CASE SUMMARY: The Republic of Azerbaijan v Zamira Hajiyeva

Background facts

The Republic of Azerbaijan (“Requesting State” or “RS”) sought the extradition of Zamira Hajiyeva (“Requested Person” or “RP”) to face prosecution for charges of conspiracy to defraud or embezzlement. The request is governed by Part 2 of the Extradition Act 2003 (“the 2003 Act”) and the RS was not required to show a prima facie case.

The RP’s husband (“H”) is the former chairman of the largest bank in Azerbaijan (“the IBA”). H was convicted of numerous offences including abuse of office, large-scale fraud and embezzlement in connection with the bank. The RP was alleged to have been a co-conspirator in respect of these offences.

Grounds for resisting extradition

Resisting the request, numerous grounds were raised on behalf of the RP, including:

1. that there were insufficient particulars of conduct to satisfy section 78 of the 2003 Act;
2. that the allegations formed part of a political campaign directed by a corrupt regime against the RP’s husband and were contrary to sections 81(a) and 81(b) of the2003 Act;
3. that there was a real risk of an unfair trial contrary to Article 6 of the European Convention on Human Rights (“the Convention”); and
4. that the prison conditions breach Article 3 of the convention.

Evidence of Witness A

In support of the defence’s submissions, counsel for the RP applied to the court to rely on the evidence of an anonymous witness (“Witness A”). Witness A was a practicing lawyer in the RS and was able to speak about whether the various changes to the judicial system in the RS were working in practice. Witness A expressed great fear at the prospect of his identity becoming known to the RS. He and his family reside in Azerbaijan and he stated he feared they would face retribution. Counsel for the RS resisted the admission of Witness A’s evidence.

Allowing Witness A to give evidence anonymously, the court noted that while the RS would be at a disadvantage when questioning the witness, it would be possible to examine the witness about whether he knew RP or her family and to ask questions about his experience in the criminal courts.

On the face of it Witness A had important evidence to give, being able to speak from his own experience of the justice system. The court was satisfied that Witness A was in genuine fear for his own and his family’s safety and to exclude his evidence would cause prejudice to RP. In these exceptional circumstances the court using its inherent powers allowed for the witness to give evidence anonymously.

Court’s decision and reasoning

1. Rejecting Ground 1, the court held that there was sufficient evidence of an agreement and evidence of the RP’s alleged involvement in the conspiracy. There was evidence from which dishonesty could be inferred, thus, there existed sufficient evidence of conspiracy to defraud. A stronger case yet existed in respect of the conspiracy to launder the proceeds of crime and money laundering allegations. There was no explanation for the money that the RP spent. Her defence would be that she had no knowledge or suspicion that the money was the benefit of criminal conduct but that was a matter for trial. The requirements in section 78 and section 137(3) EA 2003 are met.
2. On Ground 2 the court considered the approach set out in Gomez [2000] INLR 549 holding that even on a generous interpretation of the arguments regarding political motivation there was insufficient evidence of any political reasons forming part of the prosecutor’s motives in this case. There is no evidence the RP or her husband played any role in politics or held any opinion inconsistent with that of the government. The request was not made for political purposes but rather because the RP’s husband defrauded the IBA of a large amount of money, a conspiracy to which she was alleged to have been party. While there was evidence of state interest in the case the defence failed to show that the RP might be prejudiced at trial as a result of her political opinions. The challenge under section 81(a) failed.
3. On Grounds 3 and 4 the court first considered the Article 3 arguments. The RP relied on evidence from Commission for the Prevention of Torture (“CPT”) reports as well as two experts with knowledge of the RS’s prison system. The RS had given assurances in respect of the RP’s detention conditions. Doubt was cast on the reliability of these assurances by the defence. The court considered that if the assurances were complied with then the prison conditions would not breach RP’s Article 3 rights. The court considered that Azerbaijan tended to comply with international mores when it was to their advantage. In a case of this high profile a failure to comply would be widely reported. Azerbaijan had recently opened its prisons to the CPT and published their reports; this was an encouraging shift. Despite some reservations the court concluded that the assurances of RS could be relied on and the Article 3 challenge failed.
4. Finally, the court considered the Article 6 arguments. The defence submitted the case for discharge under Article 6 was overwhelming: the RS’s judiciary was not independent, defence lawyers in high profile cases were pressurised by the state and conviction is a foregone conclusion. The court considered three strands of evidence in reaching its conclusion on this point and found that the combination of a judiciary which was not independent of the executive, lawyers who were punished if they took on cases of interest to the state, and the approach of the court and the authorities to H’s trial, all lead to a conclusion that there was a real risk the RP would suffer a flagrant denial of justice. The assurances of RS in this sensitive and high-profile case were insufficient to allay the court’s concerns.

Thus, the RP’s extradition was not compatible with Convention rights within the meaning of the Human Rights Act and under section 87(2) of the EA 2003. The court discharged her.