Von Arnim v Federal Republic of Germany [1999] FCA 1159 (23 August 1999)

Last Updated: 24 August 1999

FEDERAL COURT OF AUSTRALIA

Von Arnim v Federal Republic of Germany [1999] FCA 1159

EXTRADITION - Request for extradition - Eligibility for surrender - Whether documents supporting request for extradition "duly authenticated" - Whether magistrate determining eligibility for surrender has jurisdiction to consider whether request accompanied by "all available information" concerning identity of person claimed - Whether identity established - Diplomatic immunity - Whether magistrate has jurisdiction to entertain claim to immunity - Whether applicant entitled to diplomatic immunity - Whether documents bearing seal of international organisation duly authenticated.

Extradition Act 1988 ss 11(1)(a), (6), 19(1), (2), (6), (7), (7A), 21

Extradition (Federal Republic of Germany) Regulations, regs 4, 5, Schedule Arts 9, 10

International Organizations (Privileges and Immunities) Act 1963 ss 3(2), 6(1)(b)(i), 11

Vienna Convention on Diplomatic Relations, Arts 29, 31

Specialized Agencies (Privileges and Immunities) Regulations 1986, regs 3, 6

World Health Organization Act 1947 s 5, First Schedule

Evidence Act 1995 (Cth) s 150(1)(e)

Evidence Act 1958 (Vict) s 55

Republic of South Africa v Dutton (1997) 77 FCR 128 applied

Zoeller v Republic of Germany (1989) 23 FCR 282 applied

Federal Republic of Germany v Parker (1998) 101 A Crim R 234 applied

Duff v The Queen [1979] FCA 83; (1979) 28 ALR 663 cited

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM v FEDERAL REPUBLIC OF GERMANY and MR D H McLENNAN MAGISTRATE, MELBOURNE MAGISTRATES' COURT

V 276 OF 1999

SUNDBERG J

23 AUGUST 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 276 OF 1999

BETWEEN:	DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM Applicant
AND:	FEDERAL REPUBLIC OF GERMANY First Respondent MR D H McLENNAN MAGISTRATE, MELBOURNE MAGISTRATES' COURT Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	23 AUGUST 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The second respondent's order made 10 May 1999 that the applicant is eligible for surrender to the Federal Republic of Germany be confirmed.

3. The applicant pay the first respondent's costs of the application.

THE COURT DECLARES THAT the extradition offences which have made the applicant eligible for surrender are

(a) fifteen counts of damaging the financial position of another by fraudulent representation thus causing an error, in each case with the intention of gaining an unlawful pecuniary advantage for himself, contrary to s 263 of the German Penal Code, and

(b) thirty four counts of attempting to damage the financial position of another by fraudulent representation thus trying to cause error, in each case with the intention of gaining an unlawful pecuniary advantage for himself, contrary to ss 53 and 263 of the German Penal Code.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 276 OF 1999

BETWEEN:	DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM Applicant
AND:	FEDERAL REPUBLIC OF GERMANY First Respondent MR D H McLENNAN MAGISTRATE, MELBOURNE MAGISTRATES' COURT Second Respondent

JUDGE:	SUNDBERG J
DATE:	23 AUGUST 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1 The Federal Republic of Germany is an extradition country pursuant to s 5 of the Extradition Act 1988 ("the Act") and reg 4 of the Extradition (Federal Republic of Germany) Regulations (No 134 of 1990) ("the Regulations"). On 1 September 1994 the Stuttgart Local Court issued a warrant of arrest for the applicant on

* fifteen charges of damaging the financial position of another by fraudulent representation thus causing an error, in each case with the intention of gaining an unlawful pecuniary advantage for himself, contrary to s 263 of the German Penal Code

* thirty four charges of attempting to damage the financial position of another by fraudulent representation thus trying to cause an error, in each case with the intention of gaining an unlawful pecuniary advantage for himself contrary to ss 53 and 263 of the German Penal Code

* two charges of fabricating false documents.

On 9 December 1994 the German Higher Regional Court First Criminal Senat Division rejected a complaint by the applicant in relation to several of the fraud and attempt charges. On 29 December 1994 the German Higher Regional Court Stuttgart dismissed the applicant's complaint in relation to other fraud and attempt charges, but revoked the arrest warrant in relation to the two falsification charges.

2 On 7 December 1998 a provisional warrant for the arrest of the applicant was issued pursuant to s 12(1) of the Act. The warrant was executed on 21 December 1998. The applicant was thereafter remanded in custody. On 8 January 1999 Senator Vanstone, the Minister for Justice and Customs, stated by notice in writing under s 16(1) of the Act that an extradition warrant in relation to the accused had been received from the Federal Republic. On 12 March 1999 proceedings under s 19(1) of the Act commenced before the second respondent ("the Magistrate") in the Magistrates' Court at Melbourne. The following German language documents with English translations were tendered to the Magistrate:

* the warrant of arrest dated 1 September 1994

* the decision of the Higher Regional Court First Criminal Senat Division dated 9 December 1994

* the order of the Higher Regional Court dated 29 December 1994

* a certificate of identity of the applicant dated 15 March 1999, signed by "Reiber, Public Prosecutor"

* a certificate dated 24 October 1997 setting out the law constituting the offences with which the applicant was charged, and stating the punishment that can be imposed, again signed by "Reiber, Public Prosecutor" ("the certificate of offences").

On 10 May the Magistrate determined that the applicant was eligible for surrender on all of the offences the subject of the s 16(1) notice, and made an order under s 19(9) that the applicant was eligible for surrender. The applicant seeks a review of that order pursuant to s 21 of the Act.

THE LEGISLATION

3 Section 11(1) of the Act provides that

"The regulations may:

(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations."

4 Section 19(1) provides that where the Attorney-General has given a notice under s 16(1) in relation to a person who is on remand under s 15, and an application is made to a magistrate by the extradition country concerned for proceedings to be conducted in relation to the person, the magistrate is required to conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence for which surrender is sought. Sub-section (2) provides that a person is eligible for surrender only if the following conditions, amongst others, are satisfied:

"(a) the supporting documents in relation to the offence have been produced to the magistrate;

(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate ...."

The expression "supporting documents" means:

"(a) if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;

...

(c) ...

(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

(ii) a duly authenticated statement in writing setting out the conduct constituting the offence."

5 Sub-section (5) provides that the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which his surrender is sought. Sub-section (6) provides:

"Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings."

6 The requirements of due authentication are found in sub-s (7) which provides in part:

"A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:

(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and

(b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:

(i) ... of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country ...."

Sub-section (7A), which was introduced by the Extradition Amendment Act 1990, provides:

"Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1) ...."

THE REGULATIONS

7 Regulation 4 of the Regulations declares the Federal Republic to be an extradition country. Regulation 5 provides that the Act applies in relation to the Republic "subject to the Treaty between Australia and the Federal Republic" made at Bonn in 1987. A copy of the English text of the Treaty is set out in the Schedule. Article 9 is in part as follows:

"(1) A request for the extradition of a person claimed shall be in writing. All documents furnished in support of a request for extradition shall be duly authenticated.

(2) The request shall be accompanied by:

(a) all available information concerning the identity and nationality of the person claimed; and

(b) a copy of the relevant provisions of the statute, if any, creating the offence or a statement of the relevant law and in either case a statement of the punishment that can be imposed.

(3) A request for the extradition of a person claimed for the purpose of prosecution shall be accompanied, in addition to the documents provided for in paragraph (2), by a warrant for the arrest, or a copy of the warrant for the arrest of the person claimed, a description of each offence for which the person is claimed, and a statement of the acts or omissions alleged against the person claimed in respect of each such offence.

...."

8 Article 10 is as follows:

"(1) Documents which, in accordance with Article 9, accompany a request for extradition shall be admitted in evidence, if duly authenticated, in any extradition proceedings in the Requested State.

(2) Documents are duly authenticated for the purposes of this Treaty if:

(a) in the case of warrants they are signed, and in any other case they are certified, by a Judge, Magistrate or other competent authority in the Requesting State, and

(b) they are sealed with the official or public seal of the Requesting State or of a Minister of State, or a Department or officer of the Government, of the Requesting State."

