Antonio Troitiño Arranz v The 5th Section of the National High Court of Madrid, Spain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 25 November 2016 |
| Neutral Citation | [2016] EWHC 3029 (Admin) |
| Docket Number | Case No: CO/3129/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 November 2016 |
[2016] EWHC 3029 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION, Sir Brian Leveson AND The Honourable Mr Justice Leggatt
Case No: CO/3129/2016
Mark Summers QC and Laura Dubinsky (instructed by Birnberg Peirce Solicitors) for the Appellant
Ben Lloyd (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 1 November 2016
Mr Justice Leggatt (giving the judgment of the court):
Introduction
These proceedings are the fourth attempt by the respondent (Spain) to extradite the appellant (Mr Troitiño) under a European arrest warrant. On 14 June 2016 Senior District Judge Riddle ordered Mr Troitiño's extradition to Spain for the purpose of being prosecuted for an offence of membership of a terrorist organisation. Mr Troitiño has appealed against that order, with leave of the court.
There are three issues on the appeal:
i) Is extradition barred under section 12A of the Extradition Act 2003 by the absence of a decision by the Spanish authorities to try Mr Troitiño?
ii) Are these proceedings an abuse of process because Spain has acted in bad faith and/or is seeking to raise matters which could and should have been raised in previous extradition proceedings?
iii) Does Mr Troitiño have an immunity under article 31 of the Refugee Convention which prevents his extradition?
The factual background
The history of the matter up to the point when the third extradition attempt failed is set out in the judgment of this court in Spanish Judicial Authority v Antonio Troitiño Arranz (No 3) [2015] EWHC 2305 (Admin) dated 31 July 2015. In a nutshell:
i) In 1986 Mr Troitiño was a member of the Basque separatist group, ETA. With others, he was responsible for a terrorist bombing in Madrid which killed 11 members of the civil guard and injured 60 people.
ii) In 1989 Mr Troitiño was convicted of 91 offences including offences of terrorism, murder and attempted murder for his part in the attack and was sentenced to a total of 2,232 years' imprisonment.
iii) In 2000 a Spanish court fixed the prison term which Mr Troitiño must serve at 30 years, which was the maximum limit applicable under the Spanish Criminal Code. Without remission, this term would have expired in January 2017.
iv) At the time of sentence remission earned for good conduct was credited against the 30 year maximum term under Spanish law. However, in 2006, in a case involving another ETA prisoner, the Spanish Supreme Court decided that remission was to be applied successively to the individual sentences (which in Mr Troitiño's case totalled 2,232 years) and not to the 30 year maximum term. This became known as the "Parot doctrine".
v) Mr Troitiño had accumulated 2,164 days of remission which, if applied to the 30 year maximum term, would have resulted in his release on 4 February 2011. On 1 February 2011 a Spanish court ruled, applying the Parot doctrine, that the remission should instead be applied to the sentences totalling 2,232 years, with the result that he was not due to be released until January 2017.
vi) Mr Troitiño was nevertheless released pursuant to a court order on 13 April 2011. That order was revoked on 19 April 2011 but by then Mr Troitiño had left Spain. A European arrest warrant was issued on 26 April 2011, seeking his arrest in order to return him to prison.
vii) On 29 June 2012 Mr Troitiño was arrested in the UK. False identity documents were seized from him.
viii) Shortly after his arrest, the Third Section of the European Court of Human Rights held in the case of another ETA member that the retroactive application of the Parot doctrine violated article 7 and, insofar as it was relied on to justify detention, also article 5 of the European Convention on Human Rights: see Del Rio Prada v Spain (Application No 42750/09), 10 July 2012.
ix) Spain appealed to the Grand Chamber and in the meantime continued to seek Mr Troitiño's extradition pursuant to the European arrest warrant. On 14 June 2013 this court upheld an order for extradition on the basis of an undertaking that Spain would abide by the Grand Chamber's decision: see Troitiño Arranz v Spanish Judicial Authority [2013] EWHC 1662 (Admin).
x) However, before an application by Mr Troitiño for leave to appeal to the Supreme Court had been determined, the Grand Chamber delivered a judgment upholding the decision of the Third Section: see Del Rio Prada v Spain (2014) 58 EHRR 37. Mr Troitiño immediately applied to re-open his extradition appeal and on 27 November 2013 the Divisional Court quashed the order for his removal and ordered Mr Troitiño's discharge.
