Vladislav Anatolyevich Dudko v The Government of the Russian Federation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffith Williams,Lord Justice Thomas |
| Judgment Date | 19 May 2010 |
| Neutral Citation | [2010] EWHC 1125 (Admin) |
| Docket Number | Case No: CO/2831/2009,CO/2831/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 May 2010 |
[2010] EWHC 1125 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Lord Justice Thomas
and
Mr Justice Griffith Williams
Case No: CO/2831/2009
Mr Alun Jones QC and Mr Rupert Bowers (instructed by Messrs Clarke & Hartland) for the Appellant
Mr Timothy Otty QC and Ms Melanie Cumberland (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 30 March 2010
Lord Justice Thomas:
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.
Before turning to the issues it is necessary to summarise the background briefly.
The factual background
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.
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
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
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.
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
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.
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.
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.
We turn to consider each of the issues in turn.
Issue 1: Were the particulars of the offences sufficiently specified?
(i) The test to be applied
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?”
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).
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.”
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”.
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
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
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....
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