Dudko v The Government of the Russian Federation [2010] EWHC 1125 (Admin)

[2010] EWHC 1125 (Admin)Case No CO/2831/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/05/2010
Before
LORD JUSTICE THOMASMR JUSTICE GRIFFITH WILLIAMS
Between
Vladislav Anatolyevich DudkoAppellantThe Government of the Russian FederationRespondent(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)Mr Alun Jones QC and Mr Rupert Bowers (instructed by Messrs Clarke & Hartland) for AppellantMr Timothy Otty QC and Ms Melanie Cumberland (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates: 30 March 2010
JudgmentAs Approved by the CourtCrown copyright©
[1]The Government of the Russian Federation (Russia), the respondent to this appeal, seeks to extradite the appellant for two offences. The District Judge dismissed the challenges to the Extradition Request and sent the case to the Secretary of State to decide whether the appellant should be extradited. The Secretary of State so decided. On this appeal the appellant seeks to challenge the correctness of the District Judge’s decision on two issues: i) Whether the particulars of the offences were sufficiently specified. ii) Whether there was a real risk of a flagrant denial of justice in breach of Article 6 if the appellant was extradited.[2]Before turning to the issues it is necessary to summarise the background briefly.

The factual background

[3]On 20 August 2007 Russia requested the extradition of the appellant. The request was certified by the Home Secretary as valid on 19 November 2007 under s.70 of the Extradition Act 2003.[4]The appellant ran a furniture importation business in Russia. He had married a United Kingdom citizen in Russia in 1992 and they had had a child. His wife returned to the United Kingdom and he visited her from time to time.

The charges

[5]On 18 May 2002 a warrant was issued in Russia for his arrest on two charges in connection with his furniture importation business: i) An offence contrary to part 3 of Article 174 of the Criminal Code which punishes the performance in an organised group of “financial operations or other transactions with monetary funds or other property acquired in a knowingly illegal manner and likewise the use of the said funds or other property performing entrepreneurial or other economic activity”. ii) An offence under part 2 of Article 210 which punishes participation in a criminal association created “with the aim of committing grave or especially grave crimes”. Before the warrant was executed the appellant had come to the United Kingdom in June 2000 and has never returned to Russia.

The hearing in the Magistrates’ Court

[6]On 23 June 2008 District Judge Purdy sitting at the City of Westminster Magistrates’ Court rejected the appellant’s contention that the extradition request was not sufficiently particularised. He did so in a short judgment in which he gave no reasons beyond stating he accepted the arguments put on behalf of Russia. The challenge to that ruling forms the first issue in the appeal.[7]A further hearing then took place on two days in October and November 2008 at which the appellant contended that his extradition would not be compatible with his Convention Rights and he should be discharged under s.87 of the Act. At that hearing the appellant gave evidence. There was a report from Professor Bowring of Birkbeck College, London. Although the appellant was cross examined extensively, Professor Bowring’s report was not challenged. The judge recorded that his evidence was not conceded. Although the judge found that the appellant was “an articulate and impressive witness” and as I shall explain accepted his evidence, he concluded that there was no real risk of any flagrant denial of a fair trial. It will be necessary to explain his reasons for that in a little greater detail. The challenge to that decision forms the second issue in the appeal.

The further evidence

[8]On the appeal the court was asked to consider(1) further reports from Professor Bowring,(2) a report from A A Hodko, Investigator for Major Cases at the Department for Investigation of Organised Criminal Activity against Public Security and Interests of the Public Service of the Committee of the Ministry of Internal Affairs of Russia,(3) a report form S P Scherba, the Head of the Department of International Co-operation and Comparative Law Studies at the Academy of the Prosecutor General’s Office of the Russian Federation and(4) a report from V A Yalovitsky, the Deputy Head of the Department of Extradition in the General Department of International Legal Cooperation at the Prosecutor General’s Office of the Russian Federation.[9]A question might have arisen as to whether we should consider that further evidence; it was suggested we should not, as it could have been obtained in time for the extradition hearing and was thus not within the court’s powers under s.104(4). In the result it was not necessary for us to decide that point as the position in Russian law became clear as we set out at paragraph 34 below.[10]On 5 March 2009 the Home Secretary decided under s.93 of the Act that the appellant should be extradited. He appealed to this court immediately. Orders were made extending time to 30 March 2010, over a year later. The argument on the appeal was heard on that day for a full day; further time was requested to put further authorities before the court. This was done in mid April 2010.[11]We turn to consider each of the issues in turn.

