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||Neutral Citation Number:  EWHC 2705 (Admin)
||Case No: CO/2279/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HICKINBOTTOM
MR JUSTICE GREEN
|| ARBI ALIKOVICH ZARMAEV
||- and -
THE GOVERNMENT OF
THE RUSSIAN FEDERATION
Malcolm Hawkes (instructed by Bindmans LLP) for the Appellant
Peter Caldwell (instructed by Crown Prosecution Service Extradition Unit) for the Respondent
Hearing date: 18 October 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Hickinbottom :
- This is an appeal under section 103 of the Extradition Act 2003 ("the 2003 Act") against the decision of the former Chief Magistrate, Senior District Judge Howard Riddle, of 25 February 2016 to send the case to the Secretary of State for her decision on whether the Appellant should be extradited to the Russian Federation, where he is accused of two offences namely (i) the illegal acquisition etc of a firearm and ammunition, contrary to article 222 of the Russian Criminal Code, which carries a maximum sentence of 3 years' imprisonment; and (ii) the organisation, incitement and aiding of premeditated murder, contrary to articles 33 and 105(1) of the Code, which carries a maximum sentence of 15 years' imprisonment. On the basis of the judge's decision, the Secretary of State ordered the Appellant's extradition on 17 April 2016.
- The Russian Federation is a category 2 territory, and thus Part 2 of the Extradition Act 2003 applies. However, both Russia and the United Kingdom are parties to and bound by the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 ("the ECHR"), and the European Convention on Extradition signed in Paris on 13 December 1957 ("the Extradition Convention").
- Before us, Malcolm Hawkes of Counsel appeared for the Appellant, and Peter Caldwell of Counsel for the Respondent Requesting State. We thank each for his contribution.
- The Appellant comes from Gvardeyskoe, in the district of Nadteretchny, Chechnya. The Chechen Republic forms part of the Russian Federation.
- The factual basis of the application for extradition is as follows. It is said that, in April 2001, an acquaintance of the Appellant, Zaira Dukaeva, told him that a man called Khizir Vakhayevich Labzanov had raped her several times which, absent marriage, dishonoured her. Labzanov refused to marry her. The Appellant persuaded Ms Dukaeva to avenge her loss of honour and murder Labzanov, telling her that, as she was defending her dignity, she would not be punished for the murder; and he (the Appellant) would marry her. The Appellant acquired a firearm and ammunition, which he gave Ms Dukaeva. He taught her how to use it. On 9 May 2001, the Appellant told Ms Dukaeva where to find Labzanov, so that she could take revenge on him; and, that evening, she called at that address and shot Labzanov several times with the gun, causing him fatal wounds.
- Ms Dukaeva was arrested the following day; and, in due course, she was charged and convicted of the murder of Labzanov and possession of the weapon. She was sentenced to 6 years' imprisonment, which she has served. In May 2016, she left Russia; and now lives in Germany, where she is seeking asylum from Russia.
- In the meantime, the preliminary investigation had suggested that the Appellant was involved in the murder. It proved impossible to find the Appellant; and so, in August 2001, in his absence, a domestic order was made for his preventative detention and, at some stage, he was also put on the Interpol international wanted list.
- The Appellant had in fact left Russia shortly after the murder. In February 2002, he arrived in Belgium with a false passport and applied for asylum under the name of Bislan Mamuyev. In April 2005, he was granted asylum under that identity. Whilst in Belgium, he worked and his health was good. Unsurprisingly, the Russian authorities were unable to find him.
- However, on 29 July 2009, he was arrested in Belgium for, amongst other things, robbery and forgery. His house was searched, and, as well as weapons, several documents were found in the name of Arbi Zarmaev, from which it appeared that the Appellant was the person in respect of whom the Interpol wanted notice had been issued. During the course of interrogation, he said he had used the name Zarmaev when working as a customs officer in Chechnya, because he had had problems with the Russian police under the name of Mamuyev.
- On 18 August 2009, the Appellant was questioned by the relevant Belgian authority (the Commissioner General for Refugees and Stateless Persons ("the Commissioner")) in relation to his asylum claim; and he said that the version of events he had given to the police had been untrue. He had not previously worked as a customs officer, and was wanted in Chechnya for political reasons. He said that he had lived in a village near Grozny. When the first Chechen war had broken out, his house had been bombed, and he and his brother took refuge in the mountains until the war ended. When, in 2000, the second war ended and the rebels left Grozny, he and his brother were taken from their village to the notorious military base at Khankala, where they were subjected to heavy questioning. He had managed to escape in December 2001, and eventually made his way by car to Belgium. He said the version of events he had given to the police had been untrue as a result of medication he had been taking.
- The Appellant was charged with further offences arising out of the use of a false identity. He remained on remand until he was tried and convicted of the various offences, and sentenced to 18 months' imprisonment in January 2010. He completed that sentence in January 2011.
- In the meantime, on 2 September 2009, the Appellant's refugee status was withdrawn, on the basis that it had been obtained by fraud. The Appellant appealed to the relevant Belgian judicial body (the Council for Foreign National Cases ("the CCE")). In the appeal, for the first time, the Appellant said that he had fought as a commander in the second Chechen war, and had been in hiding from the Russian authorities since then. In the light of the inconsistencies in his accounts (which, the court considered, the Appellant had not justified), the court concluded that it could not give credence to his assertion that he had been a rebel commander or that was why he was wanted by the Russian authorities. The appeal was refused on 30 September 2009.
