Bat v The Investigating Judge of the German Federal Court

Immunity for a foreign official depends on the applicable customary international law rule and its factual conditions. A Special Mission requires the prior consent of the receiving State to the mission as such; an official visit, encouragement of dialogue, or diplomatic courtesy is insufficient. Whether the United Kingdom recognises a visit as a Special Mission is a matter for the Executive, and an official certificate was conclusive on that issue. Immunity ratione personae is confined to a narrow circle of office-holders whose status is comparable to a Head of State, Head of Government or Foreign Minister. A civil servant responsible for national-security administration does not fall within that category. The court also rejected abuse of process because the evidence did not establish that the appellant had been lured into the jurisdiction.

The appellant was ordered to be extradited to Germany by District Judge Purdy under a European Arrest Warrant concerning alleged abduction and serious bodily injury. He appealed under section 26 of the Extradition Act 2003, relying on Special Mission immunity, abuse of process, immunity arising from his senior governmental office, and functional immunity for alleged official acts. He also made a habeas corpus application, upon which the court found it unnecessary to rule.

The United Kingdom Government and the Government of Mongolia intervened. The central questions were whether the appellant’s visit had the consent required for recognition as a Special Mission, whether the extradition process had been abused, and whether customary international law afforded him personal or functional immunity.

1. Appeal dismissed. The appellant was not entitled to immunity and the extradition order stood.
2. Under customary international law, Special Mission immunity requires prior consent by the receiving State to the visit as a Special Mission. The requirement is reflected in articles 1(a) and 2 of the Convention on Special Missions. Not every official visit or visit concerning matters of mutual interest has that character.
3. The Foreign and Commonwealth Office letter of 12 January 2011 conclusively established that the United Kingdom had not consented to the visit as a Special Mission. The legal consequences of that fact were for the court, but recognition or non-recognition of the mission was a matter for the Executive. In any event, the evidence independently failed to establish consent: there was no invitation, agreed programme, settled agenda, or arranged meeting.
4. The extradition proceedings were not an abuse of process. The principles in USA v Tollman required particular identification of the alleged misconduct and reasonable grounds before investigation of abuse. The grant of a visa and the failure to disclose the warrant were insufficient, particularly as In re Schmidt showed that securing a wanted person’s presence did not itself constitute abuse. The appellant had not been lured into the United Kingdom; repeated requests for meetings had been rebuffed.
5. Immunity ratione personae applies to a narrow circle of high-ranking office-holders comparable to those identified in Arrest Warrant of 11 April 2000. The appellant’s position as Head of the Executive Office of Mongolia’s National Security Council was that of a senior civil servant and administrator, not an office equated with the State. The subject matter of his intended discussions did not alter that conclusion.
6. The court rejected functional immunity ratione materiae. The authorities and materials relied on did not establish a customary international-law rule granting a foreign official immunity from criminal jurisdiction for alleged offences committed in the territory of the forum or a third State, absent a special regime or agreement. The analysis of State practice supported that conclusion. The late raising of the issue had also deprived the court of full argument.
7. Foskett J agreed with the result and reasoning. He left open the general conclusiveness of an FCO certificate in a stronger factual case, but considered that the evidence here did not establish implied consent.

1. High Court (Administrative Court): appeal under section 26 of the Extradition Act 2003 dismissed; the extradition order made by District Judge Purdy was upheld.