Stanislav Dzgoev v Prosecutor General's Office of the Russian Federation

Hearing date: 24 th February 2017

Approved Judgment

Introduction

This is the judgment of the Court, to which Garnham J has made a very substantial contribution.

Mr Stanislav Dzgoev appeals, pursuant to section 103 of the Extradition Act 2003 and with the permission of Dingemans J, against the decision of District Judge Grant, dated 16 May 2016, ordering that his case be sent to the Secretary of State, whereupon, on 11 July 2016, the Secretary of State ordered Mr Dzgoev's extradition to Russia. The Russian authorities seek Mr Dzgoev's return to serve a sentence of three and half years' imprisonment for two offences of street robbery, and to stand trial for a third similar offence.

The appeal advanced before us, like the opposition to extradition advanced before the District Judge, was based on a single ground. Mr Dzgoev asserts that his extradition to Russia would be incompatible with the United Kingdom's obligations under art 3 of the European Convention on Human Rights ("the ECHR"). A number of particular criticisms are made of the District Judge's judgment and we consider those below. However, as is common ground between the parties, the ultimate question for us is whether the District Judge was wrong to reach the conclusion he did that extradition to Russia would be consistent with the UK's obligations under art 3.

During the course of the hearing before us, the Appellant sought permission to advance a second ground of appeal, namely that, contrary to s91 of the 2003 Act, it would be unjust or oppressive to extradite him because of his physical or mental condition.

The History

The Appellant's date of birth is 14 December 1987; he is now 29. As he makes clear in the proof of evidence admitted in evidence by the District Judge, he holds dual Russian and British nationality. He suffers from HIV and hepatitis C. He has previously been remanded in custody in Irkutsk in Russia.

Mr Dzgoev was sentenced by the Oktyabrsky District Court to three years and six months imprisonment for two offences of robbery. The Russian court had found that on 9 October 2012, in Deputatskaya Street in the city of Irkutsk, Mr Dzgoev snatched a gold necklace worth 10,700 roubles from the complainant. Further, on 27 October 2012, Mr Dzgoev entered a shop at 131 Krasnokazachya Street in Irkutsk, and snatched a gold necklace with a value of 5,000 roubles from a salesperson. The further offence of which he is accused is said to have occurred on 14 July 2013 when it is alleged that he stole a mobile phone with a value of 4,000 roubles.

On 30 December 2014, the Russian Federation issued a request for the Appellant's extradition. On 10 August 2015, he was arrested pursuant to the request. He was produced at Westminster Magistrates' Court and the extradition hearing was fixed for 18 February 2016.

The request is governed by Part 2 of the Extradition Act 2003 which applies to territories designated for that purpose by order of the Secretary of State. The Russian Federation is designated for the purposes of Part 2 by paragraph 2 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (S.I. No. 3334). Pursuant to paragraph 3 of the same order, the Russian Federation is also designated for the purposes of section 71(4), 73(5), 84(7), 86(7) of the 2003 Act and, as a result, Russia is not required to include evidence of a prima facie case against the requested person as part of this request.

On 2 March 2015, the Secretary of State issued a certificate in accordance with section 70(1) of the 2003 Act, certifying that the request was valid and had been made in the approved manner. When the case came on before him on 18 February 2016, the District Judge confirmed, as was accepted to be the case, that the court had been provided with all necessary particulars and documents as required by section 78 of the Act. He also confirmed, pursuant to section 78(4), that Mr Dzgoev was the person whose extradition was requested, that the offences specified in the request were extradition offences and that the requested person had been served with the required documents. He adjourned the hearing at the end of the first day to enable further evidence to be served in response to medical evidence served on behalf of the Appellant. The District Judge gave his judgment on 16 May 2016 after the completion of the resumed hearing.

The Secretary of State's decision to order the Appellant's extradition to Russia followed. Very properly, the Appellant has accepted that there can be no challenge to that decision given the District Judge's order. It follows that the only issue for this Court turns on art 3.