- The Appellant made a further asylum claim – his second – on 28 October 2009, on a similar basis to his case on his appeal the previous month. That application was promptly rejected on the basis that the Appellant had not produced any new evidence that could not have been presented in his first asylum claim. An appeal against that decision was rejected on 19 February 2010. A third asylum claim was made and rejected on the same basis, an appeal being refused on 15 September 2010.
- On 13 July 2011, the Appellant made a fourth asylum claim, supported by (i) fresh evidence of his combatant role in the Chechen wars, and his unit's involvement in the disappearance and murder of Russian soldiers including the eminent General Malofeyev; and (ii) a new statement from Ms Dukaeva, then still living in Chechnya, stating that the Appellant was innocent of any part in the murder of Labzanov. The Commission refused the application. It considered that there was every reason to consider that the evidence concerning General Malofeyev had been solicited by the Appellant to avoid extradition, and it had no weight. It did not consider that any of the new evidence, including that from Ms Dukaeva, made the Appellant's story any more credible.
- On appeal, the Appellant relied upon the reports of two psychiatrists, to support his contention that he suffered from post-traumatic stress disorder ("PTSD") as a result of which he had concentration and memory problems. The CCE rejected the appeal, concluding that the Appellant's mental condition could not properly explain the inconsistencies in the various accounts he had given from time-to-time. It also concluded that the diplomatic assurances given by the Russian Federation were equivalent to those given in other cases, and ensured that, on return, there would be no real risk of a breach of article 3 or article 6 of the ECHR; and the assurances from the Russian Prosecutor were also reliable and credible. On 13 February 2013, the Conseil d'État, to which any further appeal lay, declared that no further appeal would be allowed.
- In the meantime, extradition proceedings continued in Belgium. The Minister of Justice took the decision to extradite the Appellant on 8 March 2011, but the Appellant applied to the Conseil d'État for a stay. That was refused. The substantive application to the same court for an annulment of the extradition order proceeded, with the intervention of Amnesty International; but, on 30 January 2013, the Conseil d'État dismissed the application, on the basis that it was not plausible that the Appellant had had a combatant role in the Chechen resistance movement, and that diplomatic assurances given by the Russian Federation were sufficient to exclude the risk that he would be subject to treatment contrary to article 3. It also considered that there would be no breach of article 6. The Belgian authorities also rejected the Appellant's explanation that his PTSD explained his problems in concentration and memory, thus explaining the manifest inconsistencies between the versions of events he had given from time-to-time.
- In parallel with those domestic proceedings in Belgium, on 30 December 2009, through a Belgian lawyer, the Appellant applied to the European Court of Human Rights ("the ECtHR"), asserting that his extradition to the Russian Federation would breach article 3 and/or article 6 of the ECHR (Application No 35/10). It was contended, amongst other things, that the Appellant would be at risk of a rigged trial contrary to article 6 of the ECHR, and treatment during his detention that would reach the threshold of seriousness required by article 3.
- That application was rejected on 27 February 2014. The ECtHR noted that the only explanation for the inconsistences between his stories was that he was allegedly suffering from PTSD which required him to take medication which allegedly caused him concentration and memory problems. The court considered that that explanation, dismissed repeatedly by the Belgian authorities, "is manifestly inadequate to justify the said inconsistencies and contradictions" (see ). The court also:
i) found that the Appellant's personal involvement in the Chechen wars to be "improbable" (see -);
ii) noting that the Russian Federation was a party to the ECHR and the Extradition Convention, considered that the assurances received from the Russian authorities would effectively eliminate any risk of a breach of article 3 of the ECHR, either as a result of the conduct on the investigation and trial or his detention (see  and following)); and
iii) held that the article 6 part of the application to be manifestly ill-founded (see -).
The judgment of the ECtHR was handed down on 27 February 2014, becoming final on 27 May 2014.
- Therefore, by May 2014, on the evidence provided to them by the Appellant who was legally assisted, the Belgian courts and the ECtHR had consistently concluded that:
i) The Appellant's version of events generally lacked credibility.
ii) He had probably not been an active rebel combatant in the Chechen wars.
iii) He had no association with the murder of General Malofeyev.
iv) The inconsistencies in the accounts he had given could not be explained by his mental condition or the drugs used in respect of his mental condition.
v) On return to the Russian Federation, there was no real risk of him suffering torture or inhuman or degrading treatment contrary to article 3 of the ECHR, either during the course of the investigation and trial or otherwise whilst he was in detention.
vi) There was no risk of the Appellant suffering a flagrant denial of justice contrary to article 6 of the ECHR.
- It might have been expected that that would have been the final word on the matter, those issues having been considered and determined by the highest court in Belgium and the ECtHR. But not so. Following his failure in the European Court, the Appellant, who was at large, left Belgium, travelling to the United Kingdom. On 10 June 2015, he was arrested here on a provisional warrant. On 7 July 2015, the Nadteretchny District Court issued an arrest warrant; the following day, the appropriate Russian Federation authority made an extradition request to the Secretary of State; and, on 14 July, the Secretary of State certified the request. Proceedings thereafter continued in the Westminster Magistrates' Court, culminating in a four-day hearing before Judge Riddle.