(i) The test to be applied

[12]In the grounds of appeal served on behalf of the appellant, three separate grounds were put forward that are encompassed within the heading under which the first issue can be simply formulated – “were the particulars of the offences sufficiently specified?”[13]It was contended that there had been a failure to specify the offence in the request as required by s.70(4)(a); secondly that the particulars were insufficient, contrary to the requirements of s.78(2)(c); third that the conduct alleged did not amount to an extradition offence as required by s.137(2)(b).[14]The argument before us centred upon s.78(2)(c) which provides:
“ (2)The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) - … (c) particulars of the offence specified in the request.”
[15]The wording of this section (in Part 2 of the Act) is much narrower than the similar requirement in Part 1 of the Act which essentially applies to European Arrest Warrant cases. In respect of Part 1, s.2(4)(c) requires that the warrant must contain information which includes:
“Particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category one territory under which the conduct is alleged to constitute an offence.”
That section was considered in Von Der Pahlen v Austria [2006] EWHC 1672 (Admin). At paragraph 21, Dyson LJ (as he then was) said that the language of the section was not obscure and, in his judgement, should be given its plain and ordinary meaning. In Ektor v The Netherlands [2007] EWHC 3106 (Admin), Cranston J (with whom Richards LJ agreed) drew attention to the fact that the language of s.2(4)(c) differed from the Framework Decision on the European Arrest Warrant and made it clear that no gloss needed to be put on the language. It was suggested by Mr Otty QC, who appeared for Russia, that the requirements of that sub-section were pithily expressed at paragraph 10 of Cranston J’s judgment where the judge said that the offender can have, “been under no misapprehension as to why he is being sought by the public prosecutor”.[16]It is clear that the requirements of s.2(4)(c) are more comprehensive than the requirements of s.78(4)(c); this may be explained by the fact that the wording of the former was influenced by the provisions of the Framework Decision whereas the wording of the latter was influenced by the earlier provisions of UK extradition legislation. However, it was common ground that s.78(4)(c) should be read as encompassing the more comprehensive phraseology used in s.2(4)(c). I agree with that view because it would be an odd result if Parliament had intended that the request of persons to be extradited to countries in the European Union required particulars of the offence that were more onerous than the requirements of those to be extradited to other countries. I therefore think that the provision in s.78(4)(c) should be interpreted to the same effect as that in s.2(4)(c) using solely, as Dyson LJ suggested, the plain and ordinary meaning of that section without any gloss. (ii). The request[17]The extradition request was a 53 page document. It comprised: i) “A resolution on putting on trial as an accused” dated 18 May 2000; this was signed by a Lieutenant Colonel of Justice, a senior investigator of cases of special importance of the Investigative Committee of the Russian Ministry of the Interior. ii) A “ruling on initiating a criminal case and its proceedings” signed by the same person and dated 15 May 2000. iii) Extracts from the Russian Criminal Code setting out Article 174 and Article 210. iv) An order on the pre-trial detention of the accused dated 18 May 2000. (iii). The particulars provided[18]The original translation of the first document, namely the resolution on putting on trial as an accused was a very poor translation. Prior to the hearing of the appeal, a further translation was provided. This was marginally better, but it is regrettable that the document was not translated by a lawyer or jurilinguist who was not only fluent in Russian and English but also knew about the legal concepts of the law of the Russian Federation and the law of England and Wales. The correct approach must be to look at all of these documents to see if they satisfy the necessary requirements of s.78(2)(c), despite the difficulties provided by the poor translation.[19]The documents also set out extensive factual allegations in virtually identical terms which are said to constitute the particulars of the offences under both Article 174 and Article 210. It was alleged that: i) The acts took place in 1997 and 1998. ii) the appellant was the Director General of a limited liability company known as “Kompaniya Denoli”. iii) With a Mr Zinkin and a Mr Baryshnikov, the appellant “engaged in legalisation of monetary funds, acquired by illegal entrepreneurial activities”. Details of what was alleged against Mr Zinkin and Mr Baryshnikov were set out iv) The appellant with his co-director, Mrs N S Gataullina, entered into a conspiracy with the others “in order to evade taxes and to conceal the proceeds received from the commercial activities of the company”, connected with the sale of furniture which had been acquired with unregistered monetary funds. v) The appellant purchased furniture in three specified periods with unregistered monetary amounts from unidentified persons and registered the furniture in a company under a fictitious commission agreement. vi) The monetary funds from the sale of the furniture were paid into a current account of one of the companies owned by Zinkin and Baryshnikov. The total amount obtained was 3.354m roubles. vii) The appellant transferred the funds with the assistance of Mr Zinkin and Mr Baryshnikov to a Latvian bank and then to an Italian bank where it was used to pay a large number of Italian companies. viii) The appellant received in cash half of the funds amounting to a total of $436,000. ix) The conclusion was:
