In The Bow Street Magistrates' Court
The Government of The Russian Federation v Akhmed Zakaev
The Russian Federation seek the extradition of Akhmed Zakaev in respect of
some thirteen allegations of conduct which, had it occured in the United Kingdom,
would have amounted to the offences of soliciting persons to murder, three counts
of murder, two counts of wounding with intent to cause grievous bodily harm,
one count of false imprisonment and six counts of conspiring with others in
a course of conduct which would necessarily involve the commission of offences
of murder, wounding and hostage taking.
Mr James Lewis QC and Mr Qureshi appear on behalf of the Government of the Russian
Federation, and Mr Edward Fitzgerald QC and Mr Julian Knowles appear on behalf
of Mr Zakaev. I am greatly indebted to them all for the most thorough way this
case has been investigated and presented to me. The case has been lengthy and
I have been provided with a very considerable amount of evidence and background
material. I have considered that material as a whole and in these reasons I
am merely extracting the most salient of the facts to give an explanation for
my decision.
These proceedings fall within the European Convention on extradition and as
such it is not my task to enquire into whether there is sufficient evidence
to support these charges. Although I have heard and considered a considerable
amount of evidence, that evidence has to be assessed and weighed to consider
the validity of various issues that have been raised by the Defence to which
different considerations apply.
With the exception of the issues raised by the Defence, the other formalities
of the convention are complied with. I am satisfied that the defendant is the
person being sought by the Government of the Russian Federation and that the
documentation is properly authenticated and certified. The Defence however raise
a number of substantial issues. Although many of these issues are intertwined,
and some parts of the evidence touch upon more than one of the Defence issues,
I have examined each issue separately.
The Queen's Peace
It has been submitted to me that the conduct, which would amount to an offence
of murder in this country, should not be regarded as an extradition crime because
the offence of murder can only take place during the currency of the Queen's
peace, and that there is no peace during the existence of war. The killing of
combatants in war would not amount to the crime of murder.
The Government maintain that the fighting which was taking place in Chechnya
amounted to a riot and rebellion, "banditry" and terrorism. The Defence
submit that it is clear beyond peradventure that this was at the very least
an internal armed conflict and could probably be described as a war. In many
circumstances it would be difficult to decide the point at which civil riot
becomes an internal armed conflict. Mr Lewis drew the analogy of Northern Ireland
and suggested that the difference was purely a matter of degree. Although the
line has to be drawn at some point, I am quite satisfied that the events in
Chechnya in 1995 and 1996 amounted in law to an internal armed conflict. Indeed,
many observers would have regarded it as a civil war. In support of that decision
I have taken into account the scale of fighting - the intense carpet bombing
of Grozny within excess of 100,000 casualties, the recognition of the conflict
in the terms of a cease-fire and a peace treaty. I was unable to accept the
view expressed by one witness that the actions of the Russian Government in
bombing Grozny were counter-terrorist operations.
Having satisfied myself that this amounted to an internal armed conflict which
would fall within the Geneva Convention, I reach the conclusion that those crimes
which allege conspiring to seize specific areas of Chechnya by the use of armed
force or resistance are not extraditable crimes because the conduct in those
circumstances would not amount to a crime in this country. On that basis I propose
to discharge counts 7, 8, 9 and 13.
However, in respect of the other allegations of murder and conspiracy to murder,
I am satisfied that the alleged victims in those cases should have had the protection
of Article 3 of the Geneva Convention in so far as they were civilians. As such,
any unlawful killing of them could amount to murder and I therefore do not discharge
those charges on this ground.
The Political Defence
Having satisfied myself that the allegations of murder of civilians should not
be discharged merely on the grounds that there was an internal armed conflict,
I have to consider under Section 6 (1)(a) whether the offence was of a political
character. By virtue of the Suppression of Terrorism Act, I am satisfied that
this exemption can not apply to the offence of murder.
Abuse of Process
It is the Defence submission that for a number of reasons it would now be unjust
and oppressive to return Mr Zakaev to stand his trial in Russia.
The first issue is one of delay. The alleged offences on which Mr Zakaev is
sought occurred in 1995 and in 1996. The offences would have been apparent to
the Authorities at the time, and two witnesses assured me that they made statements
to the Prosecution shortly after the event. It was not until some 6 years later
that a decision was made to arrest Mr Zakaev, and it was not until the 25th
October 2002 that the Russian request for his arrest was circulated by Interpol.