- Judge Riddle considered each issue afresh, on the evidence before him. However, perhaps unsurprisingly, his findings were similar to those which had been previously reached by other courts. After a meticulous consideration of the evidence, he concluded:
i) The Appellant's account was not capable of belief, such that the judge "formed the view that the [Appellant] is lying to the extent that nothing he says can be believed" (pages 14-17 of his judgment, the quotation coming from page 17).
ii) Whilst the judge said he could not be sure, he considered it "is highly unlikely that [the Appellant] was a fighter in the first [Chechen] war, and even more unlikely that the Russian authorities should think he was a fighter in that war" (page 20). There was no evidence that he fought in the second war, and the possibility that he did was "remote" (page 22).
iii) In respect of the murder of General Malofeyev, the judge found the Appellant's account to be untrue; and there was no reason to believe the Russian Federation held him responsible (page 23).
iv) The judge accepted that the Appellant suffered from PTSD; but found that that was no impediment to him giving a clearly expressed account, and the Appellant's condition was not the cause of many of the discrepancies in his evidence (page 26).
v) The judge proceeded on the basis that, without assurances, there would be a real risk that the prison conditions in Russia under which the Appellant would be detained would breach article 3 of the ECHR (page 27); but the assurances given by the Deputy District Prosecutor General of the Russian Federation (which were in similar terms to the diplomatic note which communicated the extradition request to Belgium, considered adequate by the ECtHR) were sufficient to eliminate the risk of the Appellant being subject to treatment that breached article 3 (pages 30-31).
vi) There were no grounds for considering the Appellant would be tortured or beaten into confessing – or that Ms Dukaeva or any witness had been beaten to obtain evidence against him – but, in any event, there were "no grounds for believing that a Chechen jury would not comprehensively reject evidence obtained by torture" (page 28). There was therefore no risk of a breach of article 6 of the ECHR.
vii) British diplomats will be able to monitor the Appellant's position in Chechnya (page 33).
viii) It would be unlikely that the Appellant would be removed for questioning from a SIZO (pre-detention facility) to (e.g.) a police station where ill-treatment would be more likely (page 6).
ix) None of the other grounds relied upon by the Appellant had been made good.
- Judge Riddle thus found that there was no statutory bar to extradition, nor would extradition breach the Appellant's ECHR rights; and he sent the matter to the Secretary of State on that basis. The Appellant now appeals against the judge's decision.
The Grounds of Appeal
- Mr Hawkes, on behalf of the Appellant, relies upon eight grounds of appeal, which can be summarised as follows.
- Ground 3: Mental Health (section 91 of the 2003 Act): The Appellant suffers from mental health issues – he has been diagnosed as having PTSD and depression, and may also have suffered a traumatic brain injury – which makes him particular vulnerable to violent behaviour from (e.g.) fellow prison inmates and prison authorities. His risk of suicide is very high. His extradition would consequently be oppressive.
- Grounds 6 and 7: Passage of time (sections 82 and 87 of the 2003 Act, and article 8 of the ECHR): Over 15 years have elapsed since the offences of which the Appellant is accused. Although Mr Hawkes accepts that the Appellant fled Belgium to avoid extradition, he submits he is entitled to rely upon the time from 2001 until he left Belgium in 2014; and, in the circumstances (notably his mental health condition) it would be both oppressive and in breach of article 8 to return him to Russia to face these charges now.
- Grounds 1, 2 and 5: Torture and Ill-treatment (section 87 of the 2003 Act, and articles 3, 6 and 13 of the ECHR): It is said that, generally, ill-treatment of prisoners in Russia is rife; and, in particular, torture of suspects and witnesses by the authorities in Russia to elicit confessions and evidence implicating others is widespread and well-documented. The main source of evidence against the Appellant is Ms Dukaeva; and there is a real risk that her evidence was obtained through torture or ill-treatment, or the threat of torture or ill-treatment. There is a real risk that evidence obtained by torture will be used at any trial of the Appellant. The assurances provided by the Russian authorities are inadequate to assuage fears of a real risk of treatment that would breach article 3 and article 6: the Russian Federation cannot be trusted to comply with such assurances, which in any event in practice will not bind or control the behaviour of the Chechen President Ramzan Kadyrov and authorities under him. There would be no adequate remedy for serious violations of article 3 and/or 6, as a result of torture of ill-treatment.
- Ground 4: Extraneous considerations (section 81 of the 2003 Act): This is linked to Grounds 1, 2 and 5. The Appellant claims that he has some association with those who allegedly killed the Russian army general, General Malofeyev. Although the Appellant's assertions that he was a rebel fighter in the wars and was in the unit that was responsible for General Malofeyev's death were dismissed by the judge, they are likely to be taken at face value by the Russian authorities. There is a real risk that the Appellant's imputed political opinion will result in physical reprisals against him, as well as an unfair trial.
- Ground 8: Specialty (section 95 of the 2003 Act): This too is linked to Grounds 1, 2 and 5. No submission has previously been made in relation to specialty protection; but it is now submitted that that the real reason for the extradition request is not to face charges in relation to Labzanov's murder, but rather to prosecute (or, even, persecute and/or "eliminate") the Appellant for his role as a combatant in the Chechen conflicts.
The Appellant's Application to Admit Further Evidence
- This appeal was issued on 29 April 2016. On 2 November 2016, Sir Stephen Silber sitting as a High Court Judge granted permission to appeal, with the observation: "The evidence of Za[i]ra Dukaeva makes this appeal arguable". That was a reference to evidence that was not before Judge Riddle. Sir Stephen Silber suggested that, absent that evidence, he would not have granted permission. Certainly, as matters have evolved, new evidence has become the focus of the appeal.
- On 8 March 2017, this court (Sir Brian Levenson P and I) adjourned the substantive hearing of the appeal to enable further evidence of Ms Dukaeva referred to in the judgment of the ECtHR, but not before Judge Riddle, to be obtained; and for all fresh evidence, upon which either party sought to rely, to be put into proper form and, where necessary, translations from the Russian original provided.
- As a result, a substantial amount of fresh evidence has now been produced by the Appellant, which he seeks to adduce and rely upon, namely (i) further medical evidence, (ii) further country evidence, particularly evidence as to Russian law and procedure, (iii) further secondary source materials, and (iv) evidence of Ms Dukaeva and other prosecution witnesses. None of this was produced to Judge Riddle, and the Appellant through Mr Hawkes applies to have it admitted on the appeal as fresh evidence.
- The proper approach to such applications is now well-established and uncontroversial.
- This appeal is made under section 103 of the 2003 Act. On such an appeal, the powers of this court are set out in section 104(1), and are limited to (a) allowing the appeal, (b) directing the district judge to decide again a question (or questions) which he decided at the extradition hearing or (c) dismissing the appeal. The court may allow the appeal only if one of a number of sets of conditions are satisfied, the relevant conditions in this case being those set out in section 104(4), namely that "(a)… evidence is available that was not available at the extradition hearing; (b) the… evidence would have resulted in the judge deciding the relevant question before him at the extradition hearing differently" so that he would have been required to order the person's discharge. The requirement in (a) is sometimes referred to as "the availability requirement", and that in (b) as "the materiality requirement".
- These requirements were considered by this court (Sir Anthony May P and Silber J) in Szombathely City Court v Fenyvesi  EWHC 231 (Admin), in the context of materially identical wording in section 29(4) of the 2003 Act. The President, giving the judgment of the court, said this:
32. In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available…. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing….
33. The court, we think, may occasionally have to consider evidence which was not available at the extradition hearing with some care, short of a full rehearing, to decide whether the result would have been different if it had been adduced. As Laws LJ said in The District Court of Slupsk v Piotrowski  EWHC 933 (Admin) at , section 29(4)(a) does not establish a condition for admitting evidence, but a condition for allowing the appeal; and he contemplated allowing fresh material in, but subsequently deciding that it was available at the extradition hearing. The court will not however, subject to human rights considerations which we address below, admit evidence, and then spend time and expense considering it, if it is plain that it was available at the extradition hearing. In whatever way the court may deal with questions of this kind in an individual case, admitting evidence which would require a full rehearing in this court must be regarded as quite exceptional.
34. Section 29(4) of the 2003 Act is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in [Miklis v Deputy Prosecutor General of Lithuania  EWCA 1032 (Admin)], there may occasionally be cases where what might otherwise be a breach of the [ECHR] may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. The justification for this would be a modulation of section 29(4) with reference to section 3 of the Human Rights Act 1998…".
- Therefore, where an appellant is seeking to adduce fresh evidence on an extradition appeal to this court, he must show that:
i) the evidence did not exist at the time of the extradition hearing, or was not at the disposal of the appellant and which he could not with reasonable diligence have obtained; or
ii) the evidence, if admitted, might avoid a breach of the ECHR; and, in either case
iii) there would have been a real prospect of the result of the extradition hearing before the magistrate being different had the evidence been before him.
The Parties' Submissions
- In respect of each category of fresh evidence, Mr Hawkes submits that it was either not available at the time of the hearing before Judge Riddle or it evidences a potential breach of article 3 and/or 6 if the Appellant is extradited; and, in either event, it is material, in the sense that, taking it into account, either Judge Riddle's decision might have been different or there is now evidenced a real risk of a human rights violation if the Appellant were to be extradited. Mr Hawkes submits that the appropriate course is to admit the new evidence; and, having done so, the court should allow the appeal and discharge the Appellant. Alternatively, the court should remit the matter back to the magistrates' court under section 104(1)(b) of the 2003 Act, with a direction that, on the basis of all the evidence (including the new evidence) the District Judge decides again identified questions, in effect all the determinative questions decided by Judge Riddle last year.
- Mr Caldwell for the Respondent submits that none of the new evidence is properly admissible; but, insofar as it is, then he agrees that the magistrates' court and not this court should determine the relevant questions of fact – and, in those circumstances, remittal on a restricted number of questions may be appropriate.
- I shall deal with the categories of evidence in turn.
The Medical Evidence
- The medical evidence before Judge Riddle comprised two reports prepared whilst the Appellant was in Belgium (a report of a psychotherapist Professor Giorgio Gagliardi dated 5 April 2011, and a report of a consultant psychiatrist specialising in post-traumatic and exile-related psychiatric disorders Dr Dan Schurmans dated 8 May 2013); and a more recent report of a consultant psychiatrist Professor Cornelius Katona dated 30 November 2015. On the basis of that evidence, Judge Riddle accepted that the Appellant had PTSD; but found that that condition did not prevent him giving evidence in a clearly comprehensible way, and that it did not explain many of the inconsistencies in his evidence.
- In his initial report, Professor Katona said that the Appellant's particularly bad recall might reflect a traumatic brain injury as a result of his reported history of head injury and unconsciousness. He said that brain imaging and neuropsychological assessment would be helpful in establishing the nature and extent of any brain injury and/or cognitive impairment.
