Weinzierl -v- Government of the USA - AC-2023-LON-000066 and 67 – Extradition Barred

After initial defeat at first instance in the Westminster Magistrates, Mr. Weinzierl’s extradition is now barred following a High Court judgment. The judgment went to a lengthy 48 pages, David Pack of Devonshires sets out below some of the key findings:

Mr. Weinzierl is an Austrian Banker who has been the subject of a complex and prolonged extradition case brought by the Government of the United States on charges of money laundering relating to his alleged role in the bribery and corruption scandal involving Brazilian construction conglomerate Odebrecht S.A. The US charges, as presented at the extradition appeal, was not said to be centred on allegations of Mr. Weinzierl’s participation in the bribery and corruption scandal. Instead, the current charges would appear to be related to a presumed tax evasion scheme by Odebrecht S.A. in Brazil albeit no criminal charges have been brought against Odebrecht S.A by the Brazilian authorities. 

Following a lengthy extradition hearing before Senior District Judge Goldspring at Westminster Magistrates’ Court in 2022, Mr. Weinzierl’s extradition to the US was ordered by the Secretary of State for the Home Department. 

Mr. Weinzierl’s legal team appealed this decision, and in December 2024 a hard-fought week-long appeal was heard in the High Court before Lord Justice William Davis and Mr. Justice Johnson, in reaching their decision the Court stated, “against the backdrop of a judgment which has the appearance of not engaging with the arguments that were placed before the judge. In those circumstances, we have not considered it appropriate to give any weight to the judge’s finding.”

Mr. Weinzierl’s extradition is currently barred under ECHR Article 3, “the judge [at first instance] was wrong to send the case to the Secretary of State, the evidence before him was such that there was a real risk of a violation of [Mr. Weinzierl’s] Article 3 rights.” Mr. Weinzierl’s rights under Article 3 of the Human Rights Act being the right to protection against torture and inhuman or degrading treatment. Mr. Weinzierl’s legal team successfully argued that the conditions where Mr. Weinzierl may be held, upon extradition to the US, would breach his Article 3 rights. Further information has been provided by the Government of the United States to address the Article 3 issues, which still raises a number of unanswered questions that the Court will need to further consider. 

Further, the Court has refused to extradite Mr. Weinzierl on Count 1 of the indictment, that Mr. Weinzierl, between 2006 and 2016, conspired with certain third parties to commit money laundering, “the judge [at first instance] was wrong to find that [Count 1] was an extradition offence.” 

Under US law, for the prosecution to succeed on Count 1 it needed to prove (i) Mr. Weinzierl agreed to commit a money laundering offence, (ii) Mr. Weinzierl was a party to that agreement, and (iii) the object of that agreement was to commit an unlawful act. It was accepted by the Court that the US offence, as set out in the Indictment, could not be transposed into the offence of money laundering as defined in section 328 of the proceeds of Crime Act 2002, and therefore, Mr. Weinzierl had not committed an extradition offence under Count 1. 

The position under Counts 2 to 4 is less straightforward. Counts 2 to 4 relate to the international promotion of money laundering and money laundering spending, pertaining to three specific wire transfers. In English law, in order for the prosecution to establish money laundering there needs to be a predicate offence as defined in s328 of the Act; a person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person – a backward looking offense. Under US law, it would be sufficient for Counts 2 to 4 that money became criminal property thereafter – a backward or forward looking offence. In the view of the Court, the Court did not accept there was an issue and Counts 2 to 4 are necessarily backward looking, “[t]here is no question that the appellant could be convicted of the offences in counts 2 to 4 or any of them other than on the basis that he was criminally involved in dealing in criminal property i.e. the proceeds of tax fraud. It will be for the US prosecutor to prove that the funds were criminal property. The indictment does not permit some other means of achieving a conviction on any of those counts.”

This position had not been lost on Mr. Weinzierl’s defence team, as it sought to shore up his position in respect of Counts 2 to 4. The Court acknowledged that the “[prosecution’s] commentary on these counts is limited.” One of the issues at the outset of this case has been the prosecution’s failure to properly particularise the charges set out in Counts 1 to 4. 

An application was made, after the hearing concluded but before judgment, to rely on fresh evidence relating to Odebrecht S.A.’s ongoing tax proceedings in Brazil, i.e. whether or not there had been a tax fraud in the first place. The evidence demonstrated that there are no extant civil or criminal proceedings in any competent court in Brazil in respect of the transactions that Counts 2 to 4 relate to, and as a result, it was advanced that there had been no tax fraud in respect of those transactions.  The Court first needed to decide on whether or not the fresh evidence was admissible. 

The two-stage test applied by the Court was, (i) whether the fresh evidence is evidence that was not available at Mr. Weinzierl’s extradition hearing and (ii) whether the evidence is decisive in that it would have resulted in the judge at first instance ordering Mr. Weinzierl’s discharge. The Court accepted the first limb. However, the Court rejected the second limb as being irrelevant, “in substance it amounts to a challenge to the underlying allegations that are advanced against [Mr. Weinzierl]. Such evidence is not relevant to any issue in these proceedings. It is not necessary for the [Government of the USA] to establish that there is a prima facie case, and it is not relevant for the court to enquire into whether the allegations are well-founded.” 

Mr. Weinzierl sought to rely on this fresh evidence to question whether the offences in the extradition request are sufficiently particularised and whether they amount to extradition offences. It was submitted by Mr. Weinzierl’s team that the Government of the United States must be aware of the fresh evidence and, in failing to fairly reflect this evidence, there had been an abuse of process. Therefore, the fresh evidence should be sufficient to prompt the Court to make an Tollman enquiry.  A Tollman enquiry is used where there is “reason to believe that an abuse of process may have occurred is to call upon the judicial authority that has issued the arrest warrant, or the State seeking extradition in a Part 2 case, for whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not.”

The Court rejected the assertion that there was any evidence before the Court to lead it to believe that there had been an abuse of the extradition process, i.e. the extraordinary notion that the US Government was not aware of the ongoing tax proceedings in Brazil, the actual conduct that gives rise to a predicate offence it seeks to charge Mr. Weinzierl on. The Court would not, therefore, be ordering a Tollman enquiry.

A final decision on the appeal is pending the Court’s decision on the information provided on Article 3 issues. If the Court accepts that the Government of the USA has still failed to provide the assurances to the required standard, extradition will be barred. If the Court accepts the information as provided, extradition will be permitted on Counts 2 to 4. Either way, the judgment gives rise to a possible further appeal by the parties.   

Following the Judgment, David Pack, Partner at Devonshires said “Mr. Weinzierl has rigorously protested his innocence from the outset of all charges levelled against him, a right to a fair trial, a right not to be degraded and inhumanely treated. The US prison system has reached a perilous state and is only going to deteriorate under the new administration. The Courts of England and Wales can no longer ignore the failing US prison system and have a duty to protect individuals against the degrading and inhuman treatment from being sent to a US detention facility, even more so as an innocent person pre-trial. In Mr Weinzierl’s case, the Court has also seen through the US authorities’ poorly veiled attempt to plaster over the holes of their case with a general catch-all conspiracy charge and the Court has rightly found that Count 1 is not an extraditable offence.”

Devonshires success reaffirms the importance of due process and the need for an experienced and rigorous defence in extradition proceedings.

Mr. Weinzierl is represented by David Pack, Leah Kesby and Michael Lewis of Devonshires Solicitors LLP; James Lewis KC, Ben Watson KC, and Ciju Puthuppally of 3 Raymond Buildings.

For all enquiries please contact David Pack, Partner, Litigation and Dispute Resolution.