Antonio Troitino Arranz v Spanish Judicial Authority
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 14 June 2013 |
| Neutral Citation | [2013] EWHC 1662 (Admin) |
| Docket Number | CO/1311/2013,Case No: CO/1311/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 June 2013 |
[2013] EWHC 1662 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Mr Justice Simon
Case No: CO/1311/2013
Mark Summers & Joanna Buckley (instructed by Birnberg Peirce) for the Appellant
Jonathan Hall & Ben Lloyd (instructed by CPS/IJA) for the Respondent
Approved Judgment
Hearing date: 20 March 2013
President of the Queen's Bench Division
The appellant appeals against the judgment of District Judge Michael Snow at the Westminster Magistrates' Court given on 1 February 2013 ordering his surrender to the respondent Judicial Authority under a conviction European Arrest Warrant (EAW) issued on 26 April 2011. Three issues arise on the appeal:
i) Did the EAW comply with s.2 of the Extradition Act 2003 (the 2003 Act)?
ii) Was there an abuse of process?
iii) Would extradition to Spain result in the imposition of a retroactive penalty in breach of the appellant's rights under Article 7 and therefore arbitrary detention in breach of Article 5?
It will be necessary to set out the facts in a little detail as the issues turn upon a series of decisions made in the case of the appellant and a co-defendant, Miss Del Rio Prada, in respect of sentences imposed on the appellant of 2,232 years on 7 November 1989, the aggregation of those sentences to a specified maximum sentence and the remission due in respect of that sentence or the sentences.
Factual background
The appellant was a member of a cell operating in Madrid which committed terrorist acts to further the aims of ETA. The appellant and other members of the cell planned to attack vehicles used by the Spanish security forces in Madrid; they prepared an explosive device, filling five pressure cookers with nuts, bolts, metal rods and chain links and connected 35 kilograms of plastic explosives to the cookers. On 14 July 1986 the appellant and others placed the explosives in a van which they parked on the Plaza de la República Dominicana in Madrid. As a convoy of Civil Guard vehicles approached the location, the explosive device in the van was detonated; 11 members of the Civil Guard were killed in the explosion, 43 of the members of the Civil Guard and 17 civilians were injured. Substantial damage to property was caused.
In November 1989 the appellant was convicted of 91 offences in proceedings numbered 31/86 in the Central (Investigative) Court Five. On 7 November 1989 in proceedings numbered 54/89 the court imposed upon him one sentence of 30 years for a terrorist offence resulting in death, 11 sentences of 29 years imprisonment for the 11 offences of murder and 78 sentences of 24 years imprisonment for 78 offences of attempted murder and 11 years imprisonment for an offence of havoc. These sentences were all consecutive to each other and amounted to a total of 2,232 years imprisonment.
Miss Del Rio Prada, a co-defendant, was sentenced to a similar sentence on the same occasion.
The Audiencia Nacional at Madrid by an order made on 18 May 2000 and amplified by further order dated 9 June 2000 combined these sentences and other sentences imposed on the appellant and fixed the combined term to be served at 30 years, that period being the maximum limit applicable under Article 70 of the 1973 Spanish Criminal Code. Without remission the appellant's sentence would have expired in January 2017.
At the time the Audiencia Nacional fixed the sentence at 30 years in 2000, Spanish law provided that remission for good work during his sentence or credit for time served during preventive detention could be credited as against the 30 year sentence. That law was laid down by an order of the Spanish Supreme Court dated 25 May 1990, in a judgment of 18 March 1994 and other judgments of the Spanish Supreme Court in 2005: see the judgment of the Third Section of the Strasbourg Court in Del Rio Prada v Spain (Application No. 42750/09 at paragraphs 24–26).
Some time during 2008, in accordance with that law, the appellant's release date was fixed as 4 February 2011.
By a judgment dated 28 February 2006 the Spanish Supreme Court changed the earlier case law in relation to remission and introduced what is known as the "Parot Doctrine" under which remission is applied to each sentence individually (in the case of the appellant the sentence of 2,232 years) and not to the maximum 30 year term: see the judgment in Del Rio Prada v Spain at paragraphs 27–30.
