Bat v The Investigating Judge of the German Federal Court

Factual and Procedural Background

This appeal concerns the extradition of the Appellant, Head of the Office of National Security of Mongolia, ordered by District Judge Purdy on 18 February 2011 pursuant to a European Arrest Warrant issued by Germany and certified by the Serious Organised Crime Agency (SOCA). The Appellant was arrested on 17 September 2010 upon arrival in the United Kingdom. The extradition was resisted on grounds of immunity linked to his status as a member of a Special Mission, his high-ranking office, alleged abuse of process, and official acts performed on behalf of Mongolia. The appeal challenges the rejection of these grounds. The case also involves a separate habeas corpus application, now largely dormant, with interventions from the Foreign and Commonwealth Office (FCO) and the Mongolian Government.

The facts relevant to the immunity claims and abuse of process argument include the Appellant’s intended visit to the UK on official business related to national security cooperation, the issuance and processing of his visa, and the circumstances of his arrest. The European Arrest Warrant relates to alleged offences of abduction and serious bodily injury committed in 2003 in France and Germany, with the Appellant accused of forcibly repatriating a Mongolian national. The Appellant’s visit to the UK was preceded by diplomatic discussions between Mongolian and UK officials concerning possible security cooperation, but no formal invitation or agreed agenda for a Special Mission was issued by the UK. The Appellant was arrested on arrival despite these prior interactions.

Legal Issues Presented

1. Whether the Appellant was entitled to immunity under customary international law as a member of a Special Mission visiting the United Kingdom with prior consent;
2. Whether the extradition proceedings constituted an abuse of process by luring the Appellant into the jurisdiction;
3. Whether the Appellant was entitled to immunity ratione personae due to his status as a high-ranking official of Mongolia;
4. Whether the Appellant was entitled to immunity ratione materiae for official acts committed on behalf of the Mongolian Government, and thus immune from prosecution and extradition.

Arguments of the Parties

Appellant's Arguments

• The Appellant claimed immunity under customary international law as a member of a Special Mission to the UK, which was consented to and encouraged by the UK Government.
• The extradition proceedings amounted to an abuse of process, as the Appellant was allegedly lured into the UK under false pretences of official welcome and cooperation.
• The Appellant asserted immunity based on his status as a very senior government official, entitled to immunity ratione personae.
• The Appellant claimed immunity ratione materiae for acts performed on behalf of the Mongolian Government, arguing that the alleged crimes were official acts and thus immune from prosecution and extradition.

Respondent's Arguments (UK Government and SOCA)

• The FCO contended that the letter dated 12 January 2011 from the Director of Protocol conclusively established that the UK did not consent to the Appellant’s visit as a Special Mission and thus no immunity arose on that basis.
• The UK Government and SOCA denied any abuse of process, emphasizing that the Appellant was not lured but that the Mongolian Government chose to send him on a speculative visit despite being rebuffed in attempts to arrange meetings.
• The UK Government argued that the Appellant did not hold a sufficiently high rank to attract immunity ratione personae, placing him at a mid-level civil servant rank.
• Regarding immunity ratione materiae, the UK Government contended that there was no customary international law immunity for officials acting on behalf of a State in criminal proceedings within the forum State, especially where the State has not consented to the presence or the alleged acts.
• The UK Government also highlighted the late raising of the immunity ratione materiae argument and absence of notification to the UK or Germany by Mongolia regarding official acts.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the Appellant’s claims to immunity under customary international law in the context of his visit to the UK and the alleged criminal acts in Germany. On the Special Mission claim, the court emphasized that immunity depends on prior consent by the receiving State, which includes an invitation, agreed agenda, and recognition of the mission’s special status. The FCO’s letter of 12 January 2011, a formal certificate under the Royal Prerogative, conclusively established that the UK did not consent to the Appellant’s visit as a Special Mission. The court declined to question this executive determination, consistent with precedent that recognition and consent are matters exclusively for the government.

Regarding the abuse of process allegation, the court found no evidence that the Appellant was lured or entrapped. The Mongolian Government was aware the Appellant was wanted and chose to send him on a speculative visit despite repeated refusals to arrange official meetings. The UK authorities neither encouraged nor misled the Appellant or his Government in a way that would constitute an abuse of process under established principles.

On immunity ratione personae, the court applied the International Court of Justice’s criteria identifying a narrow class of high-ranking officials entitled to such immunity, including Heads of State, Heads of Government, and Ministers for Foreign Affairs. The Appellant’s position was held to be that of a mid-level civil servant, insufficiently senior to attract personal immunity.

Finally, the court considered immunity ratione materiae for official acts. It acknowledged that while State officials enjoy civil immunity for official acts, criminal immunity in the forum State is more limited and controversial. The court relied on authoritative commentary and recent State practice, including the analysis of expert opinions, concluding that no customary international law grants immunity from criminal prosecution in the forum State to officials acting on behalf of their State without the forum State’s consent. The court noted the absence of notification or recognition by the UK or Germany of any immunity claim and the late introduction of this argument.

Both judges agreed with these conclusions, with a minor reservation expressed by one judge regarding the conclusiveness of the FCO’s certificate in different factual scenarios, but not in this case.

Holding and Implications

The court DISMISSED the appeal in its entirety.

The Appellant was found not to be entitled to immunity on the grounds of a Special Mission, abuse of process, high-ranking official status, or official acts immunity. Consequently, the extradition order stands. The decision affirms the exclusive role of the executive in determining recognition and consent for diplomatic immunities and clarifies the limited scope of immunity ratione materiae for foreign officials in criminal matters within the UK. No new precedent was established beyond the application of existing international law principles and domestic statutory provisions to the facts of this case.