QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WALKER
| ARTURO PASCHAYAN
|- and -
|GOVERNMENT OF SWITZERLAND
Mr Ben Lloyd (instructed by CPS) for the Defendant
Hearing date: 31.01.2008
Crown Copyright ©
Lord Justice Maurice Kay :
"(1) This section applies in relation to the conduct of a person if –
(a)he is accused in a category 2 territory of the commission of an offence constituted by the conduct …
(2) The conduct constitutes an extradition offence … if …
(a)the conduct occurs in the category 2 territory."
"To my mind the detail provided demonstrates that on any proper construction this requested person is plainly an accused."
The material from Switzerland
(1) 2 April 2007
"The warrant of arrest … of the investigating magistrate has been issued by Mr Umbricht who is duly authorised to take cognisance of the acts charged against Paschayan in Switzerland and to issue the warrant of arrest."
"… charged with: fraud, possibly misappropriation, money laundering, forgery of documents."
"… shall be arrested and transferred to the … office of the Investigating Magistrate for the purpose of pursuing a criminal procedure for
(1) fraud according to Article 146 Penal Code,
Possibly misappropriation according to Article 138 Penal Code
(2) forgery of an instrument according to Article 251 Penal Code,
Possibly forgery of identification document according to Article 252 Penal Code
(3) obtaining false certification by fraudulent pretences according to Article 253 Penal Code."
It seems that the "possibly" offences are lesser alternatives.
"The acts with which the alleged offender … is charged took place after 22 June 1998. Pursuant to Article 70 Swiss Penal Code the limitation of prosecution will thus take place on 22 June 2013 at the earliest."
(2) 24 May 2007
"The criminal proceedings against Arturo Paschayan regarding the amount of $500,000 were opened by the Public Prosecutor's Office Ravensburg in 2001. The Public Prosecutor's Office Ravensburg proposed a petition to Switzerland to assume prosecution. The reason for this petition was that the criminal proceedings against Arturo Paschayan were already pending in Switzerland and that Arturo Paschayan as a citizen of Switzerland would not be extradited to Germany. When this petition was proposed the alleged offender Arturo Paschayan still remained in Switzerland at least part of the time. With the decision of 17 February 2003 the Public Prosecutor's Office [in Switzerland] assumed the German criminal proceedings."
"According to how things were handled in this and the other cases one must assume that there was never any intention to pay the bill. The alleged offender Arturo Paschayan shall have to be interrogated accordingly."
(3) 16 August 2007
"Since 13 November 2001 the … Investigating Magistrate … pursues formal criminal proceedings against the alleged offender Paschayan. The alleged offender Paschayan is suspected of having committed the penal acts mentioned in the request for extradition.
At present the procedure of investigation is pending. This procedure serves the purpose of fully and absolutely clarifying the relevant facts. The procedure of investigation is conducted by Mr Umbricht, Investigating Magistrate.
As soon as the investigation procedure is terminated the Public Prosecutor's Office … shall decide on account of the ascertained relevant facts whether the criminal proceedings against the alleged offender Paschayan shall be ceased or a charge shall be brought against the alleged offender Paschayan before the competent District Court …
If the Public Prosecutor's Office brings a charge against the alleged offender Paschayan the charge will be treated in a public hearing before the competent District Court and this Court will render a judgment. Against this judgment an appeal is possible to the Higher Court of the Canton. …
The investigation of the relevant facts and the discussion with the alleged offender as well as the evaluation of his statements is the subject matter of the investigation procedure."
(4) 3 September 2007
"The police investigation procedure is initiated on account of police's own findings or by a third person reporting to the police. Subsequently, the police investigate the relevant facts independently and in so doing is entitled to question any person including the alleged offender.
The police investigation procedure is closed in the following cases
(a) the relevant facts are completely cleared up in the opinion of the police;
(b) in order to clear up the relevant facts coercive measures, eg remand or house search, are necessary.
With the closure of the police investigation procedure according to (a) or (b) the procedure passes to the responsibility of the investigating magistrate and the so-called investigation procedure begins."
"In the course of the investigation procedure the Investigating Magistrate continues to clear up the relevant facts. In this context, he may order coercive measures like remand or house search. The Investigating Magistrate questions the alleged offender and witnesses. He must be neutral and is obliged to clear up incriminating and exonerating elements with equal importance.
The Investigating Magistrate may call on the police for his investigations and give the police orders for investigations.
If according to the Investigating Magistrate's opinion the relevant facts are completely cleared up the alleged offender has the right to check all files and documents. The alleged offender may request supplementary investigations within this procedure. If no supplementary investigations are requested or after those are treated the Investigating Magistrate draws up a final report as to the relevant facts. This report is transmitted to the Public Prosecutor together with the case records. The investigation procedure is then closed."
"On account of the Investigating Magistrate's final report and the records collected during the investigation procedure the Public Prosecutor decides whether a charge shall be brought before the District Court or the criminal proceedings shall be ceased.
If the criminal proceedings are to be ceased the Public Prosecutor issues a nolle prosequi decree. Against the latter an appeal can be lodged with the higher court … if no appeal is lodged or the appeal is rejected, the criminal proceedings are closed.
If the Public Prosecutor wants to bring a charge he issues a bill of indictment which comprises the following items.
- relevant facts for judgment by the court
- legal assessment of the relevant facts
- demand for a stated penalty for the alleged offender.
The Public Prosecutor transmits his bill of indictment together with the case records to the competent District Court."
"What more is needed to make a suspect an 'accused' person? … The starting point is that 'accused' … is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an 'accused' person. Next there is the reality that one is concerned with the contextual meaning of 'accused' in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a trans-national interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the text permits in order to facilitate extradition: Reg v Governor of Ashford Remand Centre ex parte Postlethwaite  AC 924, 946-947. … It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of laying of an information or the preferring of an indictment. Moreover, it is important to note that in England the prosecution may also be commenced if a Custody Officer decides that there is sufficient evidence to charge and arrest a person and then proceeds to charge him: section 37(7) of the Police and Criminal Evidence 1984 … Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an 'accused' person. And that is so even if the police continue to investigate afterwards.
It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an 'accused' person. All one can say with confidence is that a purposive interpretation of 'accused' ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirements of there being an 'accused' person is satisfied … For my part I am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question whether a person is 'accused' … will require an intense focus on the particular facts of each case."
"But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task … "
See also Lord Scott of Foscote (at paragraph 54).
"Absent clarity remains risk that extradition is being sought merely for the purpose of questioning and not for the purpose of pursuing a criminal prosecution. Whilst that dichotomy might become blurred because of the difference in penal procedure, mere suspicion should not found a request for extradition."
Mr Justice Walker: