Ragul & Anor v The Government of Azerbaijan

On 18 March 2010 the Ministry of National Security of the Republic of Azerbaijan made a request for the extradition of the appellants, Kishor Ragul [“KR”] and Thanikasalam Nadarajah [“TN”] to stand trial for fraud. The alleged offences occurred between 29 April 2008 and 6 May 2008 in Baku. It is suggested that the appellants used cloned credit cards to extract a total of about £27,000 from cash machines. A third person was sought but he is not in the United Kingdom. He is in France.

Azerbaijan is a Category 2 territory for the purposes of the Extradition Act 2003 [“the 2003 Act”]. Pursuant to section 84(7) of that Act the Secretary of State has designated Azerbaijan as a territory which is not required to establish a prima facie case in support of an extradition request. Azerbaijan is a state party to the European Convention on Human Rights. It is subject to the obligations imposed by the ECHR and in particular, as material to these appeals, those found in Article 3, 5, 6 and 8.

The Secretary of State certified that the requests were in order. In due course the appellants were arrested and taken before the City of Westminster Magistrates’ Court where on 12 September and 11 November 2011 a contested extradition hearing took place before District Judge Alison Rose. She gave her decision on 22 December 2011. The judge concluded that the extradition of the appellants would not give rise to any violation of the ECHR. KR had argued that his removal would put the United Kingdom in breach of articles 3, 5, 6 and 8 ECHR. The breach of article 3 would arise because there were substantial grounds for believing that he would be at real risk of violence at the hands of the Azerbaijani authorities, because prison conditions were such in Azerbaijan that an inevitable risk of ill-treatment arose and because of inadequate medical facilities in prisons and detention centres. KR adduced evidence that he suffered from paranoid psychosis. The breach of article 5 would arise because of the possibility of pre-trial detention lasting up to 18 months. The breach of article 6 would result from a general lack of independence of the judiciary in Azerbaijan, inadequacies in the trial process and the possibility that no Tamil interpreter would be made available. The article 8 claim was based upon the lack of medical facilities in detention facilities. TN advanced the same arguments under articles 3, 5 and 6. In support of his article 8 claim he relied upon his family situation. He has a wife and three teenage children in the United Kingdom and some responsibility for caring for his mother. As a result of rejecting these arguments, the District Judge sent the cases to the Secretary of State pursuant to section 87(3) of the 2003 Act. On 1 February 2012 the Secretary of State ordered the extradition of the appellants to Azerbaijan, pursuant to section 93(4). The appellants then appealed against the decision of the judge pursuant to section 103(1) of the 2003 Act.

Both appellants sought an adjournment of the appeal on the basis that TN had recently been arrested in connection with allegations of fraud and is being prosecuted in England. A Plea and Case Management Hearing was listed for 28 May 2013. Mr Menon QC indicated that it was likely that TN would plead guilty and that, although an immediate custodial sentence could not be excluded as a possibility, a community order of some sort was expected. He submitted that although there is no explicit requirement in the 2003 Act in these circumstances that extradition should await the outcome of criminal proceedings (and possibly sentence), the general scheme of the Act suggested that domestic criminal proceedings should take priority. He submitted that it was in the interests of justice to adjourn these appeals; for TN because of the prosecution and for KR because it would be unfair to contemplate the possibility of his being extradited alone and then having to wait in custody in Azerbaijan for TN to follow. We refused the application for an adjournment.

The 2003 Act contains a number of provisions relating to both Part 1 and Part 2 territories which have the effect of interrupting the extradition process in the event that the requested person is prosecuted in the United Kingdom. So far as Part 2 territories are concerned, section 76A requires the District Judge to adjourn the extradition hearing until the domestic criminal proceedings have been disposed of if he is informed before the extradition hearing has begun that the requested person has been charged with an offence in the United Kingdom. Section 88 imposes a similar obligation if the District Judge is so informed during the extradition hearing itself. If the requested person is charged with an offence in the United Kingdom after the District Judge has sent a Part 2 extradition case to the Secretary of State, Section 97 requires the Secretary of State to defer making a decision until those proceedings are disposed of. There is no provision which requires the High Court to postpone an appeal in the event that the requested person is charged with an offence in the United Kingdom after the Secretary of State has ordered his extradition. Sections 8A and 22 are the analogues of sections 76A and 88 in Part 1 cases.

Sections 8A and 76A, governing the position if the District Judge is informed of a charge before the extradition proceedings have begun, were introduced to remedy an anomaly identified by this court in The Governor of Wandsworth Prison v. Antanas Kinderis and others [2007] EWHC 998 (Admin). Mr Kinderis had consented to his extradition before the extradition hearing had begun. He was being prosecuted in the United Kingdom for very serious offences. The statutory provisions postponing the extradition process as originally enacted only applied if the District Judge was informed of the criminal proceedings during the extradition hearing. Because of his consent to extradition there would never be an extradition hearing. Before the introduction by amendment of section 8A there was no requirement to defer his extradition because there was no extradition hearing. The Governor of Wandsworth Prison found himself with two conflicting orders of different courts. The first was to surrender Mr Kinderis for extradition; the second to produce him to the Crown Court. This court considered the power to defer extradition found in section 47(4) of the 2003 Act following the making of the extradition order if there was reasonable cause for the delay. It rejected a submission that the subsection could be construed to permit delaying extradition in the circumstances which had arisen. The court concluded that the ‘reasonable cause for delay’ provision was directed to circumstances akin to force majeur. It could not be used to determine the ‘strategic ordering’ of two sets of proceedings, about which the 2003 Act was silent in the circumstances which had arisen, but otherwise had made provision [Laws LJ at para 31]. The extradition took precedence.

When Parliament revisited the circumstances in which extradition should be put on hold because of a domestic prosecution, it did not introduce provisions which dealt with the precedence of proceedings after the District Judge (in Part 1 cases) or the Secretary of State (in Part 2 cases) had ordered extradition or when the High Court is seized of an appeal.

Mr Menon submitted that despite the legislative silence, the scheme of the 2003 Act was to accord precedence to domestic criminal proceedings. Mr Caldwell submitted that no such intention could be imputed to Parliament but did not go so far as to submit that the reasoning in Kinderis required the court to ignore the domestic criminal proceedings in considering whether, in the interests of justice, to extend the period for beginning to hear the appeal.

Rules of Court made under Section 113 of the 2003 Act provide in Part 2 cases a time limit of 76 days within which an appeal hearing must commence after the filing of the notice of appeal. This provision reflects a common theme of the 2003 Act which was to reduce delay in extradition proceedings. The time limit may be extended from time to time if it is in the interests of justice to do so: section 113(3). The notice of appeal in these appeals was filed on 16 January 2012. The appeals had been listed for hearing in November 2012 but were adjourned because TN attempted to kill himself on the eve of the hearing.

At the hearing of these appeals we extended the relevant period for them to begin to the day of the hearing.

So the statutory peg upon which Mr Menon sought to hang the application for an adjournment was section 113(3). It was in the interests of justice to extend the time for the appeals to commence. I accept that the term ‘interests of justice’ in section 113(3) is wide enough to enable this court to delay the start of an extradition appeal pending the resolution of domestic criminal proceedings which have arisen after the Secretary of State has made her order in an appropriate case. There is no straightjacket of the sort identified in Kinderis when considering section 47. However, there can be no presumption that such a course will inevitably be appropriate. It is not difficult, for example, to imagine circumstances in which a requested person wanted for serious offences in a category 2 territory might seek to manipulate the proceedings if that were so. In these appeals the offences in respect of which TN is before the Crown Court are not very serious. We are told he admits them and, as a man of hitherto good character, is likely to receive a non-custodial sentence. The offences for which he is wanted in Azerbaijan date back to 2008 and, as the brief chronology of the extradition proceedings set out above indicates, there has been significant delay since the extradition request was made. Additionally, the recent psychiatric evidence adduced by TN suggests that the slow progress towards the resolution of these proceedings has been an important factor in his mental suffering.

The combination of circumstances to which I have referred led us to conclude that it was not in the interests of justice to adjourn the appeals.

Both appellants contend that the District Judge should have accepted the human rights arguments they advanced in November 2011. They have produced up to date reports from the US State Department and human rights organisations to demonstrate the current position in Azerbaijan. In addition, TN relies upon the psychiatric evidence to which I have referred in support of a ground of appeal pursuant to section 91 of the 2003 Act that it would be oppressive to extradite him. No section 91 argument was advanced below. There is no up to date psychiatric evidence relating to KR. Although Mr Menon did not did not abandon reliance on his underlying psychiatric condition as part of his article 8 claim, it receded into the background of the submissions.

In Soering v. United Kingdom (1989) 11 EHRR 439 the Strasbourg Court held that a state party to the ECHR would be guilty of a violation of article 3 on removal of a requested person pursuant to an extradition request if there were substantial grounds for believing that there was a real risk that he would suffer ill-treatment proscribed by article 3 in the requesting state. Lord Bingham summarised the position in relation to article 3 and other provisions of the Convention in R (Ullah) v. Special Adjudicator [2004] 2 AC 323 at para 24:

“Whilst the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment … Where reliance is placed on article 6 it must be shown that a person … risks suffering a flagrant denial of a fair trial in the receiving state … Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on article 2, 5 and 6 before the Strasbourg Court highlights the difficulty of meeting the stringent test which the court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown.”

The Strasbourg Court has said that the word ‘flagrant’ in the context of article 6 is

“… intended to convey a breach of the principles of a fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.” (Mamatkulov v. Turkey (2005) 41 EHRR 494)

In R (Wellington) v. Secretary of State for the Home Department [2009] 1 AC 335 the House of Lords subjected the decision of the Strasbourg Court in Soering to close analysis and concluded that a ‘relativist’ approach should be adopted to article 3 in extradition cases, outside the context of torture itself. Lord Hoffman dealt with the issue in detail. Lady Hale and Lord Carswell agreed with him. He noted the submission that had been advanced by the United Kingdom Government in Soering to the effect that it should be held responsible for what occurred domestically but not for what might happen in the United States of America after lawful extradition:

“21.

… The court accepted (in paragraph 86) that the engagement undertaken by a Contracting State was confined to securing Convention rights within its own jurisdiction and that it could not require a Contracting State, notwithstanding its extradition obligations, not to surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention:

"Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular." (emphasis added)

22.

I have emphasised the last few words of this passage because they make it clear that in cases of extradition, article 3 does not apply as if the extraditing State were simply responsible for any punishment likely to be inflicted in the receiving state. It applies only in a modified form which takes into account the desirability of arrangements for extradition. The form in which article 3 does apply must be gathered from the rest of the judgment and subsequent jurisprudence.

23.

In paragraph 88 the court distinguished between torture and other "inhuman or degrading treatment". Torture attracted such abhorrence that it would not be compatible with the values of the Convention for a Contracting State knowingly to surrender a fugitive to another State if there were substantial grounds for believing that he was in danger of being subjected to torture, "however heinous the crime allegedly committed". The position in relation to inhuman or degrading treatment is more complicated. What amounts to such treatment depends upon "all the circumstances of the case" paragraph 89. The court went on:

"Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases."

24.

The passage makes it clear that the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the "minimum level of severity" which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.”

Lord Hoffman went on in para 27 of his opinion to give as an example the finding of the Court of Session that ‘slopping out’ in Scottish prisons may infringe article 3 (a conclusion upon which he reserved his view) but noting that if correct it might prevent extradition to many countries poorer than Scotland where many people, even not in prison, have to make do without flushing lavatories.

The Strasbourg Court did not approve the ‘relativist’ approach: see Harkins and Edwards v. United Kingdom App. Nos 9146/07 and 32650/07 at paras 119-128. However, it added a series of caveats to its conclusion which in my view means there is little or no practical difference between its approach and that of the House of Lords in Wellington:

“129.

… the Court would underline that it agrees with Lord Brown’s observation in Wellington that the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting State. As Lord Brown observed, this Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States (see, as a recent authority, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011). This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case. For example, a Contracting State’s negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the Court to find a violation of Article 3 but such violations have not been so readily established in the extra-territorial context (compare the denial of prompt and appropriate medical treatment for HIV/AIDS in Aleksanyan v. Russia, no. 46468/06, §§ 145–158, 22 December 2008 with N.v. the United Kingdom [GC], no. 26565/05, 27 May 2008).

130.

Equally, in the context of ill-treatment of prisoners, the following factors, among others, have been decisive in the Court’s conclusion that there has been a violation of Article 3:

- the presence of premeditation (Ireland v. the United Kingdom, cited above, § 167);

- that the measure may have been calculated to break the applicant’s resistance or will (ibid, § 167; Ilaşcu and Others v. Moldova and Russia[GC], no. 48787/99, § 446, ECHR 2004-VII);

- an intention to debase or humiliate an applicant, or, if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority (Jalloh v. Germany [GC], no. 54810/00, § 82, ECHR 2006-IX; Peers v. Greece, no. 28524/95, § 75, ECHR 2001-III);

- the absence of any specific justification for the measure imposed (Van der Ven v. the Netherlands,no. 50901/99, §§ 61-62, ECHR 2003-II; Iwańczuk v. Poland, no. 25196/94, § 58, 15 November 2001);

- the arbitrary punitive nature of the measure (see Yankov, cited above, § 117);

- the length of time for which the measure was imposed (Ireland v. the United Kingdom, cited above, § 92); and

- the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (Mathew v. the Netherlands, no. 24919/03, §§ 197-205, ECHR 2005-IX).

The Court would observe that all of these elements depend closely upon the facts of the case and so will not be readily established prospectively in an extradition or expulsion context.

131.

Finally, the Court reiterates that, as was observed by Lord Brown, it has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3 of the Convention. It has only rarely reached such a conclusion since adopting the Chahaljudgment (see Saadi, cited above § 142). The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law.”

This last observation, directed as it was to removals to non-ECHR countries, applies with equal force to removals by one state party to the Convention to another. In the absence of proof to the contrary, there is an assumption that a state party to the ECHR will comply with its obligations under the Convention when an individual is removed to it: see, for example, MSS v. Belgium and Greece App. No. 30696/09 at para 343. That is reflected in the approach of the domestic courts. In Gomes and Goodyear v. The Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 at para 35 Lord Brown of Eaton-under-Heywood, giving the considered opinion of the committee, observed in the context of a challenge to extradition on a basis relating to a fair trial:

“Council of Europe countries in our view present no problem. All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial.”

See also Krolick and others v. Several Judicial Authorities of Poland [2012] EWHC 2357 (Admin) at paras 3 - 7 and Rot v. District Court of Lubin, Poland [2010] EWHC 1820 (Admin) at paras 10 -11.

Similarly, in Sorokins v. Latvia [2010] EWHC 1962 (Admin), a case where the appellant relied upon reports from the US State Department critical of prison conditions in Latvia, Kenneth Parker J said:

“9.

The relevant report … states that prisons in Latvia remain poor and over crowded. That in itself would not be sufficient to raise real concerns under Article 3 where the threshold remains relatively high. The report also refers to a further report on a 2007 visit by the Council of Europe's Committee for the prevention of torture which made more specific criticisms of prison conditions in respect, for example, of health treatment, security of prisoners, diet, sanitation and exercise. These criticisms standing alone would give rise to some concern.

10.

However, first, that report expressly stated that the prison conditions "could in some cases be considered inhuman and degrading". That would strongly suggest that even in 2007 prisons in Latvia did not systematically fall below the standards required by Article 3, even if there were sporadic failures. Secondly, that report was in 2007. The government of Latvia acknowledged that prison conditions were poor and were making efforts to improve facilities. We do not have up-to-date material but we should not assume that as a member of the Council of Europe and bound by the ECHR, Latvia has not continued it efforts to improve prison conditions. In this context it is notable that the government has generally permitted independent monitoring of prisons by international and local human rights groups and such willingness to submit to independent scrutiny gives ground for believing that the government is likely to continue its effort for improvement.

11.

It is also notable that Latvia had an ombudsman with power to deal with complaints in respect of prison conditions and treatment and has, according to the report relied upon taken steps to investigate a number of these complaints.

12.

Finally, as I have noted, Latvia is a member of the Council of Europe and is obliged take steps to comply with Article 3 of the ECHR in respect of prison conditions.”

In Agius v. Malta [2011] EWHC 759 (Admin) Sullivan LJ noted that the assumption that a state party to the ECHR would abide by its obligations was

“capable of being rebutted by clear and cogent evidence, which establishes that, in any particular case, extradition would not be compatible with the defendant’s Convention rights.”

The focus in these appeals must be on what will happen to the appellants if extradited to Azerbaijan. The arguments advanced by Mr Menon with respect to articles 3, 5 and 6 ECHR do not depend upon any feature of the appellants’ case or their characteristics (save for the need for a Tamil interpreter). His submission is to the effect that nobody can be extradited to Azerbaijan compatibly with the ECHR because of the poor state of prison conditions, the potential length of pre-trial detention and deficiencies in the trial process. In fact, these appellants do not share features of individuals in respect of whom the human rights reports express particular concern, namely political opponents of the Azerbaijani government, pro-democracy demonstrators and life or high security prisoners. The fact that the appellants’ concerns are generic is not fatal to arguments based upon ECHR rights. In Lutsyuk v. Government of Ukraine [2013] EWHC 189 (Admin) the conclusion of this court was that nobody could presently be extradited to the Ukraine because of the very poor conditions in its prisons. That was because in 2006 the Asylum and Immigration Tribunal had concluded, after an exhaustive review of all the available material that, without more, imprisonment in the Ukraine was likely to expose a person to a real risk of inhuman or degrading treatment. The more recent material before the court suggested that, far from matters having improved in the interval, they had worsened. Although Mr Menon placed considerable reliance on the factual conclusion of the court in that case, the conditions described in the judgment of Laws LJ were very much worse than reported in the material placed before us relating to Azerbaijan.

It is sufficient to note regarding article 8 and respect for family life that the effect of the decisions of the Supreme Court in Norris v. Government of the United States of America [2010] 2 AC 487 and HH v. Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 is to require a requested person to demonstrate factually a very strong case before the article 8 balance would be struck by refusing extradition. The Strasbourg Court has used the language of ‘exceptional circumstances’, as did Lord Phillips in Norris, not as a legal test but as a recognition of the very high factual hurdle that a requested person would have to overcome to demonstrate that his and his family’s article 8 interests should prevent extradition: see for example, King v. United Kingdom App. No 9742/07 at para 29.

The approach to the question whether extradition would be oppressive for the purposes of section 91 of the 2003 Act on the grounds that there is a real risk that the requested person will attempt to kill himself and succeed has been authoritatively considered in this court in Turner v. Government of the USA [2012] 2426 (Admin) and Polish Judicial Authority v. Wolkowicz [2013] EWHC 102 (Admin). In paragraph 28 of his judgment in Turner Aikens LJ summarised the propositions which he derived from a series of earlier decisions:

“(1)

The court has to form an overall judgment on the facts of the particular case.

(2)

A high threshold had to be reached in order to satisfy the court that a requested person’s physical or mental condition is such that it would be unjust or oppressive to extradite him.

(3)

The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a “substantial risk that [the appellant] will commit suicide”. The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression.

(4)

The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.

(5)

On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken sufficiently great to result in a finding of oppression?

(6)

Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person’s mental condition and the risk of suicide?

(7)

There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind.”

In Wolkowicz Sir John Thomas PQBD, having cited this passage, added:

“The key issue, as is apparent from propositions (3), (5) and (6), will in almost every case be the measures that are in place to prevent any attempt at suicide by a requested person with a mental illness being successful. As Mr Watson correctly submitted on behalf of the respondent judicial authorities, it is helpful to examine the measures in relation to three stages:

i)

First, the position whilst the requested person is being held in custody in the United Kingdom is clear. As Jackson LJ observed in Mazurkiewicz at paragraph 45, a person does not escape a sentence of imprisonment in the UK simply by pointing to the high risk of suicide. The court relies on the Executive branch of the state to implement measures to care for the prisoner under the arrangements explained in R v Quazi [2010] EWCA Crim 2759, [2011] Crim LR 159.”

ii)

Second, when the requested person is being transferred to the requesting state arrangements are made by the Serious Organise Crime Agency (SOCA) with the authorities of the requesting state to ensure that during the transfer proper arrangements are in place to prevent suicide in appropriate cases. As Collins J helpfully mentioned in Griffin at paragraph 52, steps should ordinarily be taken in such cases to ensure that no attempt is made at suicide and proper preventative measures are in place. Medical records should be sent with the requested person and delivered to those who will have custody during transfer and in subsequent detention.

(iii)

Third when the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary: see the authorities set out at paragraphs 3-7 of Krolick and others v Several Judicial Authorities of Poland [2012] EWHC 2357 and paragraphs 10-11 of Rot. In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore be sufficient to rely on the presumption.

It is therefore only in a very rare case that a requested person will be likely to establish that measures to prevent a substantial risk of suicide will not be effective.”

I would add to the second of those points that in cases where a British national is being extradited and there are concerns relating to suicide risk, the British mission in the receiving state should be informed of the circumstances in advance of the requested person’s arrival so that suitable consular intervention can be organised to ensure that all concerned take the necessary measures to safeguard the individual.

The District Judge considered the available reports upon conditions in Azerbaijan. She had the advantage of expert evidence, both in writing and orally, from Professor William Bowring of Birkbeck College, University of London. He is an expert in the legal and penal systems in Russia and many of the states that gained independence on the disintegration of the Soviet Union. There was, in addition, written and oral medical evidence relating to KR.

It is not suggested that the District Judge misdirected herself on the relevant legal principles, rather that she should have been driven to conclusions favourable to the appellants given the weight of the evidence. The District Judge concluded that the deficiencies in detention facilities identified in the reports did not reach the threshold of supporting a generalised article 3 claim. She accepted that there was a new detention facility in Baku which complied with all international standards and that is where the appellants would be held. The reports noted that in Azerbaijan that there might be pre-trial detention of ‘up to 18 months’. However, that period included time during which the alleged crimes were subject to investigation (which was complete in this case) but in any event the Republic of Azerbaijan had said in a document produced before the court that the appellants would be tried within the term specified in their law. That is a period of three months. The threshold for article 5 purposes in a removal case had not been reached. She arrived at the same conclusion relating to article 6, in particular because of evidence of efforts being made by the authorities to deal with deficiencies in the judicial system, coupled with an assurance from the authorities that the appellants would be able to choose their own lawyers who would be provided free of charge. She noted that Professor Bowring has said that whilst it could not be said with confidence that the Azerbaijani courts are able to deliver a fair trial, there were no factors relating to the defendants which indicated their trials would be unfair. In dismissing the article 8 claims, the District Judge concluded that appropriate medical treatment would be provided for KR and that the impact on TN’s family fell well short of the circumstances envisaged to prevent removal.

TN has asthma and type 2 diabetes. The psychiatric evidence before the District Judge relating to KR suggested that he suffered from a paranoid psychosis which was being successfully treated with medication. In respect of both appellants it was suggested that they would not be given adequate medical treatment in Azerbaijan, quite apart from being exposed to generally poor prison conditions.

The most recent US State Department report (for 2012) noted allegations of torture and abuse in police and military custody together with evidence of harsh and sometimes life-threatening prison conditions (Executive Summary para 3). The detail included that 141 persons were reported by domestic human rights organisations to have been abused in custody in 2012 by security forces despite recent legislation providing for the ethical treatment of detainees. However, “reports indicated that most mistreatment took place whilst detainees were in police stations and that abuse ceased once detainees moved to pre-trial detention facilities”. I pause here to observe that in the psychiatric report produced on behalf of TN, his main concern appears to be that he may be tortured in custody in Azerbaijan. The human rights reports, coupled with the evidence of Professor Bowring suggest that there is no identifiable risk of someone in TN’s position being at risk of torture. The same is true of KR. In a section dealing expressly with “Prison and Detention Centre Conditions”, the authors of the State Department report observed:

“Most prisoners experienced harsh detention facilities, some of which were life threatening. While the government continued to construct new facilities, it housed most prisoners in Soviet-era facilities that did not meet international standards. Overcrowding, inadequate nutrition, deficient heating and ventilation, and poor medical care combined to make the spread of infectious diseases a problem in some facilities.”

The prison population numbered about 20,000 of which 13.5% were in pre-trial detention. The report was highly critical of conditions in some facilities, especially the maximum security Qobustan Prison (elsewhere in the various reports spelt Gorbustan). There is no suggestion that the appellants would be detained in that prison. A total of three prisoners had died in pre-trial detention facilities, one as a result of suicide and the others from natural causes. Tuberculosis remained a serious problem although the number of sufferers in the prison estate was falling. Prison visits were permitted by international and local human rights groups including the International Committee of the Red Cross [“ICRC”], the Council of Europe’s Committee for the prevention of Torture [“CPT”], the European Union and local groups. There was a joint government and human rights “Public Committee” able to gain access on notice to prisons and an ombudsman to deal with complaints. The report noted that the ICRC has secured an undertaking from the Azerbaijani Government to improve detention conditions by building new facilities and modernising existing ones. Three new detention facilities had been opened during 2012 and 18 renovated. 19 further facilities were being improved and there were large-scale renovations of six prisons underway. The ICRC-initiated campaign to fight tuberculosis was considered a model for the region.

Human Rights Watch noted 136 allegations of ill-treatment in custody. The French International Federation for Human Rights described conditions of detention as “extremely worrying” particularly for life prisoners. It described conditions generally as overcrowded and harsh.

Professor Bowring produced two reports in advance of the hearing before the District Judge. His section on prison conditions quoted extensively from an earlier State Department report which contained a very similar overview as already set out. It noted that the Soviet-era prisons did not generally meet international standards but there was a new temporary detention facility in Baku for those under investigation which did. There were poor conditions in the high security prison at Qobustan. A Council of Europe monitoring committee had published a report in June 2008. That too suggested that prison conditions were generally harsh but that there were infrastructure improvements underway. It expressed concern about Qobustan and one other detention facility. Professor Bowring concluded that:

“Prison conditions in Azerbaijan remain highly unsatisfactory. … That said the report of the … CPT as to conditions found in December 2008, published in November 2009, noted a number of improvements. Although there is a significant risk of ill-treatment in detention, it cannot be said for certain that …article 3 ECHR would be violated.”

The CPT inspection took place in December 2008. Its report commended the improvements being made to the prison estate. Its focus was on Qobustan and detention in hospital facilities. At Qobustan, healthcare staffing levels were adequate, although there was real concern about psychiatric provision. In its response to the report, the Azerbaijani government referred to its development programme for 2009 to 2013, approved by the President, which included improvements to detention conditions and infrastructure. It gave detail about improvements in the provision of medical care in the prison estate and increases in number of staff. It explained that in new facilities there would be dedicated healthcare accommodation. Both the ICRC and World Heath Organisation had commented favourably on the improvements.

In 2006 Professor Bowring had visited a British prisoner being held in Azerbaijan on charges relating to Islamist terrorism. The prisoner had regular contact with his lawyer, who was highly respected and chosen by him. He was being held in the remand centre in Baku and had no complaints about his treatment.

Professor Bowring also commented upon medical provision for the appellant TN. The international reports had referred to particular problems with healthcare in the Azerbaijani prison estate, but he thought that treatment for diabetes and asthma would be provided. He noted that “this is especially the case since as a British citizen he would be entitled to regular visits and monitoring by British Embassy staff”. He referred to the decision of the Strasbourg Court in Hummatov v. Azerbaijan (App. Nos. 9852/03 and 13413/04; judgment 29.11.07). The Convention entered into force in Azerbaijan in 2002, it having been ratified on 25 January 2001. The Court was critical of the medical facilities accorded to the applicant between 1996 and the end of 2003 but, as Professor Bowring recognised, its finding were historical. In his oral evidence before the District Judge Professor Bowring accepted the improvement in prison conditions but added:

“In general, the position remains that Azerbaijani prisons are not good places to be. The depressing feature of the CPT report is that improvements are not as great as expected.”

The Azerbaijani prosecuting authorities were asked about the conditions in which TN would be detained if not granted bail. They indicated that he would be kept in the detention facility. The focus of attention, both before the District Judge and this court, has been on pre-trial detention facilities because Professor Bowring mentioned an agreement between the United Kingdom and Azerbaijan which would enable the appellants to serve here any sentence following conviction. Although Professor Bowring did not explain the detail, he is likely to have had in mind the Strasbourg Convention on the Transfer of Sentenced Prisoners.

It is clear from the totality of the evidence that was before the District Judge and the additional evidence before us that the prison conditions inherited by the Republic of Azerbaijan from the Soviet Union were of poor quality and that the medical facilities provided to prisoners were sub-standard. The general position has substantially improved since Azerbaijan became a state party to the Convention and continues to improve. The District Judge concluded that the appellants would be located in the detention facility in Baku which was described as conforming to all international standards. I infer that this is the facility which Professor Bowring visited in 2006. If that conclusion was correct, and there is no basis to suppose that it was not right, then there is no reason whatsoever to suppose that the appellants would be subjected to poor prison conditions at all whilst on remand. Even allowing for the possibility that the appellants may find themselves detained in another facility, the evidence establishes no more than that within the Azerbaijani prison estate there is a diminishing number of establishments where the conditions of detention are ‘harsh’. I have already recorded that there is no feature of the appellants’ case, or any personal characteristic of the appellants, which suggests that they are vulnerable to particular ill-treatment. Professor Bowring’s conclusion that appropriate medical treatment would be provided to TN, particularly because of the potential oversight of the British Embassy, holds good for KR also. It accords with the obligations recognised by the Government of Azerbaijan and referred to in their response to the CPT report. The prison system is the subject of increasing oversight within Azerbaijan, by human rights organisations (domestic and international) and the Council of Europe. There has been a more recent visit by the CPT but its report and the Government’s response have not yet been published. The picture that emerges from the material is that the accession to the Convention has had a positive impact on prison conditions in Azerbaijan with, in particular, considerable improvements being made in the last five years. It is also of note that none of the features identified by the Strasbourg Court in para 130 of its judgment in Harkins and Edwards (see para 17 above) is present. In my judgment, there is no clear and cogent evidence that the Azerbaijani authorities would not honour their obligations under article 3 of the Convention.