- The Appellant now seeks to rely upon reports by a neuropsychologist Dr Séan Haldane dated 2 September 2016 and by a psychologist Dr Georgina Clifford dated 5 September 2016, and a further report by Professor Katona dated 13 July 2017. Dr Haldane concluded that the Appellant's impairment of memory and executive function, as he found it to be, were consistent with traumatic brain injury; and that the only reported episode described by the Appellant which could have caused such an injury – because it was the only episode in which he said that he had lost consciousness – was when he had been beaten to the head with rifle butts when captured by the Russian Army in the Chechen war. Dr Clifford's report is to the effect that traumatic brain injury can increase the risk of the development of PTSD in response to later traumatic experiences. Dr Haldane said that the Appellant had provided to him a consistent history, with few discrepancies; and he was "especially clear and consistent in his current interview with [him]" (paragraph 7.4). However, he considered that the neuropsychological examination he performed "provides evidence of brain damage" (paragraph 8.4(8)). He concluded that the Appellant was suffering from the effects of an acquired traumatic brain injury, which had exacerbated the PTSD particularly described by Dr Clifford, with the main cognitive effects being in working and episodic memory, and executive function control (paragraph 10.1-10.3). Confused and contradictory accounts were inevitable, because of the inevitable gaps in the Appellant's memory as he tried to recall events (paragraph 10.8). He did not think that the Appellant was deliberately underperforming ("faking bad"); but, rightly, accepted that a determination of whether the Appellant was lying, or had lied, was outside his remit. In his recent report, having reviewed the new evidence from the psychologist, Dr Katona concluded that the Appellant's mental state had deteriorated since he had last seen him, and would further deteriorate if he were extradited; and his current moderate risk of suicide would increase to become high once the Appellant lost hope of remaining in the United Kingdom.
- Mr Hawkes' key submission was that, now, there is clear evidence that the Appellant suffers from a traumatic brain injury, which materially changes the picture of his mental condition. However, I am unpersuaded that this new medical evidence is admissible on that score: as Mr Caldwell compellingly submitted, that evidence was "available" in the Fenyvesi sense at the time of the extradition application before the magistrates' court, and in any event there is no real prospect that the new evidence would have altered Judge Riddle's decision to extradite.
- By 30 November 2015, the Appellant had reported to Professor Katona that his head had been beaten with rifle butts by Russian soldiers, and Professor Katona had, on the basis of the Appellant's cognitive impairment test scores, identified the possibility that he might have traumatic brain damage; and that brain imaging and detailed neurological assessment might be helpful in establishing the nature and extent of any such injury. I appreciate the difficulty in obtaining brain imaging when the subject is in prison; but no such imaging has in fact yet been performed. The psychological testing that has been done by Dr Haldane has produced results that are consistent with traumatic brain damage, but, as Mr Hawkes accepted, as a psychologist, Dr Haldane cannot diagnose such a condition. The only new evidence therefore amounts to no more than further psychological test results that are consistent with traumatic brain damage. In any event, although the precise condition may be relevant to prognosis and treatment, the focus of Judge Riddle (and the Belgian courts and the ECtHR before him) was not on diagnosis, but on functional impairment which could be judged without reference to any particular diagnosis. I am confident that, had this new evidence been available, there is no real possibility that it would have altered Judge Riddle's decision that the Appellant's mental health was not a bar to extradition.
- For those reasons, I would not admit the new medical evidence.
Expert Evidence on Russian Law and Procedure
- Before Judge Riddle, the Appellant relied upon the expert evidence of Professor William Bowring, a barrister and Professor of Law at Birkbeck University, London, who specialises in (amongst other things) the laws of Russia, particularly in the context of extradition, immigration and asylum, and human rights. He produced several reports dealing with specific questions of law, as well as more general topics such as blood feuds in Chechnya, discrimination against Chechens in Russia, prison conditions in Russia including specifically in Chechnya, and assurances given by the Russian authorities.
- As particularly relevant to this appeal, Professor Bowring said:
i) It would be unlikely that the Appellant would be removed for questioning from a SIZO to a police station or other place where ill-treatment would be more likely.
ii) At any trial, the Appellant would be able to give oral evidence in his own defence (paragraph A1 of his report dated 16 February 2016).
iii) Ms Dukaeva could be compelled to give evidence. However, if the Russian authorities were unable to produce Ms Dukaeva to give evidence, it is "quite likely" that the case against the Appellant would be dropped; although there would be some risk that he would not be released immediately, and could spend a substantial time in detention (paragraph A3).
iv) If extradited, the Appellant would be entitled to trial by jury on the charges of which he stands accused (paragraph 49 of his report dated 7 December 2015).
v) Russian juries take their obligations very seriously (paragraph 51).
vi) Although the acquittal rate in courts of general jurisdiction is less than 1%, juries in Russia acquit at a rate of 20% (paragraph 50).
vii) A Chechen jury would be more sympathetic to the Appellant than a court elsewhere in Russia (paragraph 50).
viii) If the Appellant were acquitted, the prosecution could seek a re-trial; and there would be a real risk of conviction on a second trial (paragraph 52).
- The new evidence from Professor Bowring upon which the Appellant wishes to rely includes the following:
i) The Appellant would not be entitled to trial by jury, but would be tried by judge alone (paragraphs 38-41 of his report dated 13 February 2017).
ii) The acquittal rate in non-jury cases in Russia is less than 1% (paragraph 45).
iii) If they cannot call her to give evidence, it is likely that the Chechen court will allow the Russian prosecuting authorities to read out and rely upon Ms Dukaeva's statements from 2001 (paragraphs 12-19 of his report dated 13 September 2016).