“As a result of the activities of the criminal group with participation of [the appellant] for the period of from May 19, 1997 to December 11, 1998, the financial transactions with monetary funds, acquired from illegal entrepreneurial activities were made in the total amount of RUR 3,354,627.03, USD 436,000 and 380,237,686 Italian liras.”
[20]The other documents add nothing material. (iv). The sufficient specificity[21]It is clear, as was helpfully submitted to us by Mr Otty QC that the Request set out for the appellant information not only, as I have stated, as to the period involved, but also information as to the sums involved, the companies involved in the transactions, the use of fictitious documents and what were alleged to be sham companies. In those respects there can be little doubt but that the information was sufficient.[22]However, despite reading and re-reading the documentation several times and being helpfully taken through it by Mr Otty QC, it is quite impossible to discern whether what is alleged against the appellant is a conspiracy to evade tax or a conspiracy to evade exchange control regulations. Although it is alleged that the purpose of the transactions were the evasion of tax and concealment of profits, there is no statement anywhere as to the amount of tax it is said was evaded. Nor does the document specify the unlawful activity and origins of the funds said to be laundered. Apart from that one assertion, the allegations essentially read as a conspiracy to evade exchange control regulations; the fact that significant sums were received in cash is consistent both with exchange control and tax evasion and so cannot help in determining the nature of the criminal conduct alleged.[23]It was not seriously disputed by Mr Alun Jones QC who appeared for the appellant, that if the extradition request disclosed sufficient particulars of a conspiracy fraudulently to evade tax, then it would not be possible to sustain a contention under s.137(2)(b) that the conduct did not constitute an offence under the laws of the United Kingdom. However, it was not disputed by Mr Otty QC that if it disclosed a conspiracy to evade exchange control regulations, then that would not constitute an offence under the laws of the United Kingdom.[24]It would have been relatively simple (and have saved a great deal of time and money before the City of Westminster Magistrates’ Court and this court), if the request for extradition had been formulated in a way where the nature of the conduct alleged was clear and particularised in such a way so as to comply with s.78(4) (c). If such a document had been produced and translated properly, it would obviously have been right for the court to approach that, taking into account the different nature of the Russian legal system. However, it seems to me that it is simply not acceptable to produce lengthy documentation which fails to make clear the conduct alleged to constitute the offence. Doing my best, I cannot read the request made by Russia as particularising conduct alleged to constitute an offence of conspiracy fraudulently to evade tax. It reads much more like a conspiracy to evade exchange controls. It clearly fails therefore to meet the requirements of s.78(2)(c).[25]There would, in any event, have been a further difficulty. It is clear that much of the conduct alleged, even if it had been clear it encompassed a conspiracy fraudulently to evade tax, would also have encompassed a conspiracy to evade exchange controls. As it would not, in my view, have been permissible to return the appellant to Russia to face charges of a conspiracy to evade exchange controls, the court would then have had to consider whether it was possible to make clear that part of the allegations on which he could properly be extradited. That would be an impossible task, given the documentation produced by Russia.[26]In the circumstances, I have concluded that this request does not satisfy the requirements of particularity in accordance with the provision of s.78(2)(c)).[27]The appeal must be allowed under s.104. The judge should have decided the question differently; if he had done so the extradition request would not have satisfied the statutory requirements and the appellant’s discharge must therefore be ordered.[28]My conclusion on the first issue makes it strictly unnecessary to deal with the second issue, namely the issue under s.87(1) as to whether the extradition would be compatible with the appellant’s Convention rights, at any length. It may be convenient to record the facts of this unusual case and the arguments advanced, although I do not think it is desirable to express a finally concluded view.

