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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Volle v Public Prosecutor's Office, Kempten, Germany [2015] EWHC 1484 (Admin) (21 May 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1484.html Cite as: [2015] EWHC 1484 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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In the matter of an appeal against extradition pursuant to s.26 of the Extradition Act 2003 ECKHARD VOLLE |
Appellant |
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- and - |
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PUBLIC PROSECUTOR'S OFFICE, KEMPTEN, GERMANY |
Respondent |
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Mr Peter Caldwell (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 27 April 2015
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Crown Copyright ©
Mr Justice Supperstone :
The Judge's Findings
"It is apparent that the Prosecuting Authority in Germany was not made aware of the allegations until 2009 by which time [he] was in the UK. I accept that he left Germany in 2008 for financial reasons and that he submitted a Document dated 7/10/08 notifying the German authorities of his address in the UK."
"…is as a result of a combination of administrative incompetence on the part of the JA and the RP's [Requested Person's] own failure to ensure that matters he was aware of were resolved. Given the RP's apparent unwillingness to face up to potential criminal allegations in Germany I do not find culpable delay on the part of the JA – incompetence contributed to the delay but such delay could have been avoided had the RP been proactive".
In the circumstances of this case his assertion that it would be both unjust and oppressive as a result of the passage of time is without merit. He had adequate legal representation in Germany and he should have been aware that proceedings were ongoing and that the list of allegations had increased.
…
Furthermore there is nothing to satisfy me that it would be oppressive to order extradition as a result of any change in the RP's circumstances. What changes there have been are unrelated to the passage of time. He has demonstrated that he is in a position to counter the allegations of Fraud. Any hardship he is likely to encounter will amount to no more than that inherent in the extradition process.
The RP's challenge under section 14 of the EA fails."
"The JA has made it clear that it does not intend to take measures that would be less coercive as it is of the view that none exist. This is as a result of the RP's failure to respond to and address the pending prosecution. It is the RP's own case that he made no attempt to establish the status of the proceedings he has known about since 2009 but rather buried his head in the sand.
Mr Ott's view that it would be possible simply to summons the RP is contradicted by the JA and on the evidence I have no alternative but to find that there is no possibility of less coercive measures being taken.
In general terms there is no evidence to satisfy me to the requisite standard that extradition would result in anything other than the hardship that is sadly inherent in the extradition process.
The RP will be separated from his sons and there may well be financial implications for the family but the boys are living with their mother and there is no evidence to satisfy me that they would be left destitute in the event of extradition.
There is a weighty public interest in ensuring that this country honours its Treaty obligations by ensuring that those who are alleged to have been involved in criminality in other jurisdictions do not evade prosecution.
In all the circumstances of this case I am not persuaded that extradition would be incompatible with the rights of the RP and his family under ECHR and his challenge under sections 20 and 21A fail."
The grounds of appeal
i) That the Appellant's extradition would be oppressive due to the passage of time: EA, s.14 (ground 1); and
ii) That the learned judge erred when she found that the Appellant's extradition would not constitute a disproportionate interference with his and his family's right to family life pursuant to s.21A of the EA and Article 8 ECHR (ground 2).
The Parties' Submissions and Discussion
Ground 1: passage of time
Ground 2: s.21A of the EA, proportionality and Article 8 ECHR.
"21A 'Person not convicted: human rights and proportionality
(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ('D')—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it is appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant authorities taking measures that would be less coercive than the extradition of D.
(4) The judge must order D's discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.
(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention rights;
(b) that the extradition would not be disproportionate."
"It would be a reasonable assumption in most cases that the requesting state has, pursuant to its obligations under Article 5(3) ECHR, already considered the taking of less coercive measures. I accept the submission made by Mr Summers QC that there is an evidential burden on the requested person to identify less coercive measures that would be appropriate in the circumstances."
Conclusion