The West does not seem to realise the trend whereby bad-faith Russian cases brought by the Russian state and oligarchs leverage trumped-up charges in Russian courts to harass and damage opponents and rivals in western legal proceedings, writes Daniel Mitov.
Daniel Mitov is a former minister of foreign affairs of Bulgaria.
Even during a pandemic, human rights and the rule of law matter and deserve our attention.
Like many, I was shocked and disappointed when a Swiss Federal Prosecutor recently decided to share with Russia highly sensitive testimony and witness statements relating to the death of Sergei Magnitsky, a Russian lawyer who uncovered huge tax fraud orchestrated by the Russian authorities in 2007 against his client, Hermitage Capital Management.
The decision would enable Russia to obtain information to help it build a fabricated court case against Bill Browder, the CEO of Hermitage Capital Management. The Swiss decision flies in the face of four resolutions by the Council of Europe, of which Switzerland is a member, as well as decisions by Interpol that have condemned Russia’s attempts to manipulate European judiciaries.
This is not an isolated incident, but a recent example of a trend whereby bad-faith Russian cases brought by the Russian state and oligarchs leverage trumped-up charges in Russian courts to harass and damage opponents and rivals in western legal proceedings, including in Britain and the US.
Such abuses of western legal systems are typically used to carry out one of three objectives: to silence and punish a critic or political opponent, to carry out a corporate raid (or reiderstvo as it is known in Russia, i.e. the hostile takeover of a business using illegal tactics), or to settle a score against a personal enemy.
This always begins with obtaining a ruling in a Russian proceeding against the target. This is usually the easiest part: as the recent case of Sergei Davydov has shown, corruption among magistrates and local law enforcement is endemic in many parts of Russia.
Armed with the tailor-made Russian court ruling, the attacker then goes to a western government or court and requests that it take action against the victim based on the Russian court ruling.
If the case in Russia concerns (trumped-up) criminal charges, one common option is to use mutual legal assistance treaties to obtain information about the victim, search their property, freeze their assets, or even extradite the victim back to Russia.
Another option is to issue an international arrest warrant through Interpol, which effectively instructs law enforcement authorities around the world to arrest the victim and extradite them back to Russia. Browder has been a victim of this type of arrest warrant no less than seven times.
In civil and commercial cases, the most common approach is for the attacker to approach the relevant western court asking that the Russian court ruling be recognised, based on national or international rules.
While such recognition can be rejected if the judge determines that the Russian judgement was obtained by fraud, western judges often have limited time and ability to make such assessments, and sometimes assume the foreign judgement is valid.
One such case involved SPI, the company that owns Stolichnaya vodka. The Kremlin wanted to take over the Stolichnaya trademark, and therefore first secured a ruling in a Russian court.
It then went to the Netherlands and asked that the Russian decision be recognised there to extend Russian control of the brand across Europe. This attempt was successful: the Dutch court largely based its ruling on the earlier Russian ruling.
Of course, efforts by Russian entities to abuse western courts are not always successful, and in some cases the victim can even fight back. For example, an Irish court last year issued a default judgment against an individual and company involved in a well-known conspiracy to illegally take over TogliattiAzot, one of the largest fertilizer companies in Russia.
Ultimately, the ability of malicious Russian actors to exploit the British and other western judicial systems varies greatly depending on the ability and the knowledge of the judge in each case. When a judge is aware of the endemic corruption in Russia’s judiciary and law enforcement, there is less risk that a bad-faith Russian effort will succeed.
Ongoing guidance from governments, as well as cooperation with human rights groups and civil society, is therefore essential to prevent international judicial cooperation from being used by Russia and its agents to abuse western legal institutions.