Dogaev (aka Evgeny Rotshtein) v Czech Republic [2014] EWHC 2995 (Admin)

Case No CO/1898/2014[2014] EWHC 2995 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/09/2014
Before
LORD JUSTICE FULFORDMR JUSTICE NICOL
Between
Evgeny DogaevAppellantCzech RepublicRespondent
David Josse QC and Ben Keith (instructed by Lawrence and Co) for AppellantPeter Caldwell (instructed by CPS Extradition) for RespondentHearing Hearing dates: 31 st July 2014
JudgmentMr Justice Nicol :
[1]On 24th April 2014 District Judge Evans ordered that the Appellant should be extradited to the Czech Republic in response to a European Arrest Warrant (‘EAW’) to face a charge arising out of an incident on an aircraft which was carrying the Appellant from Moscow to Geneva but which was diverted to land at Prague airport on 28th December 2006. He appeals to this court pursuant to Extradition Act 2003 s.26.[2]The Appellant is a Russian national. He was a wealthy businessman. In December 2006 he travelled with his wife, children and friends from Moscow to spend a holiday in Switzerland.[3]The EAW described what happened as follows:
“On 28.12.2006 at about 10.00 CET on flight SU 271 from Moscow to Geneva operated by Airbus A321, the requested person endangered the safety of the said aircraft attempting to gain control over it. First of all he entered in dispute with an unidentified passenger. The stewardess asked him to stop arguing and to go back to his seat. He answered he would break her head and after a repeated request to sit down he answered, ‘I will call my people and you will do what I say’ keeping his right hand in the pocket of his trousers and holding a free shop pack in his left hand. Then the purse[r] followed him to the section behind the cockpit where he requested to speak to the captain and to fly to a destination he would choose. The cabin crew tried to calm him down nevertheless he attacked them requesting access to the cockpit and to redirect the flight to Egypt. Several passengers also tried to calm him while he declared he did not want to live any more and that he would explode the plane threatening with a free-shop bag. Finally he was overpowered by the cabin crew and passengers. Due to his conduct the captain opted for an extraordinary landing at the airport Praha-Ruzyne.”
He is charged with an offence under Article 180a of the Czech Penal Code with endangering the safety of an aircraft by using or threatening violence, an offence which carries between 8 and 15 years imprisonment. In addition, in the EAW the Czech authorities marked the Framework List against the offence of “unlawful seizure of an aircraft”.[4]On his arrival in Prague, the Appellant was arrested by the Czech authorities. He was charged the following day with an offence under Article 180a.[5]On 24th January 2007 a Russian Federal Judge in Moscow issued an arrest warrant for the Appellant. He was originally wanted in connection with an offence under Article 207 of the Russian Criminal Code, which concerns knowingly making a false communication in relation to terrorism and carries a maximum sentence of 3 years.[6]On 22nd February 2007 the Czech authorities released the Appellant on bail after he provided a security of 1 million Czech Korunas (approximately £30,000).[7]In April 2007 the Appellant launched his own criminal proceedings in Russia. He challenged the legality of the proceedings which had been brought against him. He brought counter-claims against the Aeroflot staff for inflicting unlawful violence on him. Thereafter, the Russian authorities amended their extradition request and sought the Appellant’s return for the more serious offence of plane highjacking under Articles 30(3) and 211 of the Russian Criminal Code. This carries a minimum sentence of 8 years and a maximum of 15 years imprisonment.[8]The Russian authorities sought the Appellant’s extradition from the Czech Republic in order for him to stand his trial in Moscow. His extradition was first ordered on 29th May 2007, but this was annulled two months later on 27th July 2007 in order for new evidence to be considered. The Czech Court ordered his extradition to Russia a second time on 18th March 2008. His appeal to the High Court in Prague was dismissed on 17th June 2008. On 12th August 2008 the Czech authorities suspended their own prosecution of the Appellant. The Czech Minister of Law ordered the Appellant’s extradition to Russia on 27th August 2008 and the Appellant’s constitutional appeal was dismissed on 9th September 2008.[9]On 24th September 2008 and a day or so before his extradition to Russia was due to take place, the Appellant fled from the Czech Republic. By 25th September 2008 he had arrived in the UK and claimed asylum here.[10]On 6th January 2009 Russia requested that the UK should extradite him so that he could be tried in Moscow in relation to the same incident.[11]His asylum application was refused by the Secretary of State for the Home Department on 21st February 2009. The Secretary of State considered that there were serious reasons for considering that he had committed a serious non-political crime and, because of Article 1F(b) of the UN Refugee Convention, he was not entitled to the protection of Article 33(1) of that Convention. The Appellant appealed against that refusal to the First Tier Tribunal.[12]In the meantime, the Russian request for the Appellant’s extradition was considered at Westminster Magistrates Court (also by District Judge Evans). On 28th September 2009 DJ Evans rejected the Appellant’s arguments that the Russian prosecution was an abuse of process, that he would not have a fair trial in Russia and that his extradition would be a violation of Article 3 and 8 of the European Convention on Human Rights (‘ECHR’). The District Judge therefore sent the Russian request to the Secretary of State for a decision under Extradition Act s.87(3) as to whether the Appellant should be extradited to Russia. The Appellant appealed that decision to the High Court.