That delay in itself is sufficient to cause me concern, but I believe I have
to make some allowance for the fact that for some months of this time the Russian
Government was involved in what I have found to be a substantial internal armed
conflict. I have therefore looked at the events which occurred between 1995
and October 2002 when Mr Zakaev was arrested in Denmark.
In 1996 Mr Zakaev played a significant part in securing the peace negotiations,
and in 1997 became the first Deputy Prime Minister of Chechnya. From October
1999 to March 2000 Russian entered Chechnya and further fighting took place
in which Mr Zakaev was wounded. Throughout 2001 and 2002 Mr Zakaev acted as
a peace envoy, travelling extensively, but his whereabouts were apparently known
to the Russian Authorities. Indeed, on the 18th November 2001 Mr Zakaev travelled
to Moscow Airport in an attempt to negotiate disarmament. He met with senior
Government officials who had themselves been reassured that there were no proceedings
anticipated against Mr Zakaev. The existence of the decision to arrest Mr Zakaev
taken 2 months earlier appears to have been overlooked. Mr Fridinsky, the Russian
prosecutor in this case, has explained that they had no idea that Mr Zakaev
was going to attend a meeting in Moscow. Whilst I do, of course, accept that
Mr Fridinsky may not have known, I find it surprising that a warrant for such
serious crimes alleged to have been committed by such a well-known person should
not have been noticed by the Russian Immigration Authorities. In October 2002
the World Chechen Congress took place in Copenhagen. Mr Zakaev was attending.
On the 23rd October the Moscow theatre siege began and ended in tragedy. Before
it ended, on the 25th October 2002 the Russian Government issued their request
to Interpol to secure Mr Zakaev's arrest.
In addition to the delay in arrest, it is apparent that there has been delay
in the investigation and preparation of the Prosecution's case. Although two
witnesses told me that they had made statements soon after the events, those
statements have not been produced or provided to the Defence. Although they
were not required to do so, the Russian Government have supplied copies of the
statements on which they rely. With one exception (an unnamed witness) who made
a statement on the 13th March 2000, the other 11 witnesses made their statements
after Mr Zakaev was arrested. In respect of 4 of those witnesses, their statements
were not taken until after the extradition request to Denmark had failed.
Note that in the request to Denmark it was being alleged that Mr Zakaev was
involved in the Moscow theatre siege and that he had murdered Father Serge (now
known as Father Philip). Both allegations were later withdrawn, and indeed Father
Philip has given evidence before me.
In the months prior to Mr Zakaev's arrest in Denmark, Mr Zakaev attended press
conferences and was received by members of the Upper House of the United Kingdom
Parliament. Although protests were made, it was not alleged that he had committed
any offences, or indeed that there was a warrant for his arrest.
Section 6 (1)(c)
The Defence submit that the Russian Government's request for his return "is
in fact made for the made for the purpose of prosecuting or punishing him on
account of his race, religion, nationality or political opinions".
The Defence point to Mr Zakaev's very high profile is a Chechen separatist.
I have received evidence, called on behalf of the Defence, on the issue of the
Russian Government’s motivation. It is an issue on whish honest and informed
expert commentators could perfectly properly form entirely different views.
Mr de Waal told me that in his view the decision to arrest Mr Zakaev was a political
decision based upon the fact that the Russian Government’s policy is now
to win a military victory and to neutralise the moderate view. Mr Rybakov told
me that the Government’s aim was to exclude Mr Zakaev from the peace process
and Mr Rybkin told me that there was a desire to discredit him as a moderate
and to remove him from the negotiating process. Whilst respecting their opinion,
I thought it right to see whether there was any corroborative evidence. I have
noted the long delay. I have also noted that the Kremlin denied the existence
of any criminal proceedings against Mr Zakaev when in fact a warrant was still
extant. I have noted that the Russian Government continued to negotiate with
Mr Zakaev despite the existence of the warrant, and that there was no attempt
to extradite Mr Zakaev until the moment of the World Chechen Conference and
the Moscow theatre siege. I have also noted the statements of the Russian foreign
minister likening Mr Zakaev to Osama Bin Laden.
Section 6 (1)(d)
The Defence submit that if returned Mr Zakaev "would be prejudiced at his
trial or punished, detained or restricted in his personal liberty by reason
of his race, religion, nationality or political opinions".
This provision in the Extradition Act requires me to make an assessment of what
might happen if Mr Zakaev were to be returned to Russia. It is the Defence case
that if returned Mr Zakaev will come to serious harm or be killed, because of
his status as a senior Chechen politician, a member of the elected Chechen Government
and one time Deputy Prime minister.