The submission is that nobody can be extradited to Azerbaijan because of the state of its detention facilities. In my judgment, the material relied upon in support does not establish strong grounds for believing that extraditees, including these appellants, would face a real risk of being subjected to inhuman or degrading treatment on account of the general conditions of detention or the medical facilities attached to them.

The document from the Azerbaijani authorities to which I have referred states that a warrant for the arrest of TN was issued by a District Court in Baku on 21 July 2009. Pursuant to that warrant if he is extradited he will be detained. The position is likely to be the same for KR. That document does not deal with the possibility of bail (no question was asked about it). The State Department reports suggest that there is no formal bail system although conditional release is sometimes allowed. Professor Bowring quoted a passage from the Council of Europe report of June 2008 which said:

“142.

Another problem is the lengthy pre-trial detention of up to 18 months. The Prosecutor General regularly extends the initial three month pre-trial detention period in successive detention periods of several months until the end of the investigation …inappropriately prolonging the pre-trial.”

The Azerbaijani authorities were asked a question about this, and stated that TN’s case would be presented to the first instance court within the time specified in the criminal code, which is accepted to be three months. The District Judge was satisfied that the lengthy period of pre-trial detention of 18 months would not arise in this case. That was on the strength of that assurance and also because in this case, as was submitted on behalf of the Government, the investigation has been completed and the hypothetical circumstances referred to in the report should not arise. That was an inevitable conclusion. Even if there were a possibility of pre-trial detention of 18 months I would not conclude that the high threshold for the purposes of article 5 in a removal case had been met. The paragraph from the CPT report cited above provides an inadequate basis for suggesting that this state party to the Convention operates a system of pre-trial detention which denies the essence of the right guaranteed by article 5.

The appellants’ criticisms of the Azerbaijani criminal justice system rely upon human rights reports, especially from the State Department, which Mr Menon submits paint a picture which risks any defendant in criminal proceedings suffering a flagrant denial of a fair trial. He points to reports of evidence of widespread corruption within the judiciary, who are said not to be independent of the executive. There is evidence that verdicts are not related to the evidence and are not necessarily read in public. There are criticisms that judges are supportive of the prosecution. Discrete points were advanced relating to suggestions that the appellants would be unable to select competent lawyers at public expense, or be provided with Tamil interpreters if they were necessary. They have fallen away as a result of the evidence, which does not provide support for them. The material provided by the Azerbaijani Government and Professor Bowring’s experience suggests that lawyers will be provided free of charge to represent the appellants, although he expressed doubts about whether a competent lawyer would be found. He concluded that interpreters would be provided because of the oversight of the British Embassy.

The reports paint what Professor Bowring described as “a highly unsatisfactory state of compliance” with article 6 obligations in Azerbaijan. His overall conclusion was:

“The Azeri judicial system, in common with other judicial systems of the post-Soviet world, suffers grave difficulties concerning corruption and lack of independence. However, problems of lack of independence and political interference have been most noted in political cases, and the [appellants’] case is in no way political. Nevertheless, like all accused in the criminal justice system, [they] will suffer from all the defects pointed out by the USSD Report.”

He added that in practice it is impossible for the defence to adduce forensic or other independent expert evidence in a trial. This, too, is a common feature of post-Soviet systems. The appellants rely upon this factor because they believe that the case against them is based (at least in substantial part) on what was found on the computer of their co-accused (now in France) which was left behind in Azerbaijan. They would wish to check any incriminating evidence said to be present on the computer, and more generally explore with expert evidence the suggestion that cloned cards were used.

Professor Bowring’s reports suggest that the quality of judicial endeavour and of lawyers appearing in Azerbaijani courts is improving, something commented upon in 2008 by the Council of Europe report. That speaks of close co-operation with the Council of Europe in improving judicial independence. A report from the European Union published in May 2010 was to similar effect.

The starting point in considering the issue raised under article 6 is that the courts of Azerbaijan are obliged by their domestic law and by international law to accord to those tried for criminal offences all of the rights guaranteed by article 6 ECHR. The question is whether the reports on which the appellants rely provide clear and cogent evidence which establishes that in their cases there is a real risk that the very essence of a fair trial will be destroyed. I am unable conclude that the generalised reports establish that proposition. There are deep shortcomings identified in the reports relating to the operation of the criminal justice system in Azerbaijan. Yet they make clear that the government is working to improve the position. Trials are open to the public and to monitoring by interested bodies. Mechanisms exist for raising concerns about article 6 issues, as is evidenced by the reference in the reports to applications based upon article 6 reaching the Strasbourg Court. The appellants do not fall within any category about which particular concern has been expressed. They are not at increased risk on account of their nationality or ethnicity. There are no political overtones. The fact, if it be a fact, that the appellants will be unable to adduce their own expert evidence is not a sufficient basis for suggesting that the essence of the safeguards secured by article 6 will be destroyed. The critical question, on the hypothetical assumption that incriminating expert evidence were deployed against them, is how the court would approach it.