NATURE OF THE REVIEW

9 Section 21(1) provides for "a review" of an order under s 19(9). Section 21(2) empowers the Court to confirm the magistrate's order or quash the order and direct the magistrate to order the release of the person the subject of the order. Sub-section (6)(d) provides that on an application for review the Court "shall have regard only to the material that was before the magistrate". If the Court determines that the person is eligible for surrender in relation to extradition offences, it shall include in its judgment on the review a statement to that effect specifying the offence or offences. In Republic of South Africa v Dutton (1997) 77 FCR 128 Hill J held that

* the "material that was before the magistrate" in s 21(6)(d) is not limited to material which the magistrate had accepted in evidence, but extends to material the tender of which had been rejected

* an application for review under s 21 is not a species of judicial review limited to correcting legal error, but is a rehearing in which the Court is authorised to reach its own conclusion on eligibility for surrender

* the court has no power to remit the matter to the magistrate for rehearing.

GROUNDS OF REVIEW

Certificate of identity lacks required authentication

10 A document is "duly authenticated" for the purposes of s 19(7) if it purports to be signed or certified by an officer in or of the extradition country, and purports to be sealed with an official seal of an officer of the Government of the extradition country. On the other hand, Article 10(2) requires a document to be signed or certified by a competent authority in the requesting state, and to be sealed with the official seal of an officer of the requesting state. The applicant's contention was that s 19(7) is displaced by Article 10 of the Treaty, a displacement which is authorised by s 11(1) of the Act, which enables the regulations to apply the Act to an extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the treaty with that country. It was said that Article 10(2) is an "exception" to s 19(7) of the Act. Then it was said that there is no evidence that "Reiber" was a competent authority in the Federal Republic or that the seal is that of an officer of the Republic.

11 For the first respondent reliance was placed on s 19(7A) of the Act. The sub-section was inserted to ensure that the "purports" standard in sub-s (7) applies notwithstanding any authentication provision to the contrary in an extradition treaty. See the Explanatory Memorandum to the Bill which became the 1990 Act. The applicant accepted that sub-s (7A) "cured" any authentication problem. However, it was submitted that did not make the certificate admissible in evidence, because the sub-section did not preserve sub-s (6), which provides that a duly authenticated document is admissible. A document that is authenticated in accordance with sub-s (7) is in my view admissible under sub-s (6). In Zoeller v Republic of Germany (1989) 23 FCR 282 at 289 a Full Court held that a document that is duly authenticated within the meaning of s 19(7) is, by force of s 19(6), admissible in proceedings. The certificate purports to be signed by the Public Prosecutor of Stuttgart, who is an "officer in or of" the Federal Republic, and it purports to be sealed with an official seal. The requirements of s 19(7) are thus satisfied, and the certificate is admissible under sub-s (6).

Certificate of offences not properly authenticated

12 In relation to the certificate of offences the applicant repeated the authentication submission made in respect of the certificate of identity. The certificate of offences is signed and sealed in the same manner as the certificate of identity. What I have said about the certificate of identity applies to the certificate of offences.

" all available information concerning identity": Article 9(2)(a)

13 It was contended that the certificate of identity is deficient because the data it contains is not matched with the facts said to constitute the offences for which extradition is sought. The Magistrate had no jurisdiction to consider whether all available information had accompanied the request. Nor has this Court on review. See Federal Republic of Germany v Parker (1998) 101 A Crim R 234 at 241, 254, a decision of the Full Court.

Identity of applicant

14 The Magistrate had to be satisfied that the person before him was the person named in the warrant. There was ample evidence of this. Detective Sergeant Grimshaw gave evidence that he had executed a search warrant at the applicant's premises. The applicant identified himself by his full name. In the course of the search Sergeant Grimshaw obtained the applicant's passport. The passport was in evidence, and the Sergeant said that the photograph in the passport is that of the person who identified himself as the applicant. On another occasion Sergeant Grimshaw executed a search warrant and obtained from the applicant's premises a German identity card which contained a photograph of the applicant. The identity card was in evidence. The date of birth in the passport and identity card is the same as that in the certificate of identity. Signatures on documents emanating from Port Philip Prison, where the applicant is detained, and purporting to be his, are the same as signatures on the passport and identity card.

