How does the English judicial system permit, on the one hand, an English so-called ‘McMafia’ order - an Unexplained Wealth Order (‘UWO’) introduced under the Criminal Finances Act 2017 - to be made against Azerbaijani national, Zamira Hajiyeva, forcing her to reveal her wealth and how it was obtained, yet, on the other hand, deny Azerbaijan’s request for her extradition. The Chief Magistrate presiding over her case found that: “The combination of a judiciary which is not independent of the executive, lawyers who are punished if they take on cases of interest to the state, the approach of the court and the authorities to Mrs Hajiyeva’s husband’s trial, all lead me to conclude that there is a real risk that Mrs Hajiyeva, whose case is high-profile and sensitive and not a ‘normal’ criminal case, will suffer a flagrant denial of justice”. She ruled that the extradition was incompatible with Article 6 fair trial rights under the European Convention on Human Rights.
Is this purely English juridical elitism? Or is there something else at play? Both cases are being appealed by Mrs Hajiyeva in respect of the UWO - expected to be heard before the end of 2019 - and by the Government of Azerbaijan against the refusal to order extradition. The final word from the English Courts is yet to be uttered.
Mrs Hajiyeva’s case has become notorious as the first UWO case, started in February 2018 with her as the (then) anonymous ‘Mrs A,’ to be tried. Indeed, it is unclear how many UWOs there have been since, as the recipients of such orders may well have chosen to comply with them rather than endure the salacious publicity suffered by Mrs Hajiyeva in contesting hers. The case has become infamous for details such as a £16 million spending spree at Harrods and the ownership of a house worth £11 million in Knightsbridge, arguably London’s most exclusive residential area. All reporting was also lavishly illustrated with multiple photographs of expensive and exotic jewellery said to have been purchased by Mrs Hajiyeva. The intent of the National Crime Agency (NCA), which obtained the UWO, in having used the publicity to warn others as to what they might face and as a deterrent to contesting an order, appears clear.
A key point is that the UWO is an investigative tool and a means to obtain information. It is not a determination that property was obtained as a result of criminal conduct. Rather, it forces the person receiving the order to explain how specified property was paid for. The effect of not doing so is that the property identified in the UWO is presumed to be, or to represent, property obtained through unlawful conduct and so recoverable by the State under the English anti-money laundering regime in later proceedings. The onus then lies on the property owner to overcome that considerable burden by showing the property is not so recoverable. The alternative is to answer the questions and provide the authorities with information to support the case that the property was obtained lawfully, it would then be incumbent on the authorities to show that it was not.
In Mrs Hajiyeva’s UWO case, matters have not reached that stage. Rather, there is a challenge to the essential grounds for the UWO, first on the basis that her husband, as the chairman of a commercial bank, even though a state central bank, was not a so-called PEP - a ‘politically exposed person’ - a concept adapted from EU law, which was a pre-condition for granting an order. He was simply a banker and not covered by the regime at all. That was rejected by the English High Court who affirmed that Mr Hajiyev was a PEP and so was Mrs Hajiyeva as his wife.
The contrast between extradition and UWO proceedings is clearer when considering another of Mrs Hajiyeva’s arguments in the UWO case. On evidence largely to the same effect as was relied on in the extradition case about the conspicuous lack of fairness in her husband’s criminal trial in Azerbaijan, it was argued the court should give no credence to Mr Hajiyeva’s criminal conviction in the context of the NCA’s attempt to show that the income known to be available to Mrs Hajiyeva was unexplained. Expert evidence was called for on the failures of the Azeri criminal justice system and as to how, for example, in Mr Hajiyev’s trial no cross-examination of prosecution witnesses was permitted and the defence was prevented from calling any witnesses of its own. Against that background, it is perhaps unsurprising that the Chief Magistrate rejected the extradition request in the terms that she did on the basis of the evidence she heard before her.
None of that influenced the High Court in the UWO case; the Judge there concluded that he was not persuaded that, on the available evidence, there had been a flagrant denial of justice to Mr Hajiyev. This seems at odds with the Chief’s Magistrate’s finding that there was “striking” evidence of such a risk to Mrs Hajiyeva. The key difference is that the High Court underscored the investigatory nature of the UWO, suggesting that issues about relying on evidence of what Mr Hajiyev had or had not done criminally were for consideration in future proceedings, if and when a decision was taken to recover the property rather than demand information about it.
Notably, both courts concluded there was material to demonstrate criminality independently of Mr Hajiyev’s conviction, with the Chief Magistrate pointing out that Mrs Hajiyeva’s honesty, or otherwise, in spending what she concluded were “ill-gotten gains” was exactly what would be tested in an Azeri court. This was subject, of course, to its being able to dispense justice impartially, and she found there was a high degree of risk it would not.
The two decisions relate to different issues with the application of different tests. But they still leave at least a sense that human rights are not immutable. They count for some purposes, but not for others.
Michael Drury and John Binns are partners at London-based legal firm, BCL Solicitors LLP.
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