[13]On 31st July 2010 the First Tier Tribunal (Immigration Judge Dineen) allowed the Appellant’s appeal on both asylum grounds and on the ground that the Appellant’s removal to Russia would be contrary to Articles 3 and 8 of the ECHR. Judge Dineen had also been considering a like appeal by the Appellant’s wife. He also allowed her appeal on Refugee Convention and ECHR grounds.[14]The Secretary of State was granted permission to appeal Judge Dineen’s decisions to the Upper Tribunal. However, on 22nd March 2011 Senior Immigration Judge Jarvis concluded that there had been no error of law in Judge Dineen’s decision. In consequence, the Secretary of State’s appeal was dismissed.[15]Since the extradition to Russia could not go ahead consistently with the decisions of Judge Dineen and the Upper Tribunal, the parties to the Appellant’s appeal to the High Court against DJ Evans’ decision sensibly decided that it should be compromised. Accordingly, a consent order was agreed on 12th January 2012 whereby the appeal was allowed and the order for the Appellant’s extradition to Russia was quashed. The order was sealed on 13th January 2012.[16]On 7th February 2012 the Czech authorities cancelled the order or permit for the Appellant’s extradition to Russia. The domestic Czech proceedings (which had previously been suspended) were revived and a domestic warrant for the Appellant’s arrest was issued by the Czech authorities on 24th August 2012. The EAW was issued by Judge Novy of the Prague District Court on 28th February 2013. It was certified by the Serious Organised Crime Agency on 31st July 2013 and the Appellant was arrested on the same day.[17]Further information in support of the EAW was provided by the Czech prosecutor on 2nd December 2013.[18]A request for yet further information was sent to Judge Novy. Judge Novy replied on 25th February 2014 direct to DJ Evans. Unusually, DJ Evans did not share Judge Novy’s response with the parties and the first that they learned of it was when DJ Evans made reference to what Judge Novy had said in the course of his decision. This was unfortunate. It should not have happened. It is axiomatic that the parties should be aware of material placed before a judge and have the opportunity to comment on it.[19]As I have said, Judge Evans gave his decision on 24th April 2014. Relevant to the grounds of appeal which Mr Josse QC on his behalf pursues before us, Judge Evans came to the following conclusions. i) He rejected arguments based on Extradition Act 2003 s.14 that it would be unjust or oppressive to extradite the Appellant to the Czech Republic by reason of the passage of time. Judge Evans said that the Appellant, “if not the classic fugitive, is nevertheless one who shares many of their characteristics.” He was responsible for the vast bulk of the delay. There would be no injustice. All of the prosecution evidence had been put in statement form by 2007. The Appellant’s recollection of events might not be so good, but that was likely to be because he had been drunk at the time rather than because of the passage of time since the incident. His wife and friends were on board and might be able to testify for him. There had been changes in the Appellant’s life since the incident, but given the seriousness of the offence, these were not such as to make it oppressive to return him to the Czech Republic to stand trial. ii) There was no real risk of the Appellant being sent to Russia by the Czech authorities. The Czech prosecutor had said that the order for his extradition to Russia had been cancelled. The Czech authorities would, in any case, need the consent of the UK before he could be extradited onwards to Russia – see Extradition Act 2003 s.58. After the Czech proceedings were concluded, the Appellant would be entitled to return to the UK. Should he be returned to Russia, he would be entitled to rely on autrefois acquit or autrefois convict to defeat any further prosecution in that country. iii) He rejected the Appellant’s argument that his extradition would be contrary to Article 8 of the ECHR. He acknowledged that the Appellant’s financial circumstances had changed dramatically: from being a wealthy banker in Moscow he was now unemployed, in straitened circumstances and reliant on state aid. The strain of the proceedings had taken a toll on the mental health of the Appellant and his wife. The couple had four children (aged 8, 9, 14 and 17). He would be entitled to credit for any time in custody pending the Czech criminal proceedings. The Appellant had also spent time in custody pending the extradition requests from Russia. In the UK the Appellant had spent some 19 months in custody while the Russian request was being dealt with. Judge Evans understood the further information provided by Judge Novy to mean that this could be taken into account and might be a reason for reducing any sentence of imprisonment below the 8 year minimum (but not below 3 years). He understood Judge Novy to be saying that the time in custody in England pending the Russian request would be taken into account if documentary evidence confirmed that the Appellant was not, during that period, being held for any other reason. He recognised that there would be hardship for the Appellant and his family if he was deported but concluded that extradition would not be disproportionate in Article 8 terms.

The Appellant’s grounds of appeal

[20]Mr Josse argues that the appeal should be allowed and the Appellant discharged for the following reasons: i) The passage of time means that his extradition would be unjust - Extradition Act s.14. ii) The passage of time means that his extradition would be oppressive - ibid. iii) If returned to the Czech Republic he would be at risk of deportation to Russia and that means it would be contrary to his rights under Article 3 of the ECHR as the First Tier Tribunal held. Accordingly, he should be discharged - Extradition Act 2003 s.21 iv) His return to the Czech Republic would be a disproportionate interference with his rights to private and family life under Article 8 of the ECHR. Again, this means he must be discharged – ibid.

The passage of time and injustice

[21]Mr Josse accepted that we must proceed on the basis that the Appellant would receive a fair trial in the Czech Republic. However, while “unjust” for the purposes of s.14 could include “unfair”, it was not limited to the issue of fairness of the trial which the Appellant would face – see for instance Edita Z v Polish Judicial Authority [2014] EWHC 1242 (Admin) at [12] and Kakis v Government of Cyprus [1978] 1 WLR 779. In this case, Mr Josse argued, the Appellant would be faced with a trial where all the principal prosecution witnesses including the crew of the aircraft and the other passengers were likely to be Russian and very unlikely to travel to the Czech Republic for his trial. The Appellant himself suffered back pains at the time of the flight. He was taking medication which, combined with the alcohol which the Appellant had consumed, meant that his memory of events was incomplete. His wife did not witness the whole of the incident and therefore could not testify to his behaviour throughout. She was anyway reluctant to travel to the Czech Republic.[22]In my judgment Mr Josse has not made out that this bar to extradition applies. It is important to remember that it applies only if the passage of time has had the consequence that the proceedings would be unjust. In this case, it is likely that the crew returned to Russia very shortly after the incident and the other passengers went on to Geneva. There are circumstances in the UK when the prosecution can rely on documentary statements of witnesses who are abroad. Of course that is subject to the defendant’s right to a fair trial, but in the Czech Republic, as much as if he was prosecuted in the UK, the Appellant will be able to rely on the guarantee of a fair trial contained in Article 6 of the ECHR. As I have already observed, Mr Josse does not seek to argue that the Appellant would be deprived of a fair trial in the Czech Republic.[23]It is also right, as DJ Evans commented, that the Appellant has had for many years the statements on which the prosecution is likely to rely. He will have then known for some considerable time the case he will have to meet and have had the opportunity to gather evidence from his family and friends to the extent that they will give a different picture of the incident.[24]The Appellant said his wife would be reluctant to travel to the Czech Republic and so he would not be able to have her testimony. I agree with Mr Caldwell that this reluctance is not explained since she would be able to travel and return within the period of her limited leave. In any case, the Appellant says nothing about why alternative means of putting her testimony before a Czech Court (such as via video link or written statements) would be unavailable.

The passage of time and oppression

[25]Mr Josse argues that it would be oppressive now to try the Appellant because of this incident which took place 7 ½ years ago. The Czech authorities first started their own proceedings, then deferred to the Russians. The Appellant tried, but unsuccessfully, to resist the Russian extradition request in the Czech Republic. He only fled to the UK when he was on the eve of being extradited. Further time was taken up with the Russian extradition request to the UK. As the First Tier Tribunal (and Upper Tribunal) finally established, the Appellant was right to resist these attempts to extradite him to Russia. DJ Evans recognised the Appellant was not a classic fugitive but the District Judge was wrong to attribute responsibility to him for the lapse of time. There was also an unexplained delay of over a year between the consent order quashing the extradition order to Russia (in January 2012) and the issue of the EAW in February 2013. Dilatoriness by the requesting state is relevant to oppression – see Kakis (above) at p. 785. In the years since the incident, the Appellant’s life had been turned upside down and as Lord Scarman put it in Kakis (at p.790) “It is not permissible, in my judgment to consider the passage of time divorced from the course of events which it allows to develop. For the purposes of this jurisdiction, time is not an obstruction but the necessary cradle of events, the impact of which upon the applicant has to be assessed.” Furthermore, the Appellant spent about 19 months in detention in the UK pending the request for him to be extradited to Russia. Under Article 26 of the Framework Decision the Czech Republic would not be obliged to take that into account in his sentence. The District Judge was wrong to interpret the further information from Judge Novy as saying this time would count against his sentence if it could be established by documentary evidence that there was no other reason for his detention during that period.[26]I am not persuaded by these arguments. It is clear that the Czech authorities did begin a criminal prosecution against the Appellant promptly in 2006. They did put those in abeyance while the Russian extradition request was being considered. However, the Tokyo Convention (The Convention on Offences and Certain other Acts Committed on Board Aircraft signed at Tokyo on 14 September 1963) provides in Article 3(1) that the state of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board. By Article 3(2) the state of registration is obliged to take such measures as may be necessary to establish its jurisdiction over offences committed on its aircraft. For that reason and because the crew were based in Russia, there was good sense in the Czech authorities taking the course that they did. It was not oppressive to do so.[27]It is also striking that, while the Appellant was legally represented in the Czech Republic (and on his account spent over $300,000 in resisting extradition from there to Russia), he did not while there claim asylum from return to Russia. The papers before the court refer to him relying in rather general terms on humanitarian reasons for why he should not be returned and why (again in general terms) his extradition would be contrary to his human rights, but Mr Josse accepted before us that DJ Evans accurately recorded the position when he said that the Appellant had not claimed asylum in the Czech Republic. In my judgment, the Appellant was not, therefore, someone who had explored all possible legal avenues and found them wanting before he jumped bail.[28]There was a period of some three years which was occupied by the Russian request for extradition from the UK, but that was a consequence of the UK legal procedures and the Appellant was ultimately successful. The Czech authorities had merely suspended their own prosecution of the Appellant while the Russian extradition requests were being pursued. The Appellant had been represented in the Czech Republic and would, presumably, have been told by his lawyers there that the Czech prosecutor had not abandoned his proceedings. The Appellant, in other words, had not been misled about their status. In addition, Article 3(3) of the Tokyo Convention makes it clear that the Convention does not exclude any criminal jurisdiction exercised in accordance with national law. There was about 8 months between the final end of the Russian proceedings in the UK and the issue of a domestic arrest warrant and a further 6 months before the EAW was issued. Mr Josse is entitled to say that there is no explanation for these periods. However, I would not regard them of such length that either on their own or in combination with the other factors on which Mr Josse relies that it would now be oppressive to extradite the Appellant.[29]I agree with Mr Josse that it is not clear from Judge Novy’s further information whether the period which the Appellant spent in custody in England pending the Russian extradition request would be taken into account in determining his sentence or the time to be served by him in the Czech Republic even if his detention in the UK could be shown to be referable exclusively to the Russian extradition proceedings. The difficulties of language appear to have hampered Judge Novy’s understanding of the question which was asked of him and also make his answer somewhat opaque. But the situation which has arisen here is atypical to say the least. It is unsurprising if no clear answer can be given in advance. While the Appellant would have a good ground for arguing to the Czech court (should he be convicted) that this period ought to be taken into account in fixing his sentence or the time that he serves, I do not think that the apparent absence of a legal right to that effect makes his extradition oppressive.[30]In his skeleton argument, Mr Josse referred to one of Judge Novy’s answers in which he had said, “In this case we can assume an imposition of custody due to the fact that once he was already in custody in the Czech Republic and that he was released on bail in the amount of 1,000,000 CZK, he let the bail expire and fled to the United Kingdom.” Mr Josse had said in his written submissions that this meant the Appellant was bound to be refused bail contrary to Article 5 of the ECHR. In his oral submissions, he abandoned that submission. In my judgment he was right to do so. Mr Josse said that Judge Novy’s answer was still relevant to oppression. However, it is reasonably plain that Judge Novy was not giving an advance decision on the question of bail. He was simply making the obvious point that, if the Appellant applied for bail on his return to the Czech Republic, he would need to explain why he could be trusted to answer to his bail in the future when he had not in the past.[31]As for the other matters on which Mr Josse relied, I come to the same conclusion as the District Judge: there will be hardship for him and his family in consequence of the extradition, but not so as to make the extradition oppressive.[32]In addition, what is alleged against the Appellant is a serious offence. Mr Josse asked us to have regard to the findings made by the First Tier Tribunal about the offence. It seems to me that would be wrong in principle. Those findings were made after the Judge Dineen heard the Appellant and his wife give evidence. We take the evidence which was before DJ Evans. In connection with the seriousness of the offence, Mr Josse did not persuade me that there was a good reason for looking beyond the evidence that DJ Evans considered. The gravity of the offence is irrelevant if there is good reason to fear that the requested person will face injustice following extradition, but it is a factor to be taken into account in deciding whether oppression should bar extradition – see Kakis at p. 784.

Risk of return to Russia

[33]Mr Josse accepted that the Czech authorities had made clear that the order for the Appellant’s extradition to Russia had been cancelled. He did not suggest that the Appellant was at risk of extradition to Russia.[34]However, the Appellant was a Russian national. At the conclusion of the criminal proceedings in the Czech Republic and after he had served any sentence he would have no right to remain in that country. DJ Evans assumed that he would be able to return to the UK. Mr Josse submitted that would not necessarily be so. Currently the Appellant and his wife (and children) had limited leave to remain. Mr Josse told us that would expire on 19th May 2016. That was not in evidence before DJ Evans, but I am willing to proceed on the basis that this is correct. According to Judge Novy the minimum sentence which the Court could pass if he was convicted was 3 years. Necessarily, that would be after 2016. If he was convicted, the Secretary of State might also use the fact of the conviction as a reason to refuse him re-entry to the UK in any event. Even if he was acquitted, the criminal proceedings might not conclude until after his limited leave to remain in the UK came to an end. All of this meant that his right to return to England after the Czech authorities had finished with him was in serious jeopardy. In those circumstances, the only country to which he could be deported would be Russia, his country of nationality. He would then be exposed to the very risks of ill treatment and persecution which the First Tier Tribunal had found to be real. Just as the UK was precluded from returning him directly to Russia, so, too, it could not extradite him if this would lead to a real risk of indirect refoulement.[35]The flaw in this argument is that the Czech Republic, like the UK, is party to the Refugee Convention and the ECHR. Mr Josse referred us to Budrevich v the Czech Republic App no. 65303/10, a judgment of the 5th Section of the European Court of Human Rights. The Court there found that the applicant had been denied an effective remedy for his claim that removal to Belarus would be contrary to Article 3 of the ECHR. However, Budrevich relied only on Article 13 of the ECHR. He had not actually been removed to Belarus. That was because the Strasbourg Court had asked the Czech Republic to stay the removal, pursuant to r.39 of the Rules of the Court and it had complied. In addition, as Mr Caldwell submitted, the Strasbourg Court did not find a systemic failing in the Czech procedures, but only a flawed decision on the particular facts of that case.[36]Mr Josse was constrained to accept that we should proceed on the basis that the Czech Republic would observe its international obligations under both Conventions and would not, therefore, deport the Appellant if there was a real risk that he would face ill treatment contrary to Article 3 on his return to Russia. In those circumstances, the extradition of the Appellant to the Czech Republic does not carry a real risk of refoulement.

Article 8

[37]In her proof, the Appellant’s wife said that she would not be willing to go with him to the Czech Republic. Extradition would therefore separate him from her and from his four children. Mr Josse relied as well on all the factors to which he had referred in the context of oppression.[38]If what the Appellant’s wife says is correct then it follows that extradition will amount to an interference with the Appellant’s family life. However, as is well known, Article 8 is a qualified right and an interference will not involve a violation if it pursues a legitimate end and is necessary in a democratic society. The implementation of extradition arrangements is a legitimate aim. In this, as in so many other cases, the critical question is whether the interference is necessary in a democratic society. In turn that involves consideration of whether it is proportionate. The Supreme Court has emphasised that there is a substantial public interest in carrying out extradition arrangements. The offence for which the Czech Republic wishes to prosecute the Appellant is a serious one, even if it would be an exaggeration to speak of the incident as an attempted highjacking. The Appellant has children and he will be separated from them, at least for a period. However, he is not their sole carer. His wife will be able to look after them. She has had periods of depression, but it is not suggested that she would be incapacitated from looking after the family if the Appellant was extradited.[39]I have considered all the matters relied upon by Mr Josse, but, like the District Judge, I conclude that the Appellant’s extradition would involve a proportionate interference with his private and family life.

Conclusion

[40]For all of these reasons, I would dismiss this appeal.

Lord Justice Fulford:

[41]I agree.