Michael Rottman and The Governor of HMP Brixton and The Government of Germany
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moses,LADY JUSTICE HALE |
| Judgment Date | 14 March 2003 |
| Neutral Citation | [2003] EWHC 496 (Admin) |
| Docket Number | Case No: CO/867/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 March 2003 |
[2003] EWHC 496 (Admin)
IN THE SUPREME COURT OF JUDICATURE
DIVISIONAL COURT
ON APPEAL FROM BOW STREET
MAGISTRATES COURT (DISTRICT
JUDGE ELERI REES)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hale and
Mr. Justice Moses
Case No: CO/867/2002
Miss C. Montgomery QC (instructed by Christmas & Sheehan) for the Applicant
Mr J. Hardy (instructed by Crown Prosecution Service) for the Respondents
Introduction
This is the judgment of the court.
The applicant, Michael Rottmann, applies for a writ of habeas corpus ad subjiciendum. He is the subject of an extradition request made by the government of Germany ("Germany"). Following the unification of Germany in 1989, the majority of state-owned businesses in Eastern Germany were placed under the control and ownership of the Treuhandanstalt ("THA"). THA would then sell the majority of businesses to private buyers. Rottmann is accused, with others, of stripping the assets of a company called WBB Wärmeanlagenbau GmbH ("WBB"). THA formed WBB out of a previously state-owned company. Its business had been the installation of electric power and heating facilities. At the time it was privatised it had considerable cash assets (approximately DM 150,000,000) and other allegedly valuable properties.
The applicant, with some of his co-accused, used a company registered in Switzerland, Chematec AG ("Chematec") to purchase the shares of WBB. He and his co-accused were directors of Chematec. On 1 st March 1991 Chematec purchased the shares of WBB from the THA. From that period until 31 st December 1993, WBB was owned by Chematec, which was effectively under the control of companies and trusts of which the applicant was shareholder or beneficiary.
Germany alleges that the applicant, with others, dishonestly purchased the shares of WBB at an undervalue and thereafter dishonestly stripped it of its assets before winding it up in a manner which defrauded its creditors.
It is contended that from the outset that the applicant and his co-accused never intended to run WBB as a going concern. In order to acquire WBB for less than its real value, it is alleged that his co-accused, Langner and Voigt who were directors of WBB's state-owned predecessor, undervalued its assets. In order to pretend that there was an intention to run WBB as a going concern, it is alleged that he and other co-accused misrepresented the financial stability and prospects of Chematec. Having acquired WBB they intended merely to strip its assets for their own personal gain.
Once they had acquired WBB, it is alleged that the applicant and other co-accused used a number of methods to strip it of its assets. Firstly they entered into unnecessary agreements for consultancy services obtaining, by way of substantial fees, remuneration to which they were not entitled. Secondly, it is alleged that they arranged for loans to be made by WBB to PCE Holding AG at terms which were disadvantageous to WBB to enable PCE Holding, of which two of the co-accused were directors, to buy shares in Chematec. Thirdly, WBB sold real estate to Chematec associate companies at less than its true value. Fourthly, WBB purchased worthless assets from Chematec associate companies at inflated prices.
On 14 th March 2002 at Bow Street Magistrates Court, District Judge Eleri Rees committed the applicant on twelve charges pursuant to Section 9(8) of the Extradition Act 1989 (the 1989 Act).
The applicant's central submissions are founded upon this court's jurisdiction, both to review the decision of the District Judge under Section 9(8) of the 1989 Act and under its original jurisdiction to discharge the applicant pursuant to Section 11(3) of the 1989 Act. In particular, in relation to Charges 1–7, he contends that the courts in Germany have concluded that there was no criminal wrongdoing in relation to the conduct which underlies the extradition request. Their decision is the equivalent of an acquittal of the applicant. The applicant further relies upon an expert in German law, Professor jur. Dr Wagner, in relation to the effect of the judgment of the courts in Germany. He further contends in relation to specific committal charges (5,7,8–10) that no offence under English law is disclosed. The applicant also contends that in relation to Charges 3 and 12 no extradition crime is disclosed because the offence of fraudulent trading requires the relevant company to be an English registered company. Finally, the applicant relies upon the lapse of 12 years since the alleged offences which, he contends, renders it unjust or oppressive to return him to Germany.