(i) The appellant’s case

[29]It was the evidence of the appellant before the District Judge that the furniture importing business was carried on with Mrs Gataullina, his co-accused who was convicted and sentenced for the offences in respect of which the appellant’s extradition was sought. The business he was engaged in involved the import of furniture from Italy and its sale in Russia. In 1997 he had a visit from a tax official who found errors and imposed a fine; the official also made a demand for a bribe, euphemistically called a “financial incentive” which the appellant paid, as that was the way things were done in Russia. Over the following few months that tax official requested further financial donations which the appellant paid.[30]In about October or November 1999, the appellant was seen by persons representing “The Investigative Committee of the Russian Federation” who asked him about the import of furniture and whether it was being used for money laundering. A raid then took place at his offices during which all the paperwork was taken in relation to the import business. During either April or May 2000 he was told by his lawyer, Mr Zagorsky Maxim Gennadievich, that he had been approached by the police and that the difficulty he had could be resolved. He went with Mr Zagorsky to meet the police officer who said that if $125,000 was paid, “He could make the trouble go away”. After discussions with his partner, he met the policeman, Mr Kirillov Ski Oleg, and he paid him $70,000 or $75,000. He was told by the policeman that this was not what he had asked for but he would try and persuade the police to take this amount for now. (ii). The finding of the District Judge

The judge having heard the appellant’s evidence and his cross-examination concluded:

