Lutsyuk v Government of Ukraine

LORD JUSTICE LAWS: This is an appeal brought under section 103 of the Extradition Act 2003 against the order of Deputy Senior District Judge Wickham made on 13 November 2011 to send the appellant's case to the Secretary of State under section 87(3) of the Act for her to decide whether he should be extradited to Ukraine. The Secretary of State proceeded to order his extradition on 16 January 2012. The case raises issues under Article 3 of the European Convention on Human Rights, which, as is well known, provides that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment.

On 7 August 2001 the appellant was convicted at the Khmelnytsky City Court of an offence of robbery committed on 23 February 2001. He was sentenced to 2 years imprisonment in a high security penal colony. His appeal against sentence was dismissed on 30 October 2010. The appellant, who was on what would here be called conditional bail, went into hiding. The court ordered his arrest on 16 December 2004. As I understand it, he was traced in the United Kingdom in July 2009 but the extradition request was received here after that date and he was not arrested until 25 May 2011. He appeared at Westminster Magistrates' Court the following day and was bailed on 8 June 2011. The extradition hearing took place on 7 November 2011.

The only submission advanced before the Deputy Senior District Judge on behalf of the appellant was that his extradition would be incompatible with his rights pursuant to Article 3, so that by force of section 47(2) of the 2003 Act he was entitled to be discharged. The essence of his case was as to the conditions in which it was said he would be confined in Ukraine if he were returned to serve his sentence. District Judge Wickham heard live evidence called for the appellant from Professor William Bowring, Professor of Law at Birkbeck University, though the appellant gave no evidence himself. Professor Bowring had provided a report dated 21 August 2011. He has much experience of Ukraine but had not visited a Ukrainian jail for over 10 years. In his very detailed report of August 2011 he cited many sources on the nature of prison conditions in Ukraine. They included the asylum country guidance decision of the Asylum and Immigration Tribunal, PS(Prison Conditions; Military Service) Ukraine v Secretary of State for the Home Department CG [2006] UKAIT 00016. He cited also the US State Department 2010 Human Rights Report on Ukraine; the 2007 conclusions of the UN Committee Against Torture; the 2007 report of the Council of Europe's Committee for the Prevention of Torture (CPT); decisions of the European Court of Human Rights condemning violations of the Article 3 rights of detainees in Ukraine; and other materials. This evidence recited a litany of bad conditions. Purely by way of example, the United States State Department report has this:

The tribunal in PS -- and this is a document of considerable importance in the case, as I shall explain -- said this at paragraph 100:

That conclusion followed a thorough and detailed review of a considerable body evidence. The CPT report, from which Professor Bowring quoted substantial passages, described conditions in three penitentiary establishments: one for persons with TB, one for women and one for men. It drew attention to allegations of severe beatings at one: Temnivka colony No. 100 for men. Lesions were seen on the prisoners consistent with their allegations. This report also referred to the inadequacy of medical care. Professor Bowring noted other reports to the effect that in 2010 the prison population was rising (see paragraph 38 of his August 2011 report), that conditions were especially poor in the remand prison "SIZOs" (see paragraph 39), reports of 39 deaths in custody in 2010 (paragraph 40), and of over half a million reports and of torture and violence and of dangers to health in Lukyanivka prison (paragraph 43).

It seems that in his oral testimony at the extradition hearing Professor Bowring changed his view as to where the appellant would be held. He then believed it to be a serious possibility that he would first be detained in a remand prison, the Kyiv SIZO. District Judge Wickham considered, paragraph 15, that there was some doubt as to where the appellant might serve his sentence if returned. She said this of Professor Bowring:

District Judge Wickham then referred to the response of the Ukraine authorities to Professor Bowring's report which had been submitted to them. This response is contained in a document dated 12 September 2011 signed by a Mr Kulchytsyy, a Ukraine government agent before the European Court of Human Rights. It sets out various provisions of the Criminal Executive Code of Ukraine. It describes various requirements concerning prison conditions and gives certain information, to a large extent statistical, about health care in prisons and some other matters. There are also some details about provisions in place for monitoring conditions in the prisons. It takes issue with Professor Bowring's reliance on the Strasbourg Court judgments. It concludes, somewhat baldly, with the statement that the appellant "will not be subjected to torture or inhuman or degrading treatment or punishment". There is also an assurance that the specialty rule would not be breached.

The appellant seeks to assault the decision of the District Judge on a number of grounds, but also relies on new evidence, namely a fresh report from Professor Bowring dated 13 September 2012 and a report from a Ukrainian trial lawyer, Valentyna Telychenko, which appears to be undated but I assume was prepared after July 2012 (when it seems the appellant's solicitors sought an extension of legal aid for that to be done). Section 104(4) of the 2003 Act contemplates that a section 103 appeal may be allowed in the light of new evidence.

In his September 2012 report Professor Bowring gives an updated account of his experience and expertise. He describes visits to Ukraine by the CPT in September 2009, leading to their report sent to the Ukraine Government on 1 April 2010 and published with the Government's response on 23 November 2011. Then in late November/early December 2011 the CPT returned to Ukraine. They issued a statement of preliminary observations on 6 December 2007. The April 2010 report details allegations of physical ill-treatment of inmates by staff, gross overcrowding, bad ventilation and poor hygiene, cockroaches, mice, rats and decrepit sanitation. The 6 December 2011 statement elicited a reply from the Ukraine Ministry of Justice and both documents were published by the Council of Europe on 12 March 2012. Mr Hardy has this morning referred to passages in the MOJ document. The CPT in their statement said this:

The CPT also in their statement described numerous allegations of physical ill-treatment and remarked on the practice of medical examinations being carried out in the presence of police officers. Then they said this:

It is right to emphasise that during the late 2011 visit the CPT did not, as I understand it, visit any penal colonies as such. Their visits, and therefore the thrust of their report, were limited to the conditions in SIZOs. Professor Bowring also cited at length the US State Department report for 2011, observing at paragraph 42 of his fresh report that to his knowledge every allegation was checked and rechecked. The executive summary of the State Department report commented on the fact that:

Ms Telychenko, the lawyer, also refers to the latest CPT material, describing various forms of ill-treatment. She herself knew of facts suggesting a want of proper food in detention centres and prisons. She refers to investigations into corruption amongst prison guards and to the prevalence of contagious diseases, in particular tuberculosis. Ms Telychenko asserts (paragraph 4) that the appellant "will be sent to the Khmelnytskyi SIZO" to be held "during the court hearing on his new crime, ie escaping justice". And she says this:

Where it is alleged, as here, that a claimant or appellant will suffer Article 3 ill-treatment if he is sent to another state, so that the United Kingdom would violate the Article if the appellant were extradited to that territory, the burden is on the appellant to show strong or substantial grounds for believing that he would face a real risk of treatment contrary to Article 3 if he were so expelled (R(Ullah) v Special Immigration Adjudicator [2004] 2 AC 323, para 24: compare Chahal v United Kingdom 23 EHRR 413). But in assessing whether Article 3 would be violated, the court will adopt what has been called a "relativist" approach. In R(Wellington) v Secretary of State for the Home Department, [2008] UKHL 72, Lord Hoffmann said this:

It was submitted for the appellant in the skeleton that this should be read narrowly and, moreover, was impliedly disapproved by the Strasbourg Court in Harkins and Edwards v The United Kingdom [2012] 55 EHRR 19. However, I understand Mr Josse QC this morning to accept at any rate that the thrust of Lord Hoffmann's observation in the Wellington case remains the law so far as the court's approach to Article 3 in extradition situations is concerned. I should add that it must be obvious that prison conditions will vary from State to State, as will other environments which might give rise to Article 3 questions; and Lord Hoffmann's observation accommodates this circumstance. But some sets of conditions will be so harsh as inevitably to involve Article 3 violations. There is, and can be, no question of any derogation from the Article 3 requirement; nothing in the Wellington case is inconsistent with this. It is also unsurprising, as it seems to me, that by way of evidence the appellant can put forward very little that pertains peculiarly to him. Inevitably the evidence, whether anecdotal or statistical, is about what has happened to others who have been detained in Ukraine; and much of it, again unsurprisingly, is cast in general terms.

I approach the evidence with these following points in mind. First, the country guidance material canvassed in the asylum jurisdiction, notably paragraph 100 of the PS decision, is to be treated with respect as the finding of a specialist tribunal: see Poland v Dytlow [2009] EWHC 1009 (Admin) per Keene LJ at paragraph 24. Compare Tamarevichute v Russia [2008] EWHC 534 (Admin), in which it was accepted that the court could not go behind the country guidance absent a substantial change in the position. Thus the country guidance material may be updated by later evidence, especially expert evidence (see Musikyavicius v The Russian Federation [2011] EWHC 1549 (Admin), per Moses LJ at paragraphs 23 to 26).

From all these authorities, I derive the proposition that the tribunal's observation in PS are to be treated by us as an authoritative starting point in deciding the Article 3 question that arises in this appeal.

Next, as regards assurances given by the requesting state, there is some guidance from the Strasbourg Court in Othman v UK ECHR 8138/09, in which the judgment sets out at paragraph 189 a number of factors to which a national court assessing the quality of assurances given by a foreign State should have regard. These include whether the assurances given are specific or general and vague; whether there is an effective system of protection against torture in the requesting State; and whether it is willing to investigate allegations of torture and to punish those responsible.

With all those matters in mind, I turn to the merits of the appeal. First, there are, with respect, important weaknesses in the District Judge's judgment. I have already indicated that I see little force in her observations at paragraph 17 as to the catch-all effect of the submissions made to her on behalf of the appellant. The fact that the appellant's case may on the particular evidence before the court imply or suggest that any extradition to Ukraine would violate Article 3 is not of itself a reason for rejecting that case. But there are two other points of significance. The first is that the District Judge's finding (paragraph 23) that the document from the Ukraine government agent is persuasive, in contrast (as I understand her) to Professor Bowring's evidence, is to my mind surprising, given that although there is in that document a good deal about what should be, there is a good deal less about what is - in terms of the actual conditions in which prisoners are detained. Facilities and opportunities for inspection and monitoring are described in some detail, as are the relevant and applicable legal and medical regimes. But when it comes to the question of how far the State's aspirations and prescriptions are met in actuality, the document has very little to say. As for this appellant, there is only the bare assertion that his Convention rights, in particular under Article 3, will not be violated.

The other point on the District Judge's judgment is that I fear she barely engages with the nuts and bolts of the material relied on by the appellant. She refers to the PS case but we are in the dark as to what she made of it. Nor, as I read the judgment, does she offer any reason for supposing that the welter of material placed before her and referred to by Professor Bowring is in any sense substantially to be doubted.

What then is the outcome? The starting point must be the PS case: "Imprisonment in the Ukraine is likely to expose a detainee to the real risk of inhuman or degrading ill-treatment that would cross the Article 3 threshold". That effectively applies the approach given by Ullah. It is consistent with the relativism, so far as that goes, as described in the Wellington case. It is the considered conclusion of a specialist tribunal, which on authority we should respect and accept, subject only to later evidence which tends to contradict it; but, in my judgment, there is none. Professor Bowring's fresh report paints a picture which, if anything, displays a deteriorating state of affairs. It is to some extent supported by Ms Telychenko, who also gives evidence as I have said (paragraph 4) that the appellant would be sent to a SIZO, although that would be while proceedings for escaping justice are taken against him, and the appellant says that would violate the specialty rule. I should note that Mr Hardy expressly (and in my view rightly) disavowed any criticism of Professor Bowring.

I am inclined to accept that there is some doubt as to where the appellant would be detained if he were returned. More important, I accept that a great deal of the material relied on concerns SIZOs rather than penal establishments. I also have some regard to the fact that, unlike the District Judge, we have heard no live evidence from Professor Bowring. I accept that Ukraine allows substantial opportunities for the monitoring of prison conditions and that there is substantial engagement with the CPT. But it is noteworthy that, as Professor Bowring points out in his September 2012 report, the latest violations "were found to have occurred despite the fact that the CPT visited Ukraine in February 1998, with a report in 2002; in July 1999, with a report in 2002; in September 2000, with a report in 2002; in November and December 2002, with a report in 2004; a visit in October 2005, with the report in 2007; a visit in December 2007, with a report in 2009; and a visit in September 2009, with a report in 2011". This speaks loud as to the gap between aspiration and achievement, about which the document of the Ukrainian Government report really tells us nothing. The fact is that aside from that document Ukraine has put in no evidence for this court's consideration. It was, of course, open to them to do so.