- This is supplemented by two reports from Murad Musaev of Musaev Associates, a firm of advocates in Moscow, who the Appellant instructed to obtain the prosecution files. He says:
i) The acquittal rate for non-jury trial is Chechnya is nil (paragraph 4 of his report dated 23 May 2017). The Appellant has "absolutely no chance for acquittal" (paragraph 35 of his statement dated 23 May 2017)
ii) The prosecution will be able to read out and rely on the statements of Ms Dukaeva, even if there is no opportunity to cross-examine her or challenge her evidence (paragraph 8). It is unlikely that the court would allow Ms Dukaeva to give her evidence by way of video link, even if she were willing to give it in that way (paragraph 33-34).
iii) Removal from a SIZO to a police station or IVS (temporary detention facility) is more than a remote possibility (paragraphs 1-3).
iv) There has been the wholesale replacement of members of the Russian Public Monitoring Commission ("ONK"), that will play no more than a purely formal role (paragraphs 3-26 of his report dated 13 February 2017). This has to be coupled with the confirmation received from the UK Foreign and Commonwealth Office that it will no longer monitor non-UK nationals abroad.
- I find this category of new evidence the most worrying, particularly the evidence as to whether any trial of the Appellant in Chechnya would be with a jury. This issue does not appear to have been addressed at all in the proceedings before the Belgian courts and the ECtHR (which found the article 6 argument to be manifestly ill-founded). It is, to say the least, concerning that the Appellant's expert evidence before Judge Riddle was that any trial would be with a jury, whereas now it is common ground that the charges will be tried by a judge alone. Although the Respondent did not correct the position before Judge Riddle, Mr Caldwell says (and I accept) that they were never asked to confirm or deny that point, as the matter was not put in issue. In his judgment, Judge Riddle understandably relied upon the agreed fact that there would be a jury, e.g. when dealing with the possibility that the prosecution might seek to rely upon evidence that was obtained as a result of torture. On the basis of the evidence of Professor Bowring, he considered that a Chechen jury would deal with such matters robustly. He also clearly had in mind that the acquittal rate with a jury was substantial (i.e. about 20%); and he observed that there was no evidence to suggest that this was any different from the acquittal rate in England and Wales. It is now common ground that there will not be a jury – the trial will be by way of judge alone – and the Respondent has not sought to question the evidence concerning the acquittal rate to the effect that that rate is less than 1% and, in effect, nil.
- It is true that the Russian authorities have given a firm assurance that evidence has not, and will not, be obtained by torture; that the ECtHR, the Belgian courts and Judge Riddle all considered that such assurances were reliable; and Judge Riddle found, on all the evidence, that there were no grounds for believing that the Appellant would be tortured or beaten into confessing. However, the proposition that the Appellant would be tried by a jury, who are robust enough to acquit on the evidence, clearly infuses the whole of Judge Riddle's judgment. He cannot be faulted for that. But now it is common ground that the Appellant will be tried by a judge alone, and the evidence is that the acquittal rate before a judge alone is nil. That new evidence clearly goes to the article 6 issue. It may or may not have affected the judge's decision to send the matter back to the Secretary of State; but I am unable to say that there was no real or reasonable prospect that it did not do so.
- Furthermore, Professor Bowring's evidence has changed in at least two further substantial ways:
i) In his evidence before Judge Riddle, he said that, without Ms Dukaeva's evidence, the case would likely be withdrawn. Now, he says that, if Ms Dukaeva does not attend the trial (as she says she will not), the case will continue; and her evidence will be read out, without challenge.
ii) He proceeded on the basis that the Russian authorities in Chechnya would be monitored; but the evidence is now that the members of ONK have been replaced and that English diplomats do not monitor non-UK citizens abroad.
- Further still, Mr Musaev's evidence is that, contrary to the assumption of Judge Riddle that the Appellant would not be removed from a SIZO for questioning, there is a real risk that he will.
- In all the circumstances, I do not consider the new evidence to be immaterial; and I would admit the further statements of Professor Bowring, and the evidence of Mr Musaev. Mr Caldwell submits with some force that Mr Musaev's evidence includes matters concerning cultural norms that may be outside the scope of his expertise; but I am confident that any judge considering that evidence will simply give it appropriate (and, possibly, very little if any) weight.
Secondary Source Materials
- The Appellant seeks to rely upon various further secondary source materials, namely (i) a report from the Sunday Telegraph of 17 September 2017, "Kangaroo courts 'rounding up innocents and extracting confessions through torture' in Chechnya"; (ii) a Human Rights Watch Report dated 26 May 2017, "They have long arms and can find me: Anti-gay Purge by Local Authorities in Russia's Chechen Republic"; (iii) two United States State Department Country Practice Reports on the Russian Federation, for events in 2015 and 2016 respectively; and (iv) an article by Mikhail Pozdniakov, "The Courts and Law Enforcement System: The Price of Compromise (Russian Politics and Law vol 54 nos 2-3, pp 166-190).
- Mr Hawkes did not seek specifically to press the application in respect of this evidence at the hearing. In my view, he was wise not to do so: it does not arguably change the general picture of conditions etc in Chechnya as set out before Judge Riddle.
- I would not admit this evidence.