“Accordingly I am driven to accept on the facts before me that the business was targeted at best involving mixed motives i.e. Some irregularity, perhaps most serious, but a willingness by certain well placed investigators, at least, to demand monies to ignore irregularity/crime, at worse a campaign to extract monies corruptly from the outset.”
He added later in his judgment:
“I find myself compelled to conclude [the appellant] was sought out and substantial sums demanded to avoid further enquiries into whatever may or may not have been illegal trading or money laundering. Furthermore I find the official concerned was acting in league with the investigators or some of them at the very least.”
[32]The judge concluded that if the trial process in Russia was willing and able to consider in full the appellant’s allegations, including those of serious corruption, then he had no proper complaint. He concluded that the system did.[33]The judge also took into account in reaching that conclusion the appellant’s complaint about lack of access to his documents and the intimidation of witnesses. (iii). The evidence before this court on the trial process in Russia[34]As I have indicated, the position with regard to the trial process in Russia became clear on the exchange of the evidence to which I have referred. In essence it can be summarised as follows: i) If there is an allegation of corruption, it will be investigated by the authorities. If it is found that a bribe has been asked for and paid, the person asking for it and the person paying it are both liable to punishment. ii) There was no means by which the trial of the appellant in Russia under the offences in respect of which extradition was sought would consider the allegation made by the appellant (and found by the judge to be true) that those investigating this case had sought a bribe. It was not possible for the appellant to raise as a defence to the charge that the prosecution was initiated as a result of his failure to meet in full the demands of those who had brought the proceedings against him. Nor was it possible for him to allege as a defence in the trial process that the prosecution was actuated by malice and the charges trumped up and fictitious.[35]The actual position as to the trial of the appellant was therefore different to the position before the District Judge. (iv). The legal test under s.87[36]There was no dispute between the parties as to the legal test to be applied under s.87. In a series of decisions of the House of LordsR(Ullah) v Special Adjudicator [2004] UKHL 26 [2004] 2 AC 323, EM(Lebanon) v Home Secretary [2008] UKHL 64 and RB(Algeria) v Home Secretary [2009] UKHL 10, it was clear that it is not enough to prove that the matters complained of would breach Article 6 but it is necessary to show that the deficiencies in the process were such that the trial he would face on his return would be “so fundamental as to amount to a nullification or destruction of the very essence of the rights [Article 6] guaranteed”. I have used that phrase although it can be expressed as “a flagrant denial of justice” or “a gross violation”. (iv). The importance of the integrity of the prosecutor to the conduct of a fair trial[37]In the argument before the judge and in the skeleton argument before the court, the case advanced on behalf of the appellant was essentially that there was no process in Russia for staying a criminal trial for abuse of power or abuse of process. However, that submission only articulated the mechanics of the common law remedy and not the real complaint of the appellant which was that the system of trial in Russia was a flagrant denial of justice in the circumstances of this case.[38]In essence what was contended in the oral argument on behalf of the appellant was that it was a fundamental requirement of justice that a prosecution could not validly be brought if it was based on trumped up or fictitious charges or rooted in the corruption of the prosecutor in that case; that a legal system which denied the right of a defendant to raise that issue in the trial of charges where there was credible evidence of corruption of the prosecutor and trumped up charges was a system where there would be a flagrant denial of justice and the nullification of the appellant’s right to a fair trial. Furthermore it was a further manifest breach of the right to a fair trial that no disclosure of information would be made by the Russian authorities to the appellant in relation to the facts in relation to the bribery and corruption found by the District Judge on the facts of this case. There would be no equality of arms. This was not a case where there were generalised allegations of corruption of the Russian legal system, but specific allegations which the District Judge had found to be credible. Taking all these factors together, there would be a flagrant denial of his right to a fair trial if he was extradited to Russia.[39]We were referred to a number of decisions of the European Court of Human Rights including: A v United Kingdom [2009] All ER (d) 203; Mirilashvilli v Russia [2008] ECHR 1669 and Jasper v United Kingdom [2000] 30 EHHR 441.[40]Mr Otty QC, on behalf of Russia, contended that the Russian code had all the necessary guarantees in respect of the charges brought. Nothing in the jurisprudence of the ECtHR showed that there was a more free ranging right to challenge the good faith of the prosecution in relation to such charges on collateral grounds. The fact that the defence could(1) neither seek documentation in relation to the trumped up nature of the charges and the corrupt nature of the prosecution nor(2) raise those matters at all in the trial of the charges brought made no difference to the intrinsic fairness of the Russian legal system. There was no breach of Article 6 in denying the accused the right to raise such matters in the trial of the charges, as they could be raised in separate proceedings. A system that (1) permitted the trial of a defendant on a criminal charge on concrete and specific facts and (2) made provision for a separate criminal investigation of any bad faith or corruption on the part of state officials was entirely compatible with Article 6. Furthermore there was nothing to suggest that this would be a flagrant denial of the rights under Article 6.[41]It is perhaps not unsurprising that no case can be found that has considered the issue that arises in the present case, as a finding of the type made by the District Judge at the outset of a case is rare. It therefore would be necessary to examine the issue by reference to basic principles as to the role of the prosecutor in criminal proceedings subject to Convention rights under Article 6. The principles would appear to include the following: i) A prosecutor plays a central role in the administration of criminal justice. The necessity for the independence, impartiality and fairness of the prosecutor is universally recognised; many states characterise the role of the prosecutor as having judicial functions. ii) In some systems, the prosecutor directs the investigation of matters that result in a charge against an accused; in others, the prosecutor reviews the results of the investigation and then determines whether a charge should be brought. iii) In either case, it is axiomatic that a prosecutor must act fairly, impartially and independently in the interests of justice. The integrity of the person who conducts the investigation or takes the decision to charge is therefore essential. As both the investigation and the decision to prosecute is at the foundation of a criminal case, any corruption or bad faith on the part of the prosecutor would have been highly material to the fairness of the proceedings at the outset. iv) It is the prosecutor’s duty, in states where he superintends the investigation, to investigate the facts, including those that may exonerate, and obtain the evidence. The prosecutor is generally responsible for making available exonerating material to the accused. It is almost always the obligation of the prosecutor to present that evidence to the court.[42]If these principles correctly summarise the role of the prosecutor, it would appear to follow that the fairness of the trial process depends to a material degree upon the integrity, impartiality and good faith of the prosecutor in this task. If so, given the essential role of the prosecutor in a criminal trial, it may be difficult to see how the rights under Article 6 to a fair trial can be met, if the prosecutor is corrupt or acts in bad faith.[43]It would, therefore, appear to follow that there may be substantial difficulties in maintaining the suggested dichotomy between the charge in a case and the bad faith or the corruption of the prosecutor in relation to that case. Where there is evidence of corruption and bad faith on the part of the prosecutor, I do not find it easy to see how an accused can have a fair trial, if he cannot raise in his defence the conduct of the prosecution and is denied material documents in relation to it. There would appear to be no public interest grounds that could be advanced as a justification for withholding information. The question would arise as to how there could be confidence in the reliability or truth of evidence presented by the prosecutor where there was no right to examine whether the evidence was being put forward by a prosecutor who was acting in bad faith or who was corrupt.[44]These questions raise important issues in relation to the role and accountability of the prosecutor in relation to the fairness of a criminal trial which requires more detailed examination than was possible. In the light of my conclusion the appellant be discharged because the offence was not properly specified, it would not be desirable to express a view on whether on the facts of this case, the Russian system violates Article 6 or does so in such a way as to amount to a flagrant denial of justice.[45]I agree that the particulars of the offences have not been sufficiently specified so that the request does not satisfy the requirement of particularity in accordance with section 78 (2) (c) and so I too would allow the appeal. I express no view on the issue whether the extradition would be compatible with the appellant’s Article 6 rights.

Cited in 8 later judgments