Diplomatic immunity

15 The applicant claimed to be entitled to diplomatic immunity because he was "for Australia Director-General of the World Health Organization" ("WHO"). Section 3(2) of the International Organizations (Privileges and Immunities) Act 1963 provides:

"The privileges and immunities conferred by this Act or the regulations are privileges and immunities in relation to the operation of the laws of the Commonwealth (including Acts of the Commonwealth other than this Act) and of the States and Territories of the Commonwealth."

Section 6(1) provides in part:

"Subject to this section, the regulations may, either without restriction or to the extent or subject to the conditions prescribed by the regulations:

...

(b) confer:

(i) upon a person who holds, or is performing the duties of, an office prescribed by the regulations to be a high office in an international organization to which this Act applies all or any of the privileges and immunities specified in Part I of the Second Schedule."

The Second Schedule specifies "the like privileges and immunities ... as are accorded to a diplomatic agent". Article 29 of the Vienna Convention on Diplomatic Relations, which has the force of law in Australia, provides that a diplomatic agent is not liable to any form of arrest or detention. Article 31 confers on the agent immunity from the criminal, civil and administrative jurisdiction of the receiving State.

16 The Specialized Agencies (Privileges and Immunities) Regulations 1986 declares each agency specified in Column 2 of an item in the Schedule to be a Specialized Agency. Each Specialized Agency is declared to be an international organization to which the International Organizations (Privileges and Immunities) Act applies: reg 3. Regulation 6 provides:

"(1) The office, or each of the offices, specified in Column 3 of an item in the Schedule is declared to be a high office in the Specialized Agency specified in Column 2 of that item.

(2) A person who holds, or is performing the duties of, a high office in a Specialized Agency has the privileges and immunities specified in Part I of the Second Schedule to the Act."

The Schedule to the Regulations lists "World Health Organization" as an agency, and the high offices within that agency as Director-General, Deputy Director-General, Assistant Director-General and Regional Director.

17 The evidence upon which the applicant relies for his claim to immunity consists of two documents. The first purports to be a "Certificate" dated 25 August 1998 under the letterhead of WHO:

"I, Dr Gro Harlem Brundtland, Director-General of the World Health Organization (WHO), hereby certify that Thomas S R Topping, WHO Legal Counsel, has the full authority to speak on behalf of the Organization concerning claims made by Mr Ulrich Christoph Eberhard Freiherr Von Arnim to be a representative of WHO, including use of the WHO name and emblem made by Mr Von Arnim to support such claims."

What purports to be a seal of WHO is placed beside the certifier's name and signature. The second document, again on WHO letterhead, purports to be a letter dated 19 February 1997 from Mr Topping to "World Health Organisation - Australasia Ltd Director General - Ulrich von Arnim". The letter is in part as follows:

"I have been instructed by His Excellency Director General - Hiroshi Nakagima to inform you that in accordance with regulations and pursuant to the Constitution of the World Health Organization your incorporated International Non Governmental Organisation, World Health Organisation - Australasia Ltd, has been accredited

- Status of a Regional Office of the World Health Organization of the United Nations in Australia with all the duties, rights and privileges of such office."

This accreditation is subject to three "conditions". One is that World Health Organisation - Australasia Ltd "uses the approximately AUS$20,000,000 plus interest, Dec 95 illegally removed from its accounts, for projects in accordance with the Organisation's Articles and Memorandum of Association." Immediately after listing the conditions, Mr Topping requested written confirmation "to that effect, by return". I take that to be a request for the applicant's acceptance of the conditions.

18 The Magistrate declined to receive the documents in evidence as they were not authenticated. They were, however, part of the material before him. See Dutton. In evidence before the Magistrate was a Certificate pursuant to s 11 of the International Organizations (Privileges and Immunities) Act signed by the Minister for Foreign Affairs stating that the applicant "has never been recognised by the Government of the Commonwealth of Australia as a person entitled to diplomatic or other privileges or immunities as a representative of the World Health Organisation or any other international organisation to which the International Organisations (Privileges and Immunities) Act 1963 applies". Under s 11 of that Act such a certificate is "evidence of the facts certified". The Magistrate said:

"I have before me no evidence at all of diplomatic status. I have had two documents provided to me, which do not, of their own weight, form any form of evidence, particularly in the form that they are in. Further I do have a certificate from the Minister for Foreign Affairs saying that Dr Ulrich Christoph Von Arnim has never been recognised by the government of the Commonwealth of Australia as a person entitled to diplomatic or other privileges or immunities."

His Worship went on to say that the issue of immunity was in any event not a matter for him to consider. Notwithstanding that, he said that he saw nothing which would lead him to the conclusion that the applicant was a diplomatic agent.

JURISDICTION TO ENTERTAIN IMMUNITY CLAIM

19 The first respondent contended that the magistrate had no jurisdiction to entertain the immunity claim. This was said to flow from s 19(2) and s 11(6) of the Act. The former provides that a person is only eligible for surrender if four conditions are satisfied. But that says nothing as to whether the magistrate has any jurisdiction over the person involved. It simply lists the requirements that must be satisfied before a person can be surrendered. The applicant does not seek to add a further requirement - that the person is not entitled to diplomatic immunity. Rather, the question of diplomatic immunity goes to whether the magistrate has jurisdiction to determine if the person is eligible to surrender. The position is the same with s 11(6) which provides that

"For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence ... no limitation, condition, qualification or exception otherwise applicable under this section ... has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d)."

The function of s 11(6) is to ensure that nothing in s 11 expands the list in s 19(2). It does not go, any more than s 19(2) itself, to whether the magistrate has jurisdiction over the person of the individual whose extradition is sought. That depends on whether the applicant is a diplomatic agent within the meaning of the Convention. If he is, he is immune from Australia's criminal, civil and administrative jurisdiction. The power a magistrate exercises under s 19 falls into one of those categories.

20 While initially the Magistrate seems to have thought he had no power to enter upon the immunity question, he appears ultimately to have done so, and to have decided the question against the applicant. He was right to have entertained the claim to immunity. For the applicant it was claimed that the two WHO documents are authenticated as required by s 150(1)(e) of the Evidence Act 1995 (Cth). This provides that the imprint of a seal on a document which purports to be the imprint of "the seal of a body ... or a body corporate, established by a law of ... a foreign country" is presumed to be the imprint of that seal and to have been duly sealed as it purports to have been sealed. A "seal" includes a "stamp". This provision does not assist the applicant. While WHO is doubtless a body, it is not established by the law of a foreign country, but by the States that are parties to the "Constitution of the World Health Organization". See World Health Organization Act 1947 s 5, First Schedule. Even if the documents are authenticated as claimed, they are not in my view admissible in evidence. For the applicant it was contended that they are admissible under s 19(6) of the Act. But that only applies to a documents authenticated in the manner described in sub-s (7). The other source of admissibility is said to be s 55 of the Evidence Act 1958 (Vict). But the persons who purport to have signed the documents were not called as witnesses, and there is no evidence that it was not reasonably practicable to secure their attendance. See sub-s (5)(b).

21 The Magistrate was correct in declining to admit the WHO documents, and in acting on the Minister's Certificate. See Duff v The Queen [1979] FCA 83; (1979) 28 ALR 663 at 695. Even if the WHO letters were admissible, I would not have acted on them. The letters are unsatisfactory in several respects, and little weight can be attached to them. The Director-General named in the first letter is not the same person as the Director-General named in the second. The Brundtland letter is dated eighteen months after the Topping letter. The WHO seals on the two letters are different, notwithstanding that both purport to come from the head office of WHO. The Brundtland letter refers to "claims made by Mr Ulrich Christoph Eberhard Freiherr Von Arnim to be a representative of WHO", and, it seems, claims as to his entitlement to use the WHO name and emblem. Finally, there is no evidence that the conditions attached to the Topping accreditation have been accepted.

CONCLUSION

22 On the material before the Magistrate, the claim to immunity was properly dismissed, and the order under s 19(9) was properly made. The application must be dismissed. Pursuant to s 21(6)(g) I must include in my judgment a statement that the applicant is eligible for surrender to the first respondent in relation to the extradition offences specified in the Minister's notice under s 16(1) of the Act (exhibit C).

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 23 August 1999

Counsel for the Applicant:	D Just
Solicitors for the Applicant:	Baker & Armstrong
Counsel for the first Respondent:	W E Stuart
Solicitor for the first Respondent:	Director of Public Prosecutions
Date of Hearing:	5 August 1999