xi) On 10 January 2014 Spain issued a second European arrest warrant seeking Mr Troitiño's extradition on a new basis. His extradition was now sought for the purpose of prosecution for offences of (a) forgery of official documents (being the false identity documents seized on his arrest in the UK) and (b) membership of a terrorist organisation (the allegation being that on his release from prison he had rejoined ETA).
xii) On 17 October 2014 the Westminster Magistrates' Court held that the warrant did not comply with section 2 of the 2003 Act and Mr Troitiño was again discharged. Spain responded by issuing a third European arrest warrant on 17 November 2014, curing this defect, and Mr Troitiño was re-arrested.
Troitiño Arranz (No 3)
Mr Troitiño resisted extradition under the third European arrest warrant on a number of grounds. His central contention was that he was being treated unfairly by the Spanish judiciary and could not expect a fair trial in Spain because he is a convicted ETA terrorist. It was said that the release of ETA prisoners has provoked public outrage in Spain and that Spanish judges have succumbed to public and political pressure by engaging in such cases in "judicial engineering" – that is to say, being prepared to bend the law in order to keep convicted ETA terrorists in prison. The Parot doctrine was said to be a manifestation of this. It was further alleged that, when reliance on that doctrine failed, new charges had been concocted in order to put Mr Troitiño back in prison. Mr Troitiño's case was supported by evidence from an expert on Spanish politics, Mr Woodworth, and from a Spanish lawyer, Mr Casanova.
In his written findings of fact and reasons dated 14 April 2015, the Senior District Judge reviewed the evidence and rejected the allegation that Mr Troitiño was or would be a victim of "judicial engineering". He found that there was no real risk that the Spanish courts would treat Mr Troitiño on his return other than properly and fairly or would make any decisions on the basis of political pressure. Other grounds on which Mr Troitiño relied, including section 12A of the 2003 Act and article 31 of the Refugee Convention, which he relies on again in these proceedings, were also rejected.
The Senior District Judge discharged Mr Troitiño on the forgery offence as he was not satisfied that any part of the relevant conduct had occurred in Spain so that it did not constitute an "extradition offence" within the meaning of section 64 of the 2003 Act. But he ordered Mr Troitiño's extradition on the alleged offence of membership of a terrorist organisation.
Mr Troitiño appealed against that order to this court, which allowed the appeal: see Spanish Judicial Authority v Antonio Troitiño Arranz (No 3) [2015] EWHC 2305 (Admin) (" Troitiño Arranz (No 3)"). In relation to the allegation of "judicial engineering", the court carefully considered the evidence that was before the Senior District Judge but was unable to conclude that his decision was wrong (see para 28). The court also rejected certain other grounds of appeal including an argument that prosecution of Mr Troitiño for the alleged offence of membership of a terrorist organisation was untenable in Spanish law and hence an abuse of process. The ground on which the appeal succeeded was that extradition was barred under section 12A of the 2003 Act. This provision remains in issue on the present appeal and requires some explanation.
Section 12A
Section 12A bars a person's extradition to a category 1 territory if (i) the competent authorities in the territory have not made both a decision to charge the person with and a decision to try the person for the extradition offence, and (ii) the person's absence from the territory is not the sole reason for that failure. If it appears to the appropriate judge that there are reasonable grounds for believing that the two conditions which create a bar to extradition are met, the burden falls on those representing the category 1 territory to prove (to the criminal standard) that they are not.
The decision in Kandola
In Kandola v Generalstaatwaltschaft Frankfurt Germany [2015] EWHC 619 (Admin), [2015] 1 WLR 5097, a Divisional Court expressed the view that, where the burden falls on those representing the category 1 territory to prove that (i) both a decision to charge and a decision to try the requested person have been made, or if not, (ii) that the sole reason for that fact is the absence of the requested person from the category 1 territory, then in the vast majority of cases a short, clear statement from the relevant judicial authority addressing those matters should be determinative. The court also considered that, in a case where there has been no decision to charge or no decision to try the requested person, it is relevant in deciding whether the person's absence from the territory is the sole reason for that failure to know whether the relevant judicial authority has considered the possibility of using mechanisms short of extradition to question the...
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