Inaki Lerin Sanchez v The Second Section of the National High Court of Madrid, Spain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith |
| Judgment Date | 26 July 2013 |
| Neutral Citation | [2013] EWHC 2264 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3580/2013 |
| Date | 26 July 2013 |
[2013] EWHC 2264 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Keith
Case No: CO/3580/2013
Mr Mark Summers (instructed by Birnberg Peirce) for the Appellant
Mr Ben Watson (instructed by the Crown Prosecution Service) for the Respondent
Introduction
On 29 June 2012, the appellant, Inaki Lerin Sanchez, was arrested pursuant to a European Arrest Warrant which had been issued on 7 May 2007 by the Second Section of the National High Court of Madrid, Spain. He was produced at Westminster Magistrates' Court later that day. At the time of the appellant's arrest, the warrant had not been certified by the Serious Organised Crime Agency ("SOCA"), but it was certified by SOCA later that day, and the appellant was then re-arrested in the cells at Westminster Magistrates' Court. The warrant was what is colloquially called an accusation warrant. It sought the appellant's extradition to Spain so that he could be tried on two charges: one of membership of an armed organisation contrary to Arts. 515 and 516 of the Spanish Criminal Code, and one of possession of explosives contrary to Art. 573 of the Spanish Criminal Code. An extradition hearing took place at Westminster Magistrates' Court on 20 February 2013. District Judge Evans reserved judgment.
Following a submission advanced at the hearing about the validity of the warrant, a second warrant was issued on 5 March by the court in Spain. That was certified by the SOCA on the following day. The district judge was due to hand down his judgment on 19 March, but before he did so, the appellant was re-arrested on the new warrant, the original warrant was withdrawn, and the extradition hearing in respect of the new warrant was held that day. The district judge treated the submissions which had previously been made as having been made in respect of the new warrant, and he proceeded to hand down his judgment. By that judgment, he ordered the appellant's extradition to Spain on the new warrant. The appellant now appeals against that order.
Spain has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Accordingly, the appellant's extradition to Spain is governed by Part 1 of the Act. Section 21(1) of the Act — which is in Part 1 of the Act — requires the court to decide whether someone's extradition would be incompatible with their rights under the European Convention on Human Rights ("the Convention"). The only ground of appeal is that the district judge ought to have concluded that the appellant's extradition would amount to a breach of his right to a fair trial protected by Art. 6 of the Convention. It is said that his trial would not be fair because the evidence which is likely to be used against him was obtained by torture.
The facts
The charges which the appellant faces arose out of his alleged membership of ETA, the Basque separatist movement. On 31 March 2007, an address in a town in Navarre was searched. It was alleged to have been rented in the appellant's name, and used by the appellant and his brother, Jose Angel Lerin Sanchez. A large quantity of explosives, nitrate, detonation fuses, bolts and iron balls and about 150 kgs of aluminium powder were found there, along with various devices with the ETA symbol, ETA's internal newsletter no. 111 and other ETA publications.
The Spanish authorities are not obliged, of course, to identify the evidence which the prosecution proposes to rely on at the appellant's trial. But the appellant's brother has already been tried and convicted in Spain on the same two charges as the appellant faces, and the appellant's legal team say that they can confidently expect what the evidence to be relied on by the prosecution at the appellant's trial will be. It will include, of course, what was found at the address in the town in Navarre, and the evidence which links the appellant to that address, but it is likely to include as well what his brother is alleged to have told the police implicating the appellant in the two offences.
The appellant's case is that much, if not all, of this evidence was obtained by torture. The address in the town in Navarre is said to have been given by the appellant's brother following his arrest on 28 March 2007, and while he was being held incommunicado and was being interrogated by the Guardia Civil. And it was during that interrogation that the appellant's brother is said to have implicated the appellant. The appellant's case is that his brother only implicated him, and only gave the Guardia Civil the address in the town in Navarre, as a result of his ill-treatment during the time when he was being held incommunicado.
The evidence of that ill-treatment comes principally from what the appellant's brother told his lawyer, and subsequently the court at his trial. That was that following his arrest he was kept incommunicado by the Guardia Civil for five days, first at their local headquarters in the Basque region, and later at their national headquarters in Madrid. He was not allowed during that time to speak to a lawyer, not even a state-appointed one. Although he had the services of a state-appointed lawyer when he was first questioned by the investigating magistrate five days after his arrest, he had not been allowed to consult with the lawyer privately beforehand. When he saw his own lawyer for the first time later that day, he alleged that he had been tortured. He claimed that he had been beaten up and asphyxiated, forced to do physical exercise and deprived of sleep. His lawyer said that when he first saw him, his nose was swollen, and that he appeared exhausted and disorientated. His claims, his lawyer said, were very similar to the claims made by other defendants who were arrested at about the same time in connection with terrorist offences.
While being held incommunicado, the appellant's brother was seen a number of times by a medical forensic examiner. Over those five days, he claimed to her that "rubbish bins" (which may have been a mistranslation for "bin liners") had been put "on" (which may have been a mistranslation for "over") his head to choke him, that he had been beaten senseless, that he had been struck in the neck, jaw, nose, head, back, kidneys and testicles