Onder 3.21 Parket bij de Hoge Raad 11 maart 2022

29. The Court notes that the applicant does not argue that the extradition would not be in accordance with the law and thus the only matter which falls to be considered is the proportionality of the extradition to the legitimate aims set out in the second paragraph of Article 8. At the outset, the Court observes that the Convention does not provide a right to be prosecuted in a particular jurisdiction but considerations as to whether prosecution exists as an alternative to extradition may have a bearing on whether the extradition would be in violation of the one of the rights guaranteed by the Convention (see, for example, Soering, cited above, § 111). Nonetheless, in the present case, the United Kingdom authorities have given convincing reasons as to why they regard it as appropriate for any prosecution to take place in Australia, not least that the applicant’s co‑accused have all been tried there. Therefore, in deciding to allow the extradition to proceed, the United Kingdom authorities were entitled to conclude that this pursued the legitimate aim of preventing disorder or crime provided for in Article 8 § 2 (Aronica v. Germany (dec.), no. 72032/01, 18 April 2002). In considering whether the applicant’s proposed surrender to Australia struck a fair balance between any interference with the applicant’s right to respect for his family life in the United Kingdom and that legitimate aim, they were also entitled to have regard to their international obligations to Australia. Mindful of the importance of extradition arrangements between States in the fight against crime (and in particular crime with an international or cross-border dimension), the Court considers that it will only be in exceptional circumstances that an applicant's private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition (see Launder v. the United Kingdom, no. 27279/95, Commission decision of 8 December 1997). In the applicant's case, the Court notes that he relies on the fact that he has a wife, two young children and a mother in the United Kingdom, whose ill-health would not allow her to travel to Australia. This, in the Court's view, is not an exceptional circumstance which would militate in favour of the applicant's non-extradition. Although the long distance between the United Kingdom and Australia would mean the family would enjoy only limited contact if the applicant were extradited, convicted and sentenced to a term of imprisonment there, the Court cannot overlook the very serious charges he faces (see Raidl v. Austria , no. 25342/94, Commission decision of 4 September 1995). Given those charges, and the interest the United Kingdom has in honouring its obligations to Australia, the Court is satisfied that the applicant's extradition cannot be said to be disproportionate to the legitimate aim served. It follows that this part of the application must be also rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.”

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