penitentiary Service (FKU SIZO-1 FSIN of Russia), and in case a judgment of conviction is delivered by a court of law he will be referred to the Federal Public Institution Penal Colony No. 17 of the Department of the Russian Federal Penitentiary Service for the Republic of Mordovia (FKU 1K-17 UFSIN of Russian for the Republic of Mordovia) or to the Federal Public Institution Penal Colony No. 5 of the Department of the Russian Federal Penitentiary Service for the Vologda Region (Vologodskaya Oblast)(FKU IK-5 UFSIN of Russia for the Vologda Region (Vologodskaya Oblast)) a decision pertaining to referring to Penal Colony No. 17 or Penal Colony No. 5 will be based on a judgment of conviction and connected with the penalty for his alleged crimes)."

The assurance guarantees a minimum of four square metres of living space in Federal SIZO-1 and a minimum of three square metres of living space in both Penal Colony 17 (Republic of Mordovia) and Penal Colony

5 (Vologda Region).

The written assurance gives further guarantees in respect of living standards, visiting, food, medical treatment and access to legal and Embassy support.

Despite the fact that the written assurances in Dzgoev and this case relate to different prisons in completely different regions of Russia, and despite the deeply troubling evidence I heard especially about the two penal colonies, I consider that I am bound by the decision in Dzgoev. I say that taking into account all the medical evidence submitted on behalf of Mr Shuppe which I have considered; that is the evidence of Dr Pfeffer, Dr McPhillips, Professor Katona and Ms Abolina. The medical evidence has been submitted in support of the Article 3 argument and not in support of a standalone section 91 bar.

Having heard the evidence of Professor Morgan and Dr Mitchell I have concerns about the assurance provided in respect of Colony 5 in the Vologda Region.

However, for the reason above, I accept the written assurance provided on behalf of the Prosecutor General's Office of the Russian Federation and I reject the Article 3 challenge.

Extraneous Considerations

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.

There is no evidence about Mr Shuppe's political opinions and no evidence that he has ever been active in Russian politics since leaving the RF in 2001. Although there is evidence that the push for his extradition to the RF is driven from the highest levels of the Russian regime because of its continuing preoccupation with Mr Berezovsky and the close link between the two men.

I am urged to find that, because of the political interest in the RP, section 81 comes into play. I have restricted myself to the words of the statute. I have concluded that the request for extradition is not based on the RP's political opinions and that his political opinions are not likely to be a factor in the trial or this application. If extradited and convicted he will not be punished for his political opinions and the request for extradition is not based on his political opinions.

I reject the section 81 argument.

Article 6

I am being invited to say that Mr Shuppe, if extradited to the RF, will be exposed to a real risk of being subjected to a flagrant denial of justice. The court requires cogent proof before it can be satisfied that this test is made out.

The evidence that has been called from the expert witnesses has demonstrated to my satisfaction that this case is of enormous interest in the RF and that, in cases of significant interest, there will be considerable pressure on the judge to convict. If Mr Shuppe is afforded a jury trial and is acquitted of the two charges he faces, the prospect of his acquittal being overturned on appeal is very high.

I accept the evidence that, in the event that a non-jury trial takes place, either a judge will be carefully chosen to hear the case or the allocated judge will be subject to "telephone justice". The conviction of the RP would represent a significant success for the current regime.

I am satisfied that a combination of factors give rise to concern; the legislative slant in favour of the prosecution, the placing of the burden of proof on the defence, the control of the investigator over the case file, the pursuance of the criminal proceedings against this RP despite an exceptionally weak evidential case, a junior judiciary that is susceptible to pressure and political interest in the trial and outcome.

Abuse of Process

In the light of my findings about Article 6 I have not considered the abuse of process argument advanced on behalf of Mr Shuppe.

Conclusion

I am satisfied that this case would be decided by influence and pressure on the judge to convict (whether in a judge alone trial at first instance or on appeal in the event of a acquittal by a jury) whatever the strength or weakness of the prosecution case. I am further satisfied that Mr Shuppe " will be subject to a flagrantly unfair trial process which will, by virtue of his association with Boris Berezovsky, result in a predetermined outcome" (paragraph 1.1 Defence Closing Submissions). In those circumstances I have concluded that the high threshold to establish a breach of Article 6 has been met.

Accordingly I discharge Mr Shuppe.

4 August 2017