In order for this restriction to apply it is necessary for me to come to an
assessment of what might happen if he were to be returned and also to be satisfied
that that possible outcome is due to his race, religion, nationality or political
opinions.
The first part of the restriction relates to the trial. In Chechnya there is
no right to a jury trial at the present time. However, Mr Zakaev could be tried
by a jury in a neighbouring state. By virtue of the European Convention, the
United Kingdom acknowledges that there is at the very least a presumption that
any trial in Russia will take place fairly. I am therefore prepared to accept
that the trial process itself will be fair in terms of its procedure. It is,
however, necessary for me to examine and analyse the conditions in which Mr
Zakaev would be likely to be detained and to consider whether that would have
any prejudicial effect on his trial.
The Defence case is that if Mr Zakaev is returned he will subject to torture
whilst in detention. The Deputy Minister responsible for Russian prisons gave
evidence to me about the very considerable improvements that have taken place
within Russian prisons in the past few years. They are commendable improvements
made in difficult circumstances. He gave me an assurance that Mr Zakaev would
come to no harm whilst he was detained in a Russian Ministry of Justice institution.
I am sure that he gave that assurance in good faith. I do, however, consider
it highly unlikely that the Minister would be able to enforce such an undertaking,
given the nature and extent of the Russian prison estate. I consider that such
a guarantee would be almost impossible in any country with a significant prison
population. I was also concerned as to the type of institution to which the
defendant would be sent. Although the Minister indicated that he would be detained
in a Ministry of Justice institution, another witness eventually confirmed that
the decision could be taken by the Prosecutor who could choose to place Mr Zakaev
in an institution run by the FSB.
Against that undertaking, I have to weigh the other evidence I have received
and in particular the public statement made by the Council of Europe Anti-Torture
Committee which assesses “that there is a continued resort to torture and
other forms of ill treatment by members of the Law Enforcement Agencies and
Federal forces operating in the Chechen Republic”. It is apparent from
the United Nations Committee on torture that there is a deep concern over the
Russian treatment of Chechens and they have identified numerous and consistent
allegations of widespread torture of detainees.
Throughout the course of this hearing I have been referred to two leading Chechens
who died in prison shortly after being sentenced to long terms of imprisonment.
The deaths have clearly caused considerable concern, but the Russian Government’s
procedures do not provide any opportunity for public investigation of their
deaths. At best it is an unfortunate coincidence, at worst it could be unlawful
killing. Although there are good grounds for suspicion, there is no evidence
before me on which I can properly make a finding of fact.
There are, however, two other aspects of the evidence that I have heard and
which assist me in making an assessment of what might happen if Mr Zakaev were
returned. The first piece of evidence concerns the evidence from the witnesses
that I have seen, particularly Mr Rybakov, Mr Cherkasov, Mr Kovalov and Mr Rybkin.
Mr Rybakov told me "that he could not be sure that methods of torture would
not be used against Mr Zakaev. Political motivation can increase the risk of
torture to people in custody and the risk to Mr Zakaev is of an order of magnitude
greater than that to the ordinary criminal". Mr Kovalov told me that he
could not guarantee Mr Zakaev’s security. He told me "that people
accused of crimes are often subject to torture whilst in custody during preliminary
interrogation. For Russian Federation citizens they are often but not always
tortured. Chechens are almost always tortured". Mr Rybkin, the former Speaker
to the Russian Parliament, told me "that he was very worried about Mr Zakaev
coming to harm whilst in detention".
The second aspect of the evidence that I consider to be significant is the evidence
of the witness Mr Doshuev. The circumstances in which Mr Doshuev came to give
evidence were extraordinary. Last December he made a statement to the Russian
Authorities implicating Mr Zakaev. His name, address and date of birth were
deleted from the statement and the statement formed part of the Russian Government’s
case.
