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Guest Post: Potential unfair trial prevents Russian extradition application

editor - August 28, 2015 - European Arrest Warrant, extradition, LEAP

Solicitor and LEAP member, Dara Robinson writes on the case of Mr Nikolay Savachenko, a Russian man who faced extradition to Russia under the 1957 European Convention on extradition. The case raises interesting questions on the use of extradition where a fair trial may not be guaranteed by the requesting state.

1280px-Four_Courts,_Dublin,_IrelandThe Irish Courts have become the latest in Europe to turn a sceptical eye on the system of criminal justice in the Russian Federation (Russia). In an extradition case heard in Dublin, Judge John Edwards refused the Russian application for the return, to be tried on a charge of murder, of Mr Nikolay Savachenko.

Four “Points of objection”, of a total of 19 filed by Savachenko’s lawyers, referred explicitly to the potential for an unfair trial in Russia, including a claim that “the Respondent will not enjoy the presumption of innocence, notwithstanding provision for same under the Russian Criminal Code”.

Judge Edwards found against Mr Savachenko on all grounds except that specific claim.  He reviewed independent reports from, inter alia, the Council of Europe, Human Rights Watch, Amnesty International, and the US State Department.  Most weight, however, was attached to a report, in the form of an Affidavit from Prof William Bowring, from the University of London.  Prof Bowring’s evidence, in turn, contained a detailed analysis of the Russian system of criminal justice.  Most significantly, Bowring cited an internal Russian, high-level, report, showing “a rate of acquittal in non-jury cases (of) less than 1%”. This statistic was confirmed by the UN Special Rapporteur on the Independence of Judges and Lawyers [in Russia] in a document dated April 30 2014.

Bowring also referred to a number of English and Strasbourg decisions– notably Ananyev & Ors v Russia (Application Nos 42323/07 & 60800/08)-  relating to prison conditions, which, as ever, painted a grim picture of life in custody in Russia.  Responding to this, Russia gave both general and specific assurances for the well-being of Savachenko, should he be returned in accordance with the Russian request.  These were, in turn, forcefully rebutted by Bowring in a further Affidavit.

Finally, lawyers acting for Savachenko submitted a substantial dossier of Strasbourg cases where breaches of Arts 3, 5, 6 and 13 had been found -in the month of October 2014 alone.

Judge Edwards carefully analysed the Article 3 concerns, citing “the general approach of the extremely experienced extradition judges at Westminster Magistrates Court”, but in the light of very specific reassurances given by Russia as to proposals for Savachenko’s detention, declined to refuse his return on that basis.

However in dealing with Art 6 rights, Judge Edwards noted “a substantial body of evidence …. painting a picture of long-standing structural weaknesses and deficiencies in [Russia’s] criminal justice system”.  Referring to bias, unfairness, poor legal representation, and unhealthy relationships between prosecutors and judges, to name but a few, he focussed on “a disproportionately high rate of convictions (in excess of 99%). He noted that Russia had failed signally to dispute that statistic, which he suggested was “strong evidence to suggest that in many Russian trials, no more than lip service is paid to the presumption of innocence”.  That presumption, he went on, is rooted in the (Irish) Constitution as a “fundamental norm”, and is to be found worldwide as a basic principle of justice. Even allowing for Russia’s civil law system, Russia is of course a signatory to the Convention, where Art 6(2) expressly guarantees it. In his view, therefore, “the failure by a (Russian) court to respect the presumption of innocence would be so egregious a matter as to amount to a flagrant denial of justice”.  The Russian application was refused.

This is the first such decision in the Irish Courts, and has been ruled by a very experienced Extradition judge.  It was based on a very substantial body of evidence, from a variety of sources, and must represent a solid precedent for the future.

This is a guest post written by Dara Robinson and may not reflect the views of Fair Trials. Dara Robinson is a solicitor and LEAP member based in Dublin, Ireland.

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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