The statutory scheme
By Section 1(1) of the 1989 Act:
"Where extradition procedures under Part III of this Act are available as between the United Kingdom and a foreign state, a person in the United Kingdom who –
(a) is accused in that state of the commission of an extradition crime….may be arrested and returned to that state in accordance with those procedures".
By Section 2(1) an "extradition crime", for the purposes of the instant application, means conduct in the territory of Germany which, if it had occurred in the United Kingdom, would be punishable with imprisonment for a term of 12 months or more and which, however described in Germany, is punishable under German law for a term of 12 months or more. Thus, the jurisdictional fact that the applicant is accused of an extradition crime must be established and that crime must constitute an offence both in England and in Germany.
Section 7 of the Act identifies the particulars which the requesting company shall be required to furnish (Section 7(2)) and confers power on the Secretary of State to issue an authority to proceed (Section 7(4)). The authority to proceed must identify the offences under United Kingdom law which appear to the Secretary of State would be constituted by equivalent conduct in the United Kingdom (see Section 7(5)). By Section 9(8):-
"Where an authority to proceed has been issued in respect of the person arrested and the Court of Committal is satisfied, after hearing any representations made in support of the extradition request on behalf of that person, that the offence to which the authority relates is an extradition crime, and is further satisfied:
a) where that person is accused of the offence, unless an order in council giving effect to a general extradition arrangements under which the extradition request was made otherwise provides, that the evidence would be sufficient to make a case requiring an answer by that person if the proceedings were the summary trial of an information against him……the court…..shall commit him to custody or on bail
(i) to await the Secretary of State's decision as to his return."
Both Germany and the United Kingdom are signatories to the European Convention on Extradition and an Order in Council (2001 No. 962) has been made. Accordingly Germany is exempted from the obligation to provide the evidence described in Section 9(8)(a) and the District Judge was not required to examine whether there was evidence sufficient to make a case requiring an answer against the accused.
The original jurisdiction of this court is conferred by Section 11(3) which provides:-
"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that
(a) by reason of the trivial nature of the offence; or
(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or
(c) because the accusation against him is not made in good faith in the interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him."
The Committal Charges, the German Charges and the Decisions of the German Courts
The applicant submits that, in order to identify the alleged extradition crimes, it is necessary to look at a warrant of arrest issued by the local court at Tiergarten on 27 th December 1996, a warrant of arrest issued by the Regional Court of Berlin on 23 rd February 2001, designed to override limitation periods in German law, and the decision of the Regional Court (Landgericht) in Berlin dated 15 th January 2002 exercising a criminal jurisdiction and the Civil Berlin Court of Appeals (Kammergericht), a partial judgment executed on 2 nd July 2002. It is, therefore, necessary to examine the United Kingdom committal charges, the German charges disclosed in the warrants of arrest and the decision of both criminal and civil courts in Germany.
(We shall refer to the committal charges as counts, to distinguish them from the charges in the German warrant of arrest). Count 1 of the committal charges alleges a conspiracy to defraud THA by dishonestly misrepresenting the worth of Chematec and undervaluing the assets of WBB so as to conceal the fact that the conspirators never intended to keep WBB as a going concern, but rather to enrich themselves by stripping WBB of its assets. Count 1 reflects German Charge 1. It reads:-
"Charge 1: MICHAEL KARL ROTTMANN, between 29 th day of August 1990 and the 28 th day of February 1991, conspired together with others named KESSLER, HAEBERLIN, LANGNER and VOIGT to defraud the board of management of the Treuhandanstalt by acquiring from it the share holding in WWB Warmeanlagenbau GmbH at a price that was substantially below the true market ...
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