The Evidence of Ms Dukaeva and Other Lay Witness Evidence
- The Appellant's attempts to obtain evidence from Ms Dukaeva are described by his solicitor, Kate Goold of Bindmans LLP, who has been acting for him since his arrest in June 2015, in three statements dated 19 May 2016, 13 September 2016 and 29 September 2017. She tried to obtain contact detail for Ms Dukaeva in December 2015, through an acquaintance of Ms Dukaeva called Imran Ezheev, who appears to be an adviser to an MEP on matters relating to refugees in the EU; but she was told that he was now in Germany, and Ms Dukaeva (having been released from prison in May 2007) was in hiding in Chechnya and he did not know where. However, through Mr Ezheev, on 8 May 2016 (of course, after Judge Riddle's decision), Ms Goold was provided with a telephone number for Ms Dukaeva, in Chechnya; and she contacted her by telephone on 12 and 19 May 2016, when she prepared a draft statement which was then translated. In June 2016, Ms Goold learned that Ms Dukaeva was in Germany, and obtained her telephone number, again through Mr Ezheev. Ms Goold spoke to her on 16 June 2016, and again on 25 August 2016 with a somewhat better interpreter. A second statement dated 8 September 2016 was prepared. Ms Goold has also obtained Ms Dukaeva's letter to Mr Erzheev referred to in the European Court of Human Right's judgment; a video of an interview between Mr Erzheev and Ms Dukaeva and her parents in 2013; and Ms Dukaeva's statements etc from the Russian police.
- Therefore, in respect of Ms Dukaeva, the Appellant seeks to rely upon the following fresh evidence:
i) A transcript of the interrogation statement of Ms Dukaeva as an accused person, by the Assistant Prosecutor, on 20 May 2001.
ii) A transcript of the interrogation statement of Ms Dukaeva as a witness, by the Assistant Prosecutor, on 21 June 2001.
iii) Witness statements dated 21 June 2001 taken in relation to the investigation of the murder from each of the following witnesses: Aslan Ahmedovich Banzhaev, Muslim Dzalilovich Dzharmurzaev and Arbi Umarovich Dzharmurzaev.
iv) A transcript of the interrogation statement of Ms Dukaeva as a witness, by an investigating attorney of the Naursky Interregional Investigatory Department on 12 August 2009.
v) Ms Dukaeva's letter to Mr Ezheev dated 30 March 2011.
vi) A witness statement dated 6 August 2011 taken in relation to the investigation of the murder from Rumisa Khuse Dadova.
vii) A video and translated transcript of the 2013 interview with Mr Erzheev.
viii) The statements of Ms Dukaeva dated 19 May and 8 September 2016.
- In the 2001 statements, Ms Dukaeva said that, following her rape by Labzanov and his refusal to marry her, she and the Appellant had a relationship. He encouraged her to kill Labzanov, and bought a gun and taught her to use it. However, she could not do it; so that, in the event, on 9 May 2001, the Appellant shot the man, but persuaded her to admit to it because she had a sound reason for doing so, i.e. the loss of her honour, and he had threatened her. In the 2009 statement, she accepted that she had been the shooter, the Appellant having provided her with the gun.
- In the 2011 letter to Mr Ezheev (which the ECtHR had, but Judge Riddle did not), Ms Dukaeva said that the Appellant had nothing to do with the crime. She had obtained the gun from some soldiers, and had given false evidence against the Appellant because she had been convinced by the investigating officer that, to do so, would entitle her to a suspended sentence. She was also told that the Appellant had left Russia and so her evidence could not present any danger to him. It was for those reasons that she gave false evidence, which she deeply regretted.
- At the meeting in 2013, Ms Dukaeva's father said that he and the Appellant fought together against the Russian Army in the Chechen wars; and Ms Dukaeva said that he did not instigate the murder of Labzanov, describing the prosecution case against the Appellant as "ludicrous". She said she only found out about the Appellant being connected to the murder after her release from prison. Her mother said it was obvious that, if he were returned to Russia, he would be persecuted and killed.
- In her first statement to Ms Goold (i.e. that of 18 May 2016), Ms Dukaeva said, for the first time, that she had been beaten as soon as she was taken to the Znaminski Police Station after her arrest; and they started to ask her to accuse the Appellant of the murder of Labanazov. Eventually, she became so scared that she signed blank pages. She said she was tortured, shouted at and beaten up "and hurt in ways I cannot go into". She was told that her father's house had been searched, and explosives found under the sofa. She made up the story about the Appellant to save her father. However, although she made up that story, her father was not released; and she got a light sentence of six years, not because of the confession, but because she had a "good judge". She said she did not want the Chechen Government to know that she had accused the police of torturing her and fabricating evidence, because that would be very dangerous for her.
- That statement was made when Ms Dukaeva was still in Chechnya. By the time of her statement of 8 September 2016, she was in Germany. In that statement, she repeated that she was tortured with electric shocks etc into signing documents implicating the Appellant in the murder. She was told that, unless she signed the papers, her father (who was also being tortured) would never be freed. She said that she thought she had PTSD; and that her memory had been adversely affected by her experiences. She said she was willing to give evidence in the extradition case here; but she has made clear that she is unwilling to give evidence at any criminal trial of the Appellant in Russia.
- I accept the statements of Ms Goold, as to her efforts to obtain evidence from Ms Dukaeva – and I accept that this evidence was not "available", in Fenyvesi terms, as the time of the extradition application heard by Judge Riddle. At that time, Ms Dukaeva was maintaining a low profile, and reasonable efforts to locate her had not borne fruit. Whether Ms Dukaeva's new evidence would have altered Judge Riddle's decision is a more difficult question – the inconsistencies in her evidence are gross and obvious, and she did not refer to torture as the reason for her implicating the Appellant until very late in the day – but, after much consideration, I have been persuaded that it reasonably might have done so.
- I would admit Ms Dukaeva's evidence.
- The other statements obtained in the investigation process do not add a great deal to the evidence of Ms Dukaeva, without which it seems very unlikely that any prosecution of the Appellant for the offences of which he is accused would be possible.
