On 30 April 2015, in a landmark decision, Judge Christoph Bauer of the Regional Court in Vienna refused to order the extradition of Dmitry Firtash to the US, finding that the evidence was insufficient and, more significantly, that the US request was politically motivated.
Firtash, the most political of the Ukrainian 'oligarchs' was arrested in Vienna in March 2014 following a US extradition request. Bail was set at 125 million Euros (US$178 million).
Behind Mr Firtash's success was an international legal team led by Roger Gherson of Gherson Solicitors, London.
Gherson assembled a team of UK barristers specializing in extradition and human rights protection, with particular expertise in 'political motivation'.
In addition Gherson appointed a US expert lawyer to review the US request. Over the 12 months culminating in the 30 April 2015 court hearing, Gherson led the defence strategy and the development of the political motivation argument.
This unique ruling took place against the backdrop of the ongoing conflict in Eastern Ukraine, and the continuing battle between the USA and Russia for greater influence in the region.
The case has attracted global media attention because of its geopolitical context and Firtash's victory has been reported across major media outlets, including the BBC, Deutsche Welle, Financial Times, New York Times .The latter reported:
"The ruling, by Judge Christoph Bauer of the Landesgerichtsstrasse Regional Court in Vienna, amounted to a scathing rebuke of the Justice and State Departments, and reflected the diminished credibility of the United States authorities, even in the eyes of a European ally".
At a hearing that stretched late into the evening, Mr. Firtash's defense team sought to demolish the American case and discredit the Justice Department's extradition request.
The main thrust of the team's arguments, and the issue that clearly captured the attention of Judge Bauer, was that the case was directed by the State Department in pursuit of larger American foreign policy goals.
In oral arguments, and in testimony by a parade of high-profile witnesses, the lawyers described the American prosecution as an effort to punish Mr. Firtash for his ties to Mr. Yanukovych and his support of Russia, and to sideline him from future political activity in Ukraine.
"America obviously saw Firtash as somebody who was threatening their economic interests", Judge Bauer said, explaining his decision from the bench. But he also said the United States had not provided coherent evidence of a crime either: "There just wasn't sufficient proof".
Financial Times reported:
"The ruling is a major victory for Mr Firtash, who in the witness box described bribery charges related to an Indian titanium venture that never materialised as "absolutely untrue". His defence team accused the US of waging a politically-motivated witch-hunt linked to the continuing standoff over Ukraine".
The Austrian judge ultimately accepted that argument, in an embarrassment to the US that could be seized on by Russia.
At times, the hearing focused heavily on Ukrainian political intrigues and Mr Firtash's claims that the US was trying to sideline him rather than on the Indian business dealings for which justice department officials were seeking to prosecute him.
The Austrian Prosecutor stated that she would appeal the decision.
So the answer to the question posed in the title is 'yes': extradition requests from the United States are capable of being politically motivated and can be defended on this ground.
Gherson has acted internationally and defended politically motivated cases in Cyprus, Czech Republic, Austria, France , Monaco, Germany, Spain, Bulgaria, Serbia, Italy and of course in the UK as well as before the European Court of Human Rights. Latterly the firm has begun acting in a number of EU sanctions cases. The firm is well used to assembling international teams rapidly, devising and coordinating defence strategies and assisting local lawyers with the international law defence arguments and evidence.
The Legal 500 Guide to UK lawyers in which Roger Gherson is noted as a leader in the field, says this about the firm:-
As well as providing full defence representation for those facing extradition proceedings here in the UK the firm has unique experience in assisting its clients internationally. This aspect of its work can properly be said to be unparalleled. Roger Gherson is used to assembling and managing large teams of lawyers in different jurisdictions. Often the firm provides full back-office support for the foreign lawyers and provides the necessary legal expertise they need to effectively defend the case. In the past few years Gherson has assisted clients who have been arrested in connection with extradition proceedings in Austria, France, Italy, Germany, Bulgaria, Cyprus, the Czech Republic and Monaco. In each case the firm has quickly assembled teams of specialist extradition and asylum lawyers both abroad and in the UK and has proactively managed the case, ensuring the best possible outcome. Gherson is now probably the most experienced firm in the UK in this field. The firm has also now developed significant experience in the unusual legal arena of international sanctions cases, and continues to grow its reputation in this relatively new and complex area of law.
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