Khurts Bat v The Investigating Judge of the German Federal Court The Government of Mongolia (1st Interested Party) The Secretary of State for Foreign and Commonwealth Affairs (2nd Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Foskett,MR JUSTICE McCOMBE |
| Judgment Date | 29 September 2011 |
| Neutral Citation | [2011] EWHC 2029 (Admin),[2010] EWHC 2970 (Admin) |
| Docket Number | CO/3672/2011, CO/1655/2011,Case No: CO/3672/2011 AND CO/1655/2011,CO/11222/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 September 2011 |
[2010] EWHC 2970 (Admin)
Before: Mr Justice Mccombe
CO/11222/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr R Bowers (instructed by JD Spicer) appeared on behalf of the Claimant
Mr A Watkins (instructed by the CPS) appeared on behalf of the Defendant
(As approved)
: This is an appeal against refusal of bail by the District Judge at the Westminster City Magistrates' Court in the context of extradition proceedings brought against Mr Bat Khurts. The extradition proceedings are initiated by a court in the Federal Republic of Germany in respect of allegations of kidnap committed initially in France, and continuing to be perpetrated in Germany, where a person apparently wanted in Mongolia (of which Mr Khurts is a citizen) was seized in France, then taken to Berlin and drugged, put on a flight to Mongolia and then returned to his own country.
Mr Khurts does not apparently deny any of this, and the documents that have been put in on his side, and indeed from the government, do not seek to say that the events did not take place. What is said is that when Mr Khurts arrived in the United Kingdom, this was known to the British authorities. There have been negotiations both in Mongolia and possibly here for discussions about inter-country co-operation in relation to possible security matters.
It is said in the helpful skeleton argument submitted by Mr Bowers for Mr Khurts, that Mr Khurts was in effect invited to this country to continue discussions here. He travelled to the knowledge of the British authorities on a diplomatic passport for that purpose. On his arrival in this country he was arrested on the basis of the European arrest warrant and bail is now opposed on the basis that he is unlikely to surrender, or there is a substantial risk that he will fail to surrender to bail for the purpose of the extradition proceedings. The submission is made that the charges are serious and they will attract a heavy sentence if substantiated, and they do not seem to be denied, of up to 15 years' imprisonment in Germany, and that the conduct of which complaint was made in France and Germany was undertaken at the request of the Mongolian state.
In those circumstances Mr Watkins for the judicial authority submits that this court can have no confidence in the assurances offered by the state in procuring the attendance of Mr Khurts at the extradition proceedings. There has also been produced to me a letter of 28 October 2010 from the Foreign and Commonwealth Office to those instructing Mr Bowers in which, after dealing with any suggestion that the British authorities acted improperly in any way, or that it had misused ordinary diplomatic courtesies, goes on to say:
“As we have made clear before, the defendant was not invited to the United Kingdom, nor was he granted any appointments, by Ministers or officials of Her Majesty's Government”.
In the circumstances I give little credence to what is said in support of the bail application. Mr Bowers has argued his case with care and assiduity, and I am grateful to him for that. As I indicated to him in argument, I consider that this is a hopeless case for bail. The temptation to flee must be obvious and the acts of which complaint is made demonstrate, beyond peradventure, that this applicant has the means and capacities to fulfil that temptation to flee. This application, or appeal as it may be, is refused.
and
and
[2011] EWHC 2029 (Admin)
Lord Justice Moses
Mr Justice Foskett
Case No: CO/3672/2011 AND CO/1655/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Alun Jones QC for the Appellant and Sir Elihu Lauterpacht QC for the Government of Mongolia (instructed by J D Spicer & Co)
Mr Aaron Watkins for the German Judicial Authority (instructed by The Crown Prosecution Service) and Sir Michael Wood and Ms Clair Dobbin for the Foreign and Commonwealth Office (instructed by The Treasury Solicitor)
Hearing dates: 23 rd and 24 th June 2011
Introduction
On 18 February 2011 District Judge Purdy ordered the extradition of the appellant, the Head of the Office of National Security, Mongolia. His extradition was requested by the Federal Court of Justice in Germany by virtue of a European Arrest Warrant certified by the Serious Organised Crime Agency on 13 April 2010. This is an appeal pursuant to s.26 of the Extradition Act 2003. District Judge Purdy rejected the two grounds on which, at that time, extradition was resisted. He rejected the appellant's claim that he was entitled to immunity on the ground that he was visiting the United Kingdom on a Special Mission and rejected his claim to be entitled to immunity on the grounds that he held high-ranking office. This appeal is pursued on four grounds:-
1. That Mr Khurts Bat enjoys immunity in customary international law because at the time of his arrest, on 17 September 2010, he was visiting the United Kingdom on a Special Mission on behalf of the Government of Mongolia, a mission consented to and encouraged by the United Kingdom;
2. The extradition proceedings are an abuse of process;
3. At the time of arrest he was representing his Government as a very high-ranking civil servant;
4. The crimes he was alleged to have committed in respect of which his extradition was sought were official acts committed by him on the orders of the Government of Mongolia and, accordingly, he is entitled to immunity both in Germany and in the United Kingdom.
This fourth ground was not advanced before the District Judge. I should add that the appellant has advanced a separate application for habeas corpus. At the time those proceedings were launched neither the Foreign and Commonwealth Office nor the Government of Mongolia were interveners. Both now intervene and have produced evidence on which they seek to rely. In those circumstances, whilst Mr Alun Jones QC, on behalf of the appellant, does not withdraw this application, he advances no reason as to why it is necessary to pursue it. The defendant and counsel acting for the Home Department wish to contend that this court has no jurisdiction to hear such an application by virtue of s.34 of the 2003 Act. There is no need to reach any conclusion as to this issue.
Facts
It is necessary to set out some of the facts leading to the arrival of the appellant in the United Kingdom on 17 September 2010. They are relevant to the issue of whether he is entitled to immunity because he was travelling on a Special Mission and the argument that the extradition proceedings amount to an abuse of process. But I should make it clear at the outset that the FCO contend that a letter sent to the District Judge dated 12 January 2011 from the Director of Protocol is conclusive as to the facts it asserts and this court must accept those facts. I should add that it would, in any event, be necessary to consider the facts for the purposes of ruling on the argument as to abuse of process.
The European Arrest Warrant asserts that the offences were committed between 14 and 18 May 2003 at Le Havre, France/Berlin, Germany. The warrant states:-
"Facts:
On 14 May 2003 the accused Khurts Bat and three other unidentified members of the Mongolian secret service attacked the Mongolian national Enkhbat Damiran, kidnapped him and abducted him to Berlin. On 18 May 2003, they took him by plane to Mongolia where he was imprisoned.
Further details: At the latest at the beginning ( sic) of 2003 the Mongolian Security Agencies decided to mandate the Mongolian secret service to bring the Mongolian national Enkhbat Damiran, who lived in France, back to Mongolia by using force. Enkhbat Damiran, was accused of having been involved in the assassination of Mr Zorig, the Mongolian Minister of the Interior, on 2 nd October 1998.
Bat Khurts Bat, who worked at the Mongolian embassy in Budapest, was entrusted with this mission. Based on information provided by Mongolian nationals who also lived in France, Khurts Bat established the whereabouts of Enkhbat Damiran and lured him to a meeting. When Enkhbat Damiran arrived at the agreed place in Le Havre on 14 May 2003, Bat Khurts Bat and his three companions kidnapped him and took him, after a stopover in Brussels, to the Mongolian embassy in Berlin. There, Enkhbat Damiran was kept imprisoned in a basement flat where he was repeatedly drugged by injection. On 18 th May 2003, Bat Khurts Bat and his companions took him to Tegel Airport in Berlin. They managed to get the drugged and wheelchair-bound Damiran through passport control by using a diplomatic passport and flew with him to Ulaan Baator. After his arrival Enkhbat Damiran was imprisoned and questioned about the assassination. The investigations against him have been stopped. At present he is serving a prison sentence."
The offences were certified as abduction and serious bodily injury. The Warrant stated that the appellant did not benefit from immunity in the Federal Republic of...
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