- Mr Hawkes' submissions were firmly based upon the proposition that it was the fresh evidence he sought to adduce that ought to result in the appeal being allowed, or at least the application remitted – and Sir Stephen Silber indicated that, without the fresh evidence, he may not have granted permission to proceed – but Mr Hawkes did not formally abandon the submission that, without any additional evidence, each of his grounds of appeal was good. It would, therefore, be helpful to clear the decks.
- Ground 3: Mental Health (section 91 of the 2003 Act): In my judgment, Judge Riddle did not arguably err in concluding that the Appellant's mental condition was such that it would be unjust or oppressive to extradite him. The judge accepted that he suffered from PTSD – and had done so for some time – but there was no reason to believe that the treatment he was receiving in this country would be interrupted or set back by extradition, or that his condition removed his capacity to resist the impulse to commit suicide. Those were findings which the judge was entitled to make on all the evidence – he was not bound to accept the evidence of Professor Katona wholesale – and his findings were in line with the conclusions of the Belgian courts and the ECtHR. It is true that Professor Katona has recently said that he considers the Appellant's mental state has deteriorated, and that his risk of suicide on extradition would increase from its current "medium" to "high" – it was said to be "very high" at the time of the hearing before Judge Riddle – but I do not consider that that evidence undermines the essential findings of the judge. There is no evidence to suggest that the risk of suicide would be unmanageable.
- Grounds 6 and 7: Passage of time (sections 82 and 87 of the 2003 Act, and article 8 of the ECHR): Again, in my view, Judge Riddle did not arguably err in concluding that it would not be oppressive or unjust to extradite the Appellant by reason of passage of time, or a breach of article 8 to do so. The judge, perhaps generously, found that the Appellant was not a fugitive, and therefore could argue passage of time; but the evidence was that the Russian authorities had been searching for him since the murder, and (as the judge observed) it was unsurprising they could not find him, as he was living in Belgium under a false name. Murder is a very serious charge; and, in this country, the Appellant has no family life (his family remaining in Belgium) or private life (having spent almost all his time here in prison). It is true that the judge said that "a Chechen jury would make due allowance for passage of time", and we now know that there will be no jury; but the Appellant's defence is very straightforward, namely that he was many miles away from the scene at the time. In my view, this case falls very far short of the threshold for injustice or oppression required by section 82. Nor, in my judgment, is the proposition that the Appellant's extradition would breach article 8 arguable.
- Ground 4: Extraneous considerations (section 81 of the 2003 Act): Again, Judge Riddle did not arguably err in concluding that the Appellant's account in respect of his combatant role in the Chechen wars and his association with General Malofeyev's death was untrue; and there was no reason to believe that the Russian authorities hold the Appellant responsible for that death. The judge was entitled not to accept the evidence of the witnesses who put the Appellant in a combatant role (namely Witness A and Apti Batalov, as well as the Appellant himself); and I do not consider the judge erred in referring to the possibility that the Appellant had put presence into the minds of those witnesses (as effectively found by the ECtHR in relation to war witnesses). As the judge observed, in the final asylum claim in Belgium, the Appellant called witnesses but the tribunal concluded that their evidence did not support the Appellant's alleged personal intervention in the death of General Malofeyev. The judge heard no such evidence. Before us, Mr Hawkes pressed the submission that, even if there was no association in fact, the Russian authorities might believe there to be; but, on the evidence, Judge Riddle was clearly entitled to conclude that that was not the case.
- Ground 8: Specialty (section 95 of the 2003 Act): This does not appear to add anything of substance to the other ground put forward.
- I would therefore refuse the appeal on each of those grounds.
- However, given the fresh evidence I would admit, Grounds 1 (article 3) and 2 (article 6) are more difficult. Courts (including the ECtHR as recently as 2014) have repeatedly found that the Appellant's extradition to the Russian Federation would not be a breach of either article, the ECtHR concluding that the article 6 submission was manifestly ill-founded. However, after particularly anxious consideration, I have concluded that the new evidence about the absence of a jury, coupled with the evidence as to acquittal rates in Chechnya, how Ms Dukaeva's evidence was obtained and the lack of monitoring, might have resulted in a different conclusion by the District Judge.
- In the circumstances, and subject to submissions on the form of the order, I would propose to remit the matter to the magistrates' court under section 104(1)(b) of the 2003 Act for that court to consider whether the fresh evidence – of course, considered with the evidence originally before Judge Riddle – would affect the decision he made on the application.
- I see the force in Mr Caldwell's submission that the questions should be focused upon the particular bars that might be affected by the fresh evidence, which necessarily inform the determinative questions decided by Judge Riddle; and I would propose remitting the following questions, both arising out of the human rights provisions within section 104 of the 2003 Act:
i) Is the Appellant's extradition compatible with his rights under article 3 of the ECHR?
ii) Is the Appellant's extradition compatible with his rights under article 6 of the ECHR?
By virtue of section 104(6) and (7) of the 2003 Act, if the District Judge decides either question in the negative, he must order the Appellant's discharge; and if he answers both in the affirmative, he must send the case to the Secretary of State for her decision whether the person is to be extradited. In either event, the role of this court in the extradition application is at an end.
- For those reasons, I would admit the fresh evidence I have identified; and remit the two questions referred to above to the magistrates' court. In the first instance, the matter should be referred to the new Chief Magistrate, Senior District Judge Emma Arbuthnot, for directions.
Mr Justice Green :
- I agree.
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