Ion Sekrieru v The Government of Azerbaijan

Hearing date: 03/02/2021

Approved Judgment

References to documents in the bundle are given in the format [Tab], [Tab/Page in bundle], or [Tab/Page in bundle/Paragraph].

Mr Ion Sekrieru (“the appellant”) is a citizen of Moldova. He appeals with limited leave granted by Holman J against the decision of District Judge Baraitser of 16 March 2020 to grant a request to extradite him to Azerbaijan. The Secretary of State ordered extradition on 12 May 2020.

The Government of Azerbaijan (“the respondent”) requests the extradition of the Appellant to stand trial for the crimes of theft and “ illegal interference in a computer system or computer information”. The offences carry maximum sentences of 12 years and six years respectively.

Azerbaijan has been designated as a Category 2 territory for the purposes of the Extradition Act 2003 (the “Act”). Accordingly, the applicable provisions are set out in Part 2 of the Act. Azerbaijan is a state party to the European Convention on Human Rights, (“ECHR”). It is therefore subject to the obligations imposed by the ECHR.

The appellant appeals under sections 103, 104 and 108 of the Act on the grounds that his extradition would unnecessarily interfere with his rights under article 3 and article 6 of the ECHR. The appellant also seeks to rely on fresh evidence which he says was not available in the court below. Leave to appeal was refused on grounds that extradition would necessarily interfere with his article 5 and 8 rights. He does not renew his application for leave on either of those two grounds.

History of Proceedings

The appellant faces charges in Azerbaijan with five others, (one a Ukrainian citizen and four other Moldovan citizens) They are accused of theft contrary to Article 177 of the Republic of Azerbaijan Criminal Code and illegal interference in a computer system or computer information contrary to Article 273 of that Code. He is said to have been an organiser within the group; providing mobile telephones and giving instructions to others to visit particular automatic teller machines, the system would be interfered with at a point in time and cash would be dispensed. One of the co-accused, Mr Dorin, has already been extradited to Azerbaijan, where he was convicted, sentenced and has been returned to Moldova to serve the remaining part of his sentence of imprisonment. He has provided a statement, said to amount to fresh evidence.

It is alleged that, in July 2016, the accused stole money to the value of 1,464,500 manats (some £630,000) from 26 Unibank Commercial Bank OSS cash machines located in the Azerbaijani cities of Baku, Khirdalan and Sumgayit. The appellant is said to have left Azerbaijan after the offences were committed.

Following a criminal investigation in Azerbaijan that began on 30 July 2016, the appellant was charged on 31 July 2017 and an arrest warrant was issued in respect of him. On 1 August 2017, the Sabail District Court of Baku ordered that the appellant be held in custody for four months following his arrest.

The Judicial Authority in Azerbaijan issued an extradition request which was certified by the Secretary of State on 10 May 2018. He was arrested in the United Kingdom under a domestic warrant on 6 November 2018. The hearing took place on 5 September 2019 and 20 January 2020.

Legal framework

Test on Appeal

Section 104 of the Act defines the court's powers on appeal under section 103,

(1) On an appeal under section 103 the High Court may—

(a) allow the appeal;

(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;

(c) dismiss the appeal.

(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 he 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 he had decided the question in that way, he would have been required to order the person's discharge.

Article 3

Article 3ECHR provides:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

In R (Ullah) v Special Adjudicator[2004] UKHL 26; [2004] 2 AC 323, Lord Bingham said at [24]:

In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of beingsubjected to torture or to inhuman or degrading treatment or punishment…………..

Prison conditions

In Muršic v Croatia (2017) 65 EHRR 1, the Grand Chamber discussed the principles relevant to Article 3 challenges to prison conditions at [96]–[141]. It held as follows:

96.Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour ………………

99. ………The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured……

115. The Court would also observe that no distinction can be discerned in its caselaw with regard to the application of the minimum standard of 3 sq. m of floor surface to a detainee in multi-occupancy accommodation in the context of serving and remand prisoners…………….

In 2013 a Divisional Court heard the only reported case involving the requesting state, Ragul and another v Azerbaijan[2013] EWHC 2000 (Admin), Moses LJ and Burnett J, as he then was, considered an article 3 challenge to an extradition request by the respondent in this case. Dealing with prison conditions in Azerbaijan, the Court held at [35] and [36]:

35. It is clear from the totality of the evidence that was before the District Judge and the additional evidence before us that the prison conditions inherited by the Republic of Azerbaijan from the Soviet Union were of poor quality and that the medical facilities provided to prisoners were sub-standard. The general position has substantially improved since Azerbaijan became a state party to the Convention and continues to improve. The District Judge concluded that the appellants would be located in the detention facility in Baku which was described as conforming to all international standards. I infer that this is the facility which Professor Bowring visited in 2006. If that conclusion was correct, and there is no basis to suppose that it was not right, then there is no reason whatsoever to suppose that the appellants would be subjected to poor prison conditions at all whilst on remand. Even allowing for the possibility that the appellants may find themselves detained in another facility, the evidence establishes no more than that within the Azerbaijani prison estate there is a diminishing number of establishments where the conditions of detention are ‘harsh’. I havealready recorded that there is no feature of the appellants' case, or any personal characteristic of the appellants, which suggests that they are vulnerable to particular ill-treatment. Professor Bowring's conclusion that appropriate medical treatment would be provided to TN, particularly because of the potential oversight of the British Embassy, holds good for KR also. It accords with the obligations recognised by the Government of Azerbaijan and referred to in their response to the CPT report. The prison system is the subject of increasing oversight within Azerbaijan, by human rights organisations (domestic and international) and the Council of Europe. There has been a more recent visit by the CPT but its report and the Government's response have not yet been published. The picture that emerges from the material is that the accession to the Convention has had a positive impact on prison conditions in Azerbaijan with, in particular, considerable improvements being made in the last five years. It is also of note that none of the features identified by the Strasbourg Court in para 130 of its judgment in Harkins and Edwards (see para 17 above) is present. In my judgment, there is no clear and cogent evidence that the Azerbaijani authorities would not honour their obligations under article 3 of the Convention.

36. The submission is that nobody can be extradited to Azerbaijan because of the state of its detention facilities. In my judgment, the material relied upon in support does not establish strong grounds for believing that extraditees, including these appellants, would face a real risk of being subjected to inhuman or degrading treatment on account of the general conditions of detention or the medical facilities attached to them.

Assurances

In Othman v United Kingdom (2012) 55 EHRR 1, the Strasbourg Court held, in...