Peter Von Der Pahlen v The Government of Austria
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON,MR JUSTICE WALKER |
| Judgment Date | 27 June 2006 |
| Neutral Citation | [2006] EWHC 1672 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3946/2006 |
| Date | 27 June 2006 |
[2006] EWHC 1672 (Admin)
Lord Justice Dyson
Mr Justice Walker
CO/3946/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
MR MARK SUMMERS (instructed by Hallinan, Blackburn, Gittings & Nott) appeared on behalf of the CLAIMANT
MS EDINA EZEKIEL (instructed by the CPS) appeared on behalf of the DEFENDANT
On 16 March 2005 a European Arrest Warrant ("the warrant") was issued by the Leoban High Court in the Republic of Austria against the appellant. Before I come to the terms of the warrant, I need to say something about the appellant and the background to this case. What follows is largely based on the appellant's witness statement.
The appellant is a 40 year-old German national and an engineering graduate. He is a specialist in the marketing, sale and construction of environmentally-sound family houses. He is the managing director of My Home Is My Castle Limited ("MHIMC"), a company which was incorporated in the United Kingdom on 4 December 2003 and is based in Pembrokeshire. He has lived in Wales since October 2002, having moved there from Austria with his wife and four children to set up a new business venture. On 4 September 2002, he had set up and incorporated in the United Kingdom Dr Livingstone & Feuker Limited ("Livingstone") for the marketing, sale and construction of environmentally-sound houses in the United Kingdom, Germany and Austria. On 14 March 2003, he resigned as director, and Wolfgang Ochmann was appointed in his place. This arrangement lasted until 9 July 2003 when Mr Ochmann left Livingstone, following a police report in the United Kingdom, Germany and Denmark that he had stolen €30,000 from the company. The appellant thereupon resumed his role as director —indeed as managing director.
Following the theft, shareholder confidence evaporated and Livingstone collapsed. The shares were transferred to a holding company, Red Dragon Administration Limited, which was incorporated as a limited company in the United Kingdom on September 2003.
The appellant, together with Wolfgang Sikora, who is an experienced surveyor, decided to start another business, and on 25 October 2003, incorporated Dragon Bau GmbH in Austria. The appellant was registered as a temporary director. Dragon Bau took over Livingstone's work in progress. It was intended that Dragon Bau would operate in Germany and Austria under Mr Sikora's direction, and that MHIMC would operate in the United Kingdom under the control of the appellant.
The appellant ceased being a director of Dragon Bau and became an adviser to the company on 30 December 2003. On 28 June 2004, Mr Sikora was dismissed as company director of Dragon Bau and replaced by Ms Prudovic. In October or November 2004, an official complaint was first made against the appellant in relation to offences allegedly committed by him in 2003. The Leoban Public Prosecutor and the Leoban High Court conducted a comprehension investigation into the subject matter of the complaint. This led to the issue of court proceedings against the appellant on 29 December 2004 and the issue of the warrant.
The warrant relates to three alleged charges. It includes the following:
"Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person.
(1) Peter von der PAHLEN is urgently suspected of having committed the offence of severe and professional fraud according to ss. 146, 147/3, 148, 2nd case Austrian Criminal Code by being the director of DR LIVINGSTON & FEUKER LTD in the period between 25/10/2003 and 30/12/2003, first as a managing director according to trade law and then as an actual director. In this capacity acting with fraudulent intention as of the year 2003 in Lower Austria, Vienna and Styris, intending to enrich himself unlawfully through the behaviour of the deceived persons and to receive a continuous income by repeatedly committing frauds
a) by deceiving various persons willing to buy a house pretending to sell single family houses thus making them pay advance payments,
b) by deceiving various companies on facts, that is by pretending to arrange for
building contracts, delivery of materials and making professional construction works seducing them act in a way that damaged them on their property to a total amount exceeding €50,000.
(2) Moreover, Peter von der PAHLEN is urgently suspected of having committed the crime of dishonest dealings according to s. 153/1 and /2 Austrian Criminal Code by having misused his authorization to dispose of foreign property in the period until October 2003 in Gänserndorf and Mistelbach acting as a director of DR LIVINGSTON & FEUKER LTD and as of 25/10/2003 acting in his capacity as a managing director and authorized signatory of DRAGON Bau GmbH, by taking unjustified money from the business account of DRAGON Bau Gmbh at the ERSTE BANK in 2130 Mistelbach in favour of My Home Is My Castle Limited, Clifford Administration Limited and Paris London Limited, or had intended to take it, thus causing a damage to DRAGON Bau Gmbh exceeding €50,000.
