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By John Helmer, Moscow

Very occasionally it happens that the lie a man tells, or his lawyer, comes back to haunt him.

Here is the judgement in the case of Michael Cherney (Chernoy) v Oleg Deripaska, issued by the UK Court of Appeal on October 3. Not a word of it has appeared yet in the press in London or Moscow.

Deripaska had appealed to the higher court after the trial judge in the High Court, Justice Andrew Smith, ruled in July against his applications for witness protection orders.

Deripaska’s lawyers had claimed before Justice Smith that he wanted to call a list of witnesses to testify for him against Cherney, but they needed to be protected from gangland retribution by having their names kept secret, and their testimony heard either in secret, or with their identities shielded.

This was peculiar from the start, because the witness identifications had been handed over to Cherney’s lawyers from the moment they were listed by Deripaska’s lawyers for the court trial. If he were the gangster Deripaska’s application implied to Justice Smith, then keeping the names secret from public release could provide no protection at all.

In addition, the names had already been leaked into print in Russia, and were thus already widely known. The purpose of applying to the judge for witness orders was thus not practical, but legal – to persuade the judge that Cherney was a gangster, and had threatened Deripaska at virtual gunpoint into signing his name to their shareholding agreement in March 2001. That was the crux of Deripaska’s defence to Cherney’s claims.

As to who was intimidating whom, and for what ends – that was for the London court trial to decide.

Justice Smith ruled: “On 9 April 2012 there appeared on the Russian legal news website ‘pravo.ru’ an article, referring to this litigation as a new ‘Case of the Year’, identified witnesses, including all twelve to whom these applications relate. According to Mr Beazley the article was removed from the website after ‘something like’ two or three days, but it can still be found through internet search engines. Mr Deripaska believes that Mr Cherney or his associates were responsible for this information appearing on the website, but this is denied by Mr Cherney and there is no evidence that he was so responsible: the advisers of Mr Cherney and Mr Deripaska co-operated to have it removed. However that may be, any criminal or other person interested in what evidence is to be given at trial can probably find out either because of this publication or in some other way.”

That likely it was Deripaska doing the leaking, and then castigating Cherney with the gangster claims, is further suggested by a New York court case in March of this year. That was initiated by Quinn Emanuel for Deripaska to compel testimony from a man named Arik Kislin. The US court papers aired the gangster claims already in the UK case file pending before Justice Smith. For their lack of veracity, however, Deripaska’s lawyers were obliged to withdraw their application, and the US judge ordered it suppressed under seal. Nonetheless, it was leaked to the New York Post. The purpose was to generate press allegations that Cherney was a gangster. The Post reporter claimed the story was his own initiative, and that he had struck lucky in getting the court claims before they were sealed.

In London on September 5, Deripaska’s lawyers told a three-judge panel of the Court of Appeal – lord justices Sir Maurice Kay, Sir James Munby, and Sir Kim Lewison — that Justice Smith had erred in dismissing the witness protection request. Deripaska’s first argument was that the witnesses had human rights, including the right to life under Article 2 of the European Convention on Human Rights. Exposing their names in public violated their human rights, the argument ran. Justice Smith rejected that, ruling he would issue a protective order only if Deripaska’s lawyers could show “a real risk that [was] objectively verified and an immediate risk that [was] present and continuing”. The lawyers hadn’t; the judge didn’t.

“That submission,” the Court of Appeal decided unanimously on Deripaska’s appeal to human rights, “is wrong.”

The judgement written by Lord Justice Lewison goes further, pinning responsibility for Deripaska’s claims on his trial lawyer, Susan Prevezer. The October 3 judgement quotes her. “The evidence in support of the witnesses’ expressed fears was given in paragraph 11 of Ms Susan Prevezer QC’s seventh witness statement. She said: ‘Each of the Witnesses referred to above has expressed, either to me or to members of the Defendant’s legal team, genuine concerns about reprisals by the OCGs who have been identified in their evidence and/or whose activities are referred to (directly or indirectly). In particular they have expressed concerns about giving evidence in these proceedings in the event that such evidence is made public and would be amenable for dissemination in Russia. Their concerns, as expressed, are that their evidence would be or may be regarded by these OCGs as damaging or potentially damaging to them; that these OCGs are still active in Russia and that, as a consequence, they or their relatives may be the target of reprisals if their identity and the evidence they give is made public.’”

“She went on to say in paragraph 14 that the witnesses ‘feel extremely nervous about giving evidence in public’ and concluded in paragraph 16: ‘I should make it clear that, to date, none of the Witnesses has stated that he or she will not give evidence unless allowed to do so in private. However, it is possible that this position may change, particularly if there is comprehensive reporting of the proceedings in the Russian media. The present position however is that they have all expressed a firm preference for giving their evidence in private, and there must be a risk that if they are required to give their evidence in open court, they will feel constrained in doing so, and in consequence, the Court may receive less complete evidence than if their oral testimony were taken in private.’”

The Court of Appeal rejected this. The evidence, adjudicated Lord Justice Lewison, “ is at a high level of generality.” That’s judge lingo for attempting to mislead or lie to the court. “None of the witnesses has given direct evidence. It is also notable that none of the witnesses has spoken of a fear of being killed… The principal problem with this submission is that there is no evidence at all to support it.”

A lawyer involved in the Deripaska legal team’s preparations and with Prevezer, uses lawyer lingo: “Whatever case OD [Deripaska] may have had, his lawyers undercut it through made-up defenses. They should have tried to figure out some type of economic dispute over damages. Or an oral modification– an oral modification would have been easy enough. OD could have said the written agreement was somehow subsequently modified. If he was going to lie, he should have lied about something believable.”

As for Deripaska’s efforts to make accusations in public and try the evidence for them in secret, the Court of Appeal added: “justice must be done in public…the very fact that this case has attracted (and will no doubt continue to attract) considerable publicity both here and abroad is itself a powerful pointer towards the public interest in the conduct of the whole trial being public.”

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