However, he was called by the Defence who in normal circumstances would not
have had any knowledge of his identity or whereabouts. In giving evidence before
me, Mr Doshuev told me that he had been detained at a roadblock, held in a pit
for 6 days, and subjected daily to torture in the form of beatings and electric
shocks. He admitted making the statement but denied the truth of it. He told
me that having made the statement, he was then told that he would have to repeat
the allegations on television. This he did whilst he was still in custody. That
interview was broadcast throughout Russia, including Chechnya. He was detained
for a further 2 months and released in February, when he realised that he could
not return to Chechnya and he believed that he would be in danger if he remained
in Russia. He therefore left the Russian Federation and made his home elsewhere,
from where he contacted the Defence lawyers. After an ajournment to obtain instructions,
Mr Doshuev was cross-examined. His evidence was unshaken. To rebut the evidence,
Mr Krivorotov, the Public Prosecutor who took Mr Doshuev’s statement, was
called to give evidence. He said that Mr Doshuev had attended voluntarily, that
there was no-one from the FSB present, that he saw no visible signs of injury
to Mr Doshuev, and no complaint of ill-treatment was made. In addition, the
Government drew my attention to a document which related to the roadblock number
27 in Grozny. It was here that Mr Doshuev said that he had been detained. There
was no evidence that he had been detained and the Government rely on the absence
of any such record to say that he was not in fact detained. If Mr Doshuev's
evidence is correct, I am quite sure that no record of his detention would have
been made or retained. In weighing the evidence of Mr Krivorotov and Mr Doshuev,
I have applied the test that the Defence need to satisfy me that it is more
likely than not that Mr Doshuev's evidence is correct.
Section 11 (3)
This Section of the Extradition Act applies on an application to the High Court
for habeas corpus. Mr Fitzgerald drew my attention to the case of Kakis where
the court exercising its powers under Section 11 decided that it would be unjust
or oppressive by reason of a lapse of time to prosecute Mr Kakis for murder.
Mr Fitzgerald goes on to say "that here there is an overwhelming and inevitable
case in which the High Court were to find that it was unjust or oppressive to
extradite". With that in mind, he submits that it is appropriate to adopt
the Kashamu argument and to say where the evidence is overwhelming and the finding
inevitable that this jurisdiction should be exercised by a District Judge.
Conclusions
I come to the following conclusions based upon the evidence that I have received
and for the reasons that I have outlined. I am satisfied that there has been
a delay in bringing these proceedings of some 7 years. In view of the gravity
of the allegations I do not consider that delay in itself is sufficient to warrant
a finding of abuse of process. However, there are other factors to be added
to that delay. In particular, there is the delay in the proper investigation
of these alleged offences and the fact that Government officials and others
were led to believe that there were no charges pending against the defendant.
The initial request to Denmark included allegations in relation to the Moscow
theatre siege and to the murder of Father Philip; on which it is now conceded
there was no evidence whatsoever. When those factors are added together the
inevitable conclusion is that it would now be unjust and oppressive to return
Mr Zakaev to stand his trial in Russia.
I found that the evidence given by Mr De Vaal, Mr Rybakov and Mr Rybkin was
truthful and accurate, and from their evidence I am satisfied that it is more
likely than not that the motivation of the Government of the Russian Federation
was and is to exclude Mr Zakaev from continuing to take part in the peace process
and to discredit him as a moderate. I therefore find as a fact that the Russian
Government are seeding extradition for purposes of prosecuting Mr Zakaev on
account of his nationality and his political opinions. I take the view that
Mr Zakaev is entitled to the benefit of the protection provided by Section 6(i)(c).
In making the assessment as to what might happen to Mr Zakaev if he were to
be returned to Russia, I am attaching particular weight to the evidence given
by Mr Rybakov, Mr Cherkasov and Mr Rybkin. However, it is the evidence given
by Mr Doshuev which I find the most persuasive. It was clear, unequivocal and
unshaken by cross-examination. With some reluctance I have to come to the inevitable
conclusion that if the Authorities are prepared to resort to torturing witnesses
there is a substantial risk that Mr Zakaev would himself be subject to torture.
I am satisfied that such punishment and detention would be by reason of his
nationality and political opinions. I therefore believe that Mr Zakaev is entitled
to the benefit under Section 6(i)(d) and should not be returned to face trial
in the Russian Federation.
I was also asked to consider discharging Mr Zakaev on the basis that there was
an overwhelming and inevitable case in which the High Court would find it would
be unjust or oppressive to extradite Mr Zakaev. This provision in Section 11(3)
of the Extradition Act is a jurisdiction exercised by the High Court. It has
been submitted to me that by an extension of the principles in Kashamu it would
be open to this Court to apply that provision. Whilst I have some sympathy with
the submission, it seems to me that in any case where there was overwhelming
evidence and an inevitable conclusion, it would in almost every case (as in
this case) give rise to grounds for discharging the defendant under Section
6. I therefore decline to rely upon Section 11 for this decision.
I am therefore discharging the defendant.
JUDGE T. WORKMAN
Senior District Judge
13 November 2003