The Request and the Further Information

The extradition request provides an assurance that the Appellant:

" will not be subject to torture, cruel, inhuman or degrading treatment or punishment…Dzgoev will be detained in a penitentiary facility which meets standards stipulated by the ECHR and European Penitentiary Rules of 11.01.2006 and consular officers of the UK Embassy in Russia will be able to visit him at any time including with a view to check compliance with the guarantees set forth in this request"

In addition to the request, the Russian authorities have provided further information and assurances in four letters addressed to the CPS.

First, in a letter dated 18 December 2015, the office of the Russian Prosecutor General asserted that, if Mr Dzgoev was extradited to Russia, " he will be placed at Federal Government Institution "Pretrial Detention Centre No 1 of the Department of the Federal Penitentiary Service of Russia in the Irkutzk Region" ( SKU SIZO-1 UFSIN Russia in the Irkutzk region)". The letter goes on to confirm that conditions for prisoners in that SIZO " comply with the requirements for the Russian penal enforcement legislation". It is asserted, in addition, that the maximum number of inmates at that prison is 1438; that, at the time the letter was written, 1054 persons were held there; that there were 273 cells at the prison with a total floor area of 6,526.6 square metres; and that the floor area of small size cells, used for one or two prisoners, is about nine square metres.

That letter explains that, after his trial, Mr Dzgoev will be sent from SIZO-1 to one of the correctional institutions in the Irkutzk region: "On the territory of the Irkutzk region there are 6 strict regimes correctional institutions, conditions of which comply with standards stipulated in Art 3…" The letter said that the Russian Prosecutor General's Office would " provide the supervision over observance" of Mr Dzgoev's rights "and compliance of detention conditions with the norms of international law and Russian legislation". It was said that he would not be "subjected to torture, cruel, inhuman or degrading punishment".

In the second letter, dated 29 December 2015, it was asserted that Russia "keeps executing the action plan on execution of the requirements of the pilot judgment of the European Court of Human Rights in the case of Ananyev amd others vs Russia". That is a case to which we return below. It was said that "Issues of the state of lawfulness at the penitentiary bodies are under the permanent control of the prosecution bodies of the Russian Federation…"

The third letter, dated 16 March 2016, was submitted in response to expert evidence served on the Appellant's behalf. It repeated much of the substance of the previous two letters, including the assertion that, were Mr Dzgoev to be extradited to Russia, he would be held in SIZO-1 in the Irkutsk region. It was said that at the time of writing that letter 1064 prisoners were held at that institution, ten more than the total recorded in the letter of 18 December 2015, compared with a maximum of 1438. It was said that the average space available for each prisoner was 6.1 square meters. The letter asserted that the hospital at SIZO-1 possesses and provides HIV and Hepatitis medication, including the drugs currently provided to the Appellant.

The Prosecutor General's letter said it was noteworthy that:

" other European states make positive decisions on extradition of persons to the Russian Federation for bring criminal charges or enforcing offences. In some cases, foreign states requests guarantee to ensure that the extradited person be allowed visits by consular officers. Such guarantees have been requested by the Federation Republic of Germany, Kingdom of Spain, the Czech Republic and other states. Over the last six years the consular officials from the Federal Republic of Germany have consistently visited the persons extradited from Germany. No complaints have been received from them with regard to the conditions of detention of the extradited persons…..In 2015 only the European countries extradited to Russia 29 persons for bringing them to criminal responsibility with a view to enforcing a sentence."

By letter 7 February 2017, the Prosecutor General's Office provided more information about the institutions in which Mr Dzgoev would be held. It was said that, in accordance with Russian law, a Public Monitoring Commission ("PMC") had been created and was operating in the Irkutsk region. It was said that the members of that commission had " actively used powers granted to them to control ensuring of human rights at the pre-trial detention facilities...