The English High Court’s judgment in the case of Michael Cherney v Oleg Vladimirovich Deripaska  EWHC 1530 on 3 July 2008, was highlighted by the press for its arguably unprecedented admission of jurisdiction in cases where there is proof of a risk that justice would not be delivered in the natural jurisdiction for the case.
The main question the Court had asked itself pertained to the test that had been established in previous cases for the admittance of the English courts’ jurisdiction in cases that have almost no connection at all to the UK. The pertinent question being: Would justice be put at risk if the claim were not heard in the UK? In other words, is there an adequate alternative forum elsewhere to consider the case?
The presumption being that the most closely connected jurisdiction, Russia, should try the case. This presumption in favour of the natural legal forum had to be rebutted by proving that the natural jurisdiction would gravely violate the right to a fair trial and thereby another jurisdiction can and should try the case for the collective interests of avoiding such injustice. However, a more alarming question is whether the UK could interfere without opening a set of very dangerous floodgates, and appointing itself as an international complaints bureau for all procedural injustices in other countries.
To substantiate its conclusions the court brings forth the opinions of a number of prominent experts, who have not only studied the Russian judicial arm extensively, but have both suffered and benefited from it professionally and personally. The experts pay particular attention to the recent appointment of judges to the courts by Putin’s administration, the proceedings in the Yukos case and the ‘serious and systematic’ problem of corruption in the judicial system, which is ridden with political interference:
“Like other officials in Russia, the justices are susceptible to influence within a society that assumes policies are set at the top. Putin’s suggestions undoubtedly trickle down through the judicial hierarchy. [para 208]
The Russian Executive uses the courts to pursue its agenda just as it did in the Soviet era. The system is still deeply entrenched in the mindset of that era. A large number of judges were appointed before the collapse of the Soviet system and most of the remainder before the latest reforms. In cases which concern the interests of the State they very often defer to the wishes of the executive.” [para 211]
More so, there is also a culture of commencing criminal proceedings by the State against individuals whom it sees as a political threat, in most cases without any evidential grounds:
“The use of criminal prosecutions (or the threat of them) as tools in a power struggle with rivals was a feature of Soviet Russia. The pattern has continued and has a new name: “zakaznye dela” (“prosecutions to order”). In 2004 the ECHR in Gusinsky v Russia found that the Russian authorities had, in violation of Article 18 and 5, commenced a criminal investigation and deprived Mr Gusinsky of his liberty, not on suspicion that he had committed a criminal offence, but in order to intimidate him as part of a commercial bargaining strategy, namely to induce him to sell his media business to Gazprom on unfavourable terms. The Central Magistrates Court in Madrid refused the Russia Government’s attempt to extradite Mr Gusinsky from Spain on a similar basis.” [para 213]
Most critically, Justice Christopher Clarke allocates particular attention to making the following alarmingly discernible:
“I should make it clear what I am not deciding. I am not deciding that a fair trial can never be obtained in the Russian arbitrazh system. On the contrary I do not doubt that there many honest and good judges in the system at every level, who conscientiously seek to do justice according to the relevant legal principles and procedures, who are developing the arbitrazh system to relate to the commerce of the new Russia, and who do so without improper interference. Nor is it the case that in the arbitrazh courts the State is practically bound to succeed (para 247)…I do however regard there as being a significant risk of improper government interference if Mr Cherney were to bring the present claims in Russia, where they would be very high profile proceedings indeed, such that substantial justice may not be done to him if he is required to proceed there. I am not satisfied that, if he is so required, justice will be done. [para 248] [emphasis added]
Furthermore, Justice Clarke extends the applicability of this evolutionary judgment by holding as follows:
“Even if England is not the natural forum, the claimant may establish — the second stage — that substantial justice will or may not be done in the natural forum so that justice requires that the case be tried in England. If he does so then the case cannot be tried there more suitably in the interests of the parties and for the ends of justice, and England will be the proper place.” [para 252]
In its final paragraph the Court upholds, despite its qualifying remarks in paragraphs 247-248, made arguably in order to avoid, rather diplomatically and in contradiction with its conclusions, any sweeping statements with regards to the quality of the Russian judicial system:
“Taking all those considerations into account, I am persuaded that the risks inherent in a trial in Russia (assassination, arrest on trumped up charges and lack of a fair trial) are sufficient to make England the forum in which the case can most suitably be tried in the interests of both parties and the ends of justice and, accordingly, the proper place for the determination of this claim.” [para 264] [emphasis added]
Although it could be suggested that the Court makes considerable efforts to limit the application of its normative submissions to other cases in restricting its conclusions on the availability of a fair trial to the specific facts at hand, this case will unquestionably have far-reaching implications not only from a legal perspective but more imminently from a political one. What many have not failed to recall is that the UK depends heavily on the energy supplies that come from Russia for the sustenance of its economic power both in Europe and internationally.
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