Attorney General v Khatlamadzhiyev
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 27 July 2020 |
| Neutral Citation | [2020] IEHC 370 |
| Docket Number | [2015 No. 176 EXT] |
| Court | High Court |
| Date | 27 July 2020 |
IN THE MATTER OF THE EXTRADITION ACTS 1965 - 2001
[2020] IEHC 370
Binchy J.
[2015 No. 176 EXT]
THE HIGH COURT
Extradition – Delay – Conditions of detention – Applicant seeking the extradition of the respondent to the Russian Federation – Whether the conditions of detention in the Russian Federation were so bad as to violate the respondent’s rights under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
Facts: The applicant, the Attorney General, applied to the High Court for the extradition of the respondent, Mr Khatlamadzhiyev, to the Russian Federation. The request was dated 19th August, 2014, in which it was stated that the respondent was charged with the crime of “assault with intent to rob, i.e. an attack for the purpose of stealing of another’s property committed with application of force dangerous for life and health, or with the threat of application such force (sic), with illegal penetration into a dwelling, premise, or other storehouse with application of articles to be used as a weapon by an organised group”. The offences concerned were alleged to have been committed in November, 1997. The respondent contested the application principally on two grounds: delay in bringing the proceedings against him, such as to deprive him of the possibility of a fair trial contrary to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and the conditions of detention in the Russian Federation which he claimed were so bad as to violate his rights under Article 3 of the Convention.
Held by Binchy J that there could hardly be any doubt that a lapse in excess of 21 years must be regarded as exceptional, but the respondent had not even attempted to address the issue of responsibility for that delay; in particular, it would have been helpful for the respondent to have stated when he left Russia, the circumstances in which he did so and whether or not the fact that he left Russia may have been a significant contributory factor in the delay. Binchy J held that, in the absence of such an explanation, it was not unreasonable for the Court to infer that the fact that the respondent left the Russian Federation may well have been the main reason for the delay, in which case the respondent could hardly be entitled to rely upon it in opposition to the application. Binchy J held that it was clearly necessary, on the wording of s. 50 (2) (bbb) of the Extradition Act 1965 (as amended), for the respondent to satisfy the Court that there were other exceptional circumstances such as would justify a refusal of the application under the section. Binchy J held that the respondent had not identified any such circumstances for the purpose of reliance on the section. Binchy J held that this argument, in so far as it was advanced at all, must be rejected.
The Court arrived at no determination as regards the issue that remained of greatest concern to the Court i.e. whether or not the extradition of the respondent would be likely to give rise to a violation of his rights under Article 3 of the Convention, although there was evidence before the Court to this effect. Binchy J had informed the applicant that if there was no response from the Russian Federation to the queries raised by 1st April, 2020 then the application would be dismissed. There was no response from the Russian Federation on 1st April, 2020, and accordingly the application was struck out on that date.
Application struck out.
This is a judgment on an application for the extradition of the respondent to the Russian Federation. The request is dated 19th August, 2014, in which it is stated that the respondent is charged with the crime of “assault with intent to rob, i.e. an attack for the purpose of stealing of another's property committed with application of force dangerous for life and health, or with the threat of application such force (sic), with illegal penetration into a dwelling, premise, or other storehouse with application of articles to be used as a weapon by an organised group.” The offences concerned are alleged to have been committed in November, 1997.
In the request for the extradition of the respondent, the following assurances are provided:
“We guarantee that according to norms of international law, in the Russian Federation I.YU. Khatlamadzhiyev will enjoy all the resources for defence, including legal consulting; he will not be subject to torture, cruel, inhuman or degrading treatment or punishment (Art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and likewise corresponding conventions of the United Nations and the Council of Europe and protocols thereto).
The Prosecutor General's office of the Russian Federation guarantees that the request for extradition is not aimed at prosecution of the person for political reasons, or because of his race, religion, nationality and political views.
The period of limitation for making I.YU. Khatlamadzhiyev criminally liable has not expired. He enjoys no immunity to criminal prosecution.
The Prosecutor General's office of the Russian Federation guarantees that, according to Art. 14 of the European Convention on Extradition of 13.12.1957 I.YU. Khatlamadzhiyev will be prosecuted only for the offence in relation to which his extradition is sought, and after completion of preliminary investigation at trial, and, in case of pronouncement of the conviction, after service of the sentence, he will be able to leave the territory of Russia.
We guarantee that during the period of his criminal prosecution I.YU. Khatlamadzhiyev will be detained in a correctional facility which meets standards stipulated by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4th November, 1950 and the European Penitentiary Rules of 11th January, 2006, and consular officers of the Embassy of Ireland in Russia will be able to visit him at any time.”
A further document simply described as a certificate was furnished to the applicant by the Prosecutor General's Office of the Russian Federation. The precise date of this document is unclear, but it is stated on the copy furnished to the Court to be April, 2019. This certificate contains similar guarantees and assurances to those set out above. Nonetheless, it is appropriate to set them out in full:
“When submitting a request to the cognisant authorities of Ireland for Extradition of I.YU. Khatlamadzhiyev, General Procuracy of the Russian Federation guaranteed the compliance with his basic rights and freedoms of a man and a citizen.
According to Art. 3, 6, 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 11, 1950 in the Russian Federation I.YU. Khatlamadzhiyev will not be subjected to torture, inhuman or degrading treatment or punishment, his right to due process of law as well as to respect for private and family life will be upheld. The latter will be provided with all opportunities for protection, including the assistance of counsel …
If I.YU. Khatlamadzhiyev is extradited to the Russian Federation he will be housed in a correctional institution, in which the standards set out in the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 and the European minimum principles for the treatment of persons housed in prisons (in the European prison rules) of January 11, 2006 are considered and the consular officers of the Irish Embassy in Russia will be able to visit him to monitor compliance with the above guarantees at any time.”
The respondent was arrested on 1st August, 2018 and brought before this Court. A notice of objection to his extradition was filed on his behalf on 7th November, 2018. By this notice of objection, seven points of opposition were set forth, but in the end just two were advanced at the hearing of the matter. I address those below. No issue was raised on behalf of the respondent as regards the form of proofs required to satisfy the application, pursuant to the Extradition Act, 1965 (as amended) (the “Act of 1965”) and I am satisfied from a review of the extradition request and the certificate executed under seal by the Minister for Justice, Equality & Law Reform on 13th August, 2015, pursuant to s. 26(1)(a) of the Act of 1965, that the formal requirements of the Act of 1965 have been fulfilled.
The respondent also swore an affidavit dated 23rd November, 2018 in opposition to this application. In this affidavit, he denies committing the crimes of which he is accused. He further avers that he was previously incarcerated in a Russian prison in respect of a crime he did not commit, in 1997. He says that in that year he was detained in Kapotnya prison for three months, and that the conditions there were very bad. He had very little space in the cell in which he was detained, which was very cold and dirty. He says that forty prisoners shared a cell containing only twenty beds and the prisoners had to take turns to sleep. He said that they were only entitled to shower once a week and there was only one open toilet in the cell, which had only one window and no air conditioning. He avers that knives and blades were prevalent in the prison, and since he did not have any money he was victimised. He avers that he was only in the prison because he had made an admission of guilt, following a beating at the hands of the authorities. The respondent also avers that other persons mentioned in the extradition request were his friends and it is his opinion that some of those friends were tortured and forced to implicate him in the criminal acts described in the extradition request. He states that he has no doubt that he will be...
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