On 17 January 2011, shortly before the appellant's scheduled release date, the prison authorities sought the determination by the Audiencia Nacional at Madrid of the application of the Parot Doctrine to the appellant, as he had accumulated 2,164 days of remission.
On 10 March 2011 the Third Section of the Audiencia Nacional at Madrid applied the Parot Doctrine to the appellant's case and ruled that remission attached to the total of the sentence, namely 2,232 years and not to the accumulated maximum total of 30 years. His release was recalculated as 7 January 2017.
In other proceedings, the precise purpose of which is unclear, the Audiencia Nacional decided that the appellant had completed his sentence and ordered his release on 13 April 2011. That decision was erroneous and was revoked by the court on 19 April 2011. In the meantime the appellant had been released and immediately had come to the UK.
On 27 October 2011 the Audiencia Nacional at Madrid rejected the appellant's challenge to the order of 10 March 2011 concerning the retroactive application to him of the Parot Doctrine.
As we have set out, Miss Del Rio Prada was sentenced in respect of the offence of which the appellant had been convicted and subsequently other offences. The total of those sentences amounted to over 3,000 years imprisonment. However, by operation of Article 70 of the 1973 Criminal Code the combined effect of the various sentences was fixed at 30 years. Her release date was fixed applying the pre-Parot Doctrine case law to expire, with remission, in 2008. However, prior to her release, the Audiencia Nacional in Madrid ruled, applying the Parot Doctrine to her case, that remission attached to the total sentence of 3,000 years and not to the accumulated total of 30 years. Her release date was thus recalculated to 2017. Challenges to those decisions, including a challenge before the Spanish Constitutional Court failed.
Miss Del Rio Prada then made an application to the ECtHR at Strasbourg. In a judgment on 10 July 2012 (to which we have made reference), the Third Section held that the retroactive application of the Parot Doctrine to her sentence violated Article 7 of the Convention and, in so far as it purported to justify the continued detention of a defendant, Article 5. On 22 October 2012 the decision of the Third Section was referred to the Grand Chamber of the Court. The decision is awaited.
Issue 1: Was it a valid EAW in that it complied with s.2 of the 2003 Act?
S.2 of the 2003 Act provides that a warrant must contain the statement referred to in sub-section (5) and the information referred to in sub-section (6). Sub-section (6) provides:
"The information is
(b) particulars of the conviction;
…
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence;"
The information set out in the EAW was:
" (b) Decision on which the warrant is based
1. Arrest warrant or judicial decision having the same effect: Type: Enforceable Judgment: Judgment from 7 November 1989, number 54/89, executable from 22 January 1991
2. Reference: Ejecutoria 5/2000 (Rollo de Sala 16/86, Sumario 31/86 del Juzgado Central de Instrucción n. º 5) [Final Judgement 5/2000 (Case file Number 16/86, Committal Proceedings 31/86 of the Central Investigative Court Number 5)]
(e) Indications on the length of the sentence
1. Maximum length of the custodial sentence or detention order which may be imposed for the offence(s): 30 years imprisonment
2. Length of the custodial sentence or detention order imposed: 30 years imprisonment as limit of the time to be effectively served of the 30 years imprisonment sentence for the offence of terrorist attack resulting in death; of eleven sentences of 29 years imprisonment for eleven offences of accomplished murder; of 78 sentences of 24 years imprisonment for the same number of offences of attempted murder and eleven years imprisonment for an offence of havoc.
Remaining sentence to be served: 2096 days"
The warrant then set out in considerable detail the facts and legal provisions relating to the offences of which he had been convicted. It stated under (f), "other circumstances relevant to the case";
"There is no lapsing of the sentences imposed because they started to be served in a cumulative way with other responsibilities on 16 January 1987 nonstop till the 13 April 2011 when his release from prison was decreed. By virtue of a court order dated 19 April 2011 an arrest warrant was issued to serve 2096 more days as the rest of the effective 30 years resulting from the accumulation of sentences"
It was contended on behalf of the appellant that the EAW was invalid as it identified the enforceable judgment as that of November 1989, referred to proceedings in 1986, but did not contain any particulars of what was referred to as the final judgment of 5/2000; neither the date nor the terms of that...
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