The appellant does not have to prove that an extraditee sent to any jail whatever in Ukraine would inevitably suffer Article 3 ill-treatment; he has to meet the Ullah test. That, in my judgment, he has done. There are substantial grounds for believing that there is a real risk that on being returned to Ukraine he would be subjected to such ill-treatment. That is the case, whatever the position may be in relation to other potential extraditees in other cases. I have reached this conclusion on the evidence before this court. I consider that the appellant's case was made out on the material before the District Judge; all the more so given the fresh evidence. I would accordingly allow the appeal in terms both of section 104(3) and 104(4).

In view of Ms Telychenko's evidence, the appellant also submitted in writing that the Ukraine prosecution authorities would violate the specialty rule if he were overturned. However, this morning Mr Josse accepted in terms, and in my view rightly, that it was, as he put it, extremely unlikely that the specialty appeal would succeed if it stood alone. It is perhaps in those circumstances not the court's duty to say any more about it save to note that there would be substantial difficulties in the way of that argument were it pressed before us. However, as I have said, for the reasons I have given, I would allow this appeal upon the Article 3 issue.

MR JUSTICE HICKINBOTTOM: I agree. I would only emphasise this. PS was heard in the Asylum and Immigration Tribunal, by a constitution specifically assigned to determine whether prison conditions in Ukraine are such as to expose a detainee to a real risk of inhuman or degrading ill treatment in breach of Article 3. Their conclusion at paragraph 100, that they were, was made on all of the evidence then available. That finding superseded earlier guidance in TV (Ukraine Prison Conditions) Ukraine [2004] UKAIT 00222. The 2006 country guidance in PS has not been superseded: it is still in place. Of course, the tribunal's finding is not formally binding on this court; but the tribunal (now the Immigration and Asylum Chamber of the Upper Tribunal) is a specialist tribunal particularly expert and experienced in this area, and in making findings and giving guidance in respect of conditions that apply in other countries. In my judgment, such country guidance should usually be determinative of the specific issues it addresses, unless there is good reason to depart from it.

For the reasons given by my Lord, I remain entirely unconvinced that, on the evidence before us, there is any good reason to depart from the findings made by the tribunal in 2006. Consequently, I too am satisfied that there are substantial grounds for believing that there is a real risk of the claimant being subject to treatment which violates Article 3, and therefore that this appeal should be allowed.

LORD JUSTICE LAWS: I think it is our duty under the statute, having allowed the appeal, to order the appellant's discharge. Is that right?

MR HARDY: Would your Lordship bear with me a moment.

LORD JUSTICE LAWS: I am just speaking from memory.

MR HARDY: It is section 104, your Lordship. Would your Lordship forgive me.

MR JOSSE: We are checking as well. Mr Keith is. Subsection 5: "If the court allows the appeal, it must (a) order the person's discharge, and (b) quash the order for his extradition".

LORD JUSTICE LAWS: Thank you. We make those orders.

MR HARDY: While I am on my feet, my Lord, no doubt your Lordship will review the transcript of the ex tempore judgments that your Lordship's have both given, it may be a minor point but the country actually is not the Ukraine, it is Ukraine.

LORD JUSTICE LAWS: Since I was ac hild I have always referred to it as the Ukraine. Delete the definite article.

MR HARDY: It is no more the Ukraine, my Lord, than it is the Germany or the Poland.

LORD JUSTICE LAWS: There are always exceptions when it coms to language though.

MR JOSSE: On that light note, I must observe that Mr Hardy and I were in a different case in the Magistrates' Court involving Ukraine, which he won, and made exactly the same observation to that District Judge in question.

LORD JUSTICE LAWS: Well, there we are.

MR HARDY: My Lord, may I just mention, to assure my learned friends and inform the court, that the court will not be troubled by this again, there will be no application to certify a point.

LORD JUSTICE LAWS: Thank you for giving us that indication at this stage, Mr Hardy. We are indebted to counsel for their submissions, in writing, of course, as well as here this morning.