(3) Moreover, Peter von der PAHLEN is urgently suspected of having committed the crime of faked bankruptcy according to s. 156/1 and /2 Austrian Criminal Code by having taken the payments for works from some customers in the period until October 2003 in Gänserndorf and Mistelbach acting as a director of Dr LIVINGSTON & FEUKER LTD and as of 25/10/2003 acting in his capacity as a managing director and authorized signatory of DRAGON Bau GmbH, and then invoicing the DRAGON Bau GmbH partially with claims of suppliers from these works, thus pretending non existing liabilities of DRAGON Bau GmbH, and by doing so fictitiously reducing the property of the DRAGON Bau GmbH, that is at least having reduced the satisfaction of creditors, thus causing a damage exceeding €50,000."
It will be seen that the three charges alleged offences of dishonesty committed in 2003, the latest being in December 2003. On 22 August 2005, the warrant was certified by the National Criminal Intelligence Service ("NCIS") under section 2(7) and (8) of the Extradition Act 2003 Act ("the 2003 Act").
On 12 March 2006, the appellant was arrested at his home address in Wales under section 3 of the 2003 Act on the basis of the warrant. On 14 March, the initial hearing was conducted by the Bow Street Magistrates' Court, pursuant to section 4(3) and section 7 and 8 of the 2003 Act. The appellant was granted bail and the extradition hearing was set down.
On 8 May, District Judge Anthony Evans heard evidence and submissions which were directed to the question whether the appellant's extradition to Austria, being a category 1 territory, was barred on the grounds that it appeared that it would be oppressive to extradite him by reason of the passage of time: see section 14 of the 2003 Act. The district judge found against the appellant and ordered his extradition.
Since the date of the hearing, the appellant has produced a witness statement which contains material that was not before the district judge. In particular, he explains why he says that it would also be unjust to extradite him by reason of the passage of time. He gives evidence that in effect he was lulled into a false sense of security by the Austrian police, and that, as a result, he allowed important documents to be disposed of in mid 2005. He says the absence of these documents would...
To continue reading
Request your trial
-
FK v Stuttgart State Prosecutor's Office, Germany
...Appellant's alleged conduct as described in the EAW, that was the only legitimate inference that could be drawn. 64 Nor does von der Pahlen v Government of Austria [2006] EWHC 1672 (Admin), upon which Mr Southey relied, assist the Appellant's cause. In that case, the extradition of the requ......
-
Naveed Din v Director of Public Prosecutions of The Augsburg Public Prosecutors Office, Germany National Crime Agency (Interested Party)
...[2006] 2 AC 1). The requirements under section 2 EA 2003 have to be considered separately for each offence in the EAW. 10 In Von der Pahlen v Government of Austria [2006] EWHC 1672 (Admin), the Divisional Court emphasised that the use of the word 'particulars' indicates that a broad omnibus......
-
Guenther Klar v Court of First Instance Brussels (Belgium)
...as “obtaining property by deception” will not suffice (see Dyson LJ as he then was in Peter Von Der Pahlen v Government of Austria [2006] EWHC 1672 (Admin) at paragraph 21). Although the question “how far does the warrant have to go?” admits of no prescriptive answer (see again Dyson LJ at......
-
Mucelli v Albania
...raise any bar to his extradition under the 2003 Act. He places much reliance on a decision of this court, Van der Pahlen v. Austria [2006] EWHC 1672 Admin, where Dyson LJ, giving the leading judgment, dealt with what the words in section 2(4)(c) of the 2003 Act, “the conduct alleged to con......
-
‘Surrendering’ the Fugitive—The European Arrest Warrant and the United Kingdom
...Prosecutor of the County Court of Montluon, France [2006] EWHC 760. 94 Ibid. at [61].95 Peter Von Der Pahlen v Government of Austria [2006] EWHC 1672.96 [2005] EWHC 915.97 [2006] EWHC 74 at [37].98 Ibid.99 [2005] EWHC 3036, [2006] 1 CMLR 100 2007 SLT 14 at 21.101 [2006] EWHC 165, [2006] 2 A......