Alexander Ioskevich v Government of the Russian Federation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green,Lord Justice Hickinbottom |
| Judgment Date | 27 March 2018 |
| Neutral Citation | [2018] EWHC 696 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4920/2016 |
| Date | 27 March 2018 |
[2018] EWHC 696 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
Mr Justice Green
Case No: CO/4920/2016
Malcolm Hawkes (instructed by Lansbury Worthington) for the Appellant
Peter Caldwell (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 8th March 2018
A. Introduction
In this appeal the Appellant challenges the decision of District Judge McPhee of the 1 st August 2016 pursuant to which the judge sent the request of the Russian Federation for the extradition of the Appellant to the Secretary of State who then ordered the extradition of the Appellant to serve a sentence of 18 months imprisonment in Russia for an offence of fraud. The Judge arrived at his conclusion taking into account assurances provided by the Russian Federation as to the identities of the pre-trial detention facility and the post-trial penal colony in which the Appellant would be held were he to be extradited. Permission to appeal on two grounds was granted by Gross LJ and Ouseley J on 24 th January 2017. The two grounds are that extradition would infringe Articles 3 and 6 ECHR.
The ground of appeal pursuant to Article 3 focuses upon conditions in pre and post-trial custody in Russia. An additional argument is premised upon alleged inhuman conditions in transit in Russia. It is said that information and assurances provided by Russia as to custody facilities are not to be trusted and that it cannot be assumed that the Russian Federation would act in good faith in implementing the assurances it has given.
The grounds based upon Article 6 ECHR are to the effect that the case advanced against the Appellant before the Criminal Courts in the Russian Federation is discriminatory and selective and initiated on behalf of an influential businessman. It is said that the criminal justice system is tainted and corrupt and the Appellant would be denied a fair trial.
The Russian Federation seeks the extradition of the Appellant to enforce a sentence of 18 months imprisonment imposed upon him on 27 th June 2014 for an offence of fraud. The proceedings against the Appellant had originally commenced as an Accusation Request dated 16 th December 2013. That request was certified by the Secretary of State pursuant to section 70 of the Extradition Act 2003 ( EA 2003) on 19 th December 2013. During the course of the extradition process, criminal proceedings in the Russian Federation continued which resulted in the conviction of the Appellant. It is not disputed in the present proceedings that he is a fugitive from justice. Following conviction, a second request dated 19 th August 2015 was certified on 2 nd September 2015. It was agreed that the Appellant would be entitled to a retrial should he seek one upon his return to the Russian Federation.
B. The Alleged Fraud
The request sets out adequately the particulars of the conduct said to amount to criminal proceedings in the Russian Federation. It specifies an extradition offence. Neither of those propositions is in issue.
The conduct in issue is described in the judgment of the Pervomaisky District Court. Both the Complainant (Mr Kovalev), the Appellant, and his business partner (Mr Dorshenko) were interviewed by investigators. Summaries of their accounts are set out in the judgment of the District Court. The Appellant was the General Director of a company named “Dionis” and his deputy was Mr Dorshenko. It appears that the Appellant, through Dionis, was involved in negotiations to undertake a construction project to build residential properties for employees of the Ministry of Internal Affairs in the Krasnodar region of the Russian Federation. One component of the contract was that Dionis would demolish and rebuild and then equip a medical “polyclinic” in the area.
The Complainant, Mr Kovalev, was the First Deputy Director of a company called “InzhStroyMontazh” (“ISM”).
The core allegation was that the Appellant agreed to give ISM, as sub-contractor, the construction work for the polyclinic upon condition that it provided as security for their participation in the project a bond in the sum of 4 million roubles. It appears that it was a condition of the provision of the 4 million rouble bond that Dionis would produce documentation establishing that it had been contractually engaged to perform the construction work and had the necessary permissions to proceed. In the event that this proof was not forthcoming Dionis was under an obligation to return the security. On the 19 th September 2011 ISM duly provided the bond to Dionis. However, the requisite documentary proof to be furnished by Dionis never transpired. Dionis did not, however, return the money and the allegation was that the Appellant had appropriated then dissipated the funds for his own personal ends.