Importantly, as British nationals surrendered for trial pursuant to an extradition request, they will benefit from the consular services and oversight of the British Embassy. We were told that the request for these appellants is only the second to have come from Azerbaijan. The first failed because the District Judge concluded that the request was informed by extraneous political considerations (Mirzayev, 16 December 2010). In circumstances where the trial would be the first following extradition from the United Kingdom, and thus under some scrutiny, there would be a powerful incentive to ensure that any trial was conducted fairly.

Mr Menon submits that the fraud charges against the appellants are not of great gravity. The gravity of the charges is a matter recognised by the House of Lords and Supreme Court as bearing upon any balancing exercise undertaken in an article 8 case. KR’s article 8 argument rests entirely upon his mental illness (about which there is no up to date information). I accept that mental illness may be a factor which must be considered in article 8 cases (see Bensaid v. United Kingdom (2001) 33 EHRR 205). But in KR’s case the nature of his illness, treatable and treated as it is, in circumstances where there is no reason to suppose that treatment will not be available to him in Azerbaijan leads to the conclusion that his removal would not violate his rights under article 8.

TN relies upon family ties in the United Kingdom. I shall examine TN’s medical evidence under his contention, based upon section 91 of the 2003 Act, that it would be oppressive to extradite him. TN says that his wife is depressed, he has three children aged 18, 16 and nine and an infirm mother of 75 for whom he has responsibility. All are said to have been affected by the pressures resulting from the possibility of extradition. Although it was suggested that he supports his family, the psychiatric report states that he lives on benefits. It is his wife who works part-time. He has siblings in the United Kingdom who could be expected to provide emotional and practical support to his mother and his family.

The domestic circumstances of TN are no different from large numbers of individuals subject to extradition requests. I can discern nothing in the evidence relating to his domestic and family circumstances that could be relied upon in article 8 terms to impede extradition.

Dr Abou-El-Fadl’s report dated 13 April 2013 confirms that TN made a serious attempt on his life on the eve of the scheduled hearing of his appeal last November. The report suggests that the stress of these proceedings has been very great on TN and on his immediate family. He was frightened of what might happen on his return to Azerbaijan. The circumstances in which TN left Sri Lanka, and the impact of the conflict there upon his family, continued profoundly to affect him. TN expressed hopelessness and helplessness in the face of the extradition proceedings. He had flashbacks relating to events in Sri Lanka and suffered from Post Traumatic Stress Disorder arising from those events.

At the time of his attempted suicide TN suffered from depression and anxiety, to which he was vulnerable as a result of the PTSD. He was feeling immense anxiety which rendered him incapable of rational thought. In particular he appears to have failed to appreciate the implications for his family if he were successful in trying to kill himself. Dr Abou-El-Fadl considered that there was a substantial risk that TN would commit suicide if extradited because of his tendency to behave irrationally under pressure. His opinion was that there was also a risk of a mental health breakdown. He was unable to express a view about the degree of volition involved in the suicide attempt. He considered that TN’s ability to resist a suicidal impulse is likely to be significantly impaired given the possibility of extradition, the history of his recent attempt and his PTSD.

TN was admitted to hospital on 7 November 2012. He had taken an overdose of paracetamol. Happily there was no liver damage. He was discharged to the care of the GP for symptoms of depression, although the medical report provides no information at all of any intervening treatment or further specific episodes of difficulty. If TN is on medication or benefiting from other treatment, there is no mention of it in Dr Abou-El-Fadl’s report. There is no recommendation for any particular treatment at present.

The key issue, as was explained in Turner and in Wolkowicz (see paras 22 and 23 above), concerns the prospects of TN succeeding in any suicide attempt that he might make. It is necessary to consider the position at each of the stages (taking into custody, transit and detention in the receiving state). The evidence in this case does not demonstrate that TN has a fixed determination to try to kill himself, but rather that he may act impulsively and make another attempt.

Were TN to be taken into custody in the United Kingdom, there is every reason to suppose that appropriate measures would be put in place to protect him from any risk of suicide. The nature of the risk would be known to those concerned. There is an obligation upon the authorities here to take the appropriate precautionary measures. The same is so in connection with his transit arrangements to Azerbaijan. It is apparent from the discussion concerning detention conditions in Azerbaijan that there is a programme of improvements underway relating to medical facilities and treatment. Furthermore, consular oversight was regarded by Professor Bowring as providing an important protection for these appellants. There is no foundation for concluding that medical treatment, were it necessary, would be made available in those circumstances. The material before the court identifies one case of suicide in pre-trial detention facilities in 2012 (see para 29 above) but nothing has been drawn to our attention which suggests that in such facilities the measures to guard against suicide are seriously deficient. It is an unhappy fact that suicide attempts in British prisons continue to be successful. It is never possible to provide a guarantee against an attempt succeeding. But in my judgment the risk of suicide identified in the medical evidence in TN’s case, together with the risk that he would suffer adverse psychiatric consequences if extradited, do not establish that it would be oppressive for the purposes of section 91 of the 2003 Act to extradite TN to Azerbaijan.

In my judgment none of the grounds advanced on behalf of the appellants succeeds. I would dismiss the appeals.

I agree.