The request issued by the Russian Federation describes an account given by the Appellant himself to investigators. This account indicates that the Appellant became aware of the construction project and the opportunity that it presented to Dionis. He organised for investors from the UK and an engineer to visit the site. He agreed that ISM was to be offered the sub-contract. He also acknowledged that Dionis was under an obligation to repay the bond in the event that it was unable to provide the required documentation. He apparently acknowledged further that Dionis was unable to repay the bond for lack of funds.
Mr Dorshenko, the Appellant's colleague in Dionis, also provided a statement to investigators. He, likewise, acknowledged there was an obligation to return the 4 million roubles upon it becoming clear that the contract could not proceed. He also accepted that the money was not available. He could not, however, account for its whereabouts.
Although the conduct arises in the course of business dealings it is the position of the Russian Federation that the request concerns a criminal allegation of fraud, and not merely a private law dispute. It is said that the Appellant received the 4 million rouble bond knowing, upon receipt, that he did not have the contract in place which he could certify and thereby avoid the obligation to repay the bond.
The Pervomiasky District Court concluded as follows:
“Having weighed the provided evidence in total, the court considers that actions of the defendant Loskevich A. E. have been qualified correctly as stipulated by Part 4 Article on 60th Criminal Code of the Russian Federation as misappropriation, that is stealing of other peoples property entrusted to the convicted person, in connection with duties of office, on an especially large scale.”
The ruling of the court is to be construed as a finding of dishonesty. Dionis was, at all material times, liable to return the bond to ISM. The money was held by Dionis and therefore by the Appellant in a position of trust. The conduct would constitute an offence under English law of fraud by abuse of position contrary to section 4 of the Fraud Act 2006.
C. The judgment of the District Judge
The approach adopted towards the evidence
I turn to the judgment of District Judge McPhee. The Judge set out his conclusions on the grounds advanced before him in considerable detail. In view of the arguments advanced on the appeal I start this part of the judgment by describing the approach adopted by the Judge towards the evidence.
The Judge heard evidence from a wide variety of sources. He, in particular, received expert evidence on the criminal justice system in Russia. I can summarise the evidence in the following way. Professor Morgan was jointly instructed by the requested person and by the requesting authority. He is said by the Judge to be a leading authority on prison conditions across the world and especially in Europe. He had previous experience of visiting prisons in Russia. In June 2016 he visited two prisons named in assurances provided by the Russian Federation as facilities where the Appellant would be detained. Professor Morgan gave live evidence before the Court. Expert evidence was also provided by Professor Bowring for the Appellant. According to the description of qualifications and experience attached to his expert report he has considerable experience of the Russian judicial system. He did not however visit the prisons in issue. He has given evidence in cases involving Russian interests in the domestic courts on previous occasions. The Judge also heard evidence from the requested person. He took into account institutional material and reports from bodies such as: the European Committee for the Prevention of Torture; a committee on Legal Affairs and Human Rights from the Parliamentary Assembly of the Council of Europe; and, the US State Department Country Practice annual report on Russia. The Judge also took into account a body of more anecdotal evidence relating to the justice system and prison conditions in Russia including from newspapers and other articles and literature.
I turn now to the details of the expert evidence of Professor Morgan. He expressed his opinion that both the pre-trial detention facility and the post-conviction penal colony were Article 3 compliant. Professor Morgan had visited the pre-trial detention centre and penal colony that the Appellant would be detained in were he to be extradited. The Judge addressed the experience of Professor Morgan to make assessments of compliance by the Russian state, through its judicial system and penal conditions, with the ECHR. He examined Professor Morgan's evidence in the context of submissions that in effect he had been hoodwinked by his “ minders”, during his visit to the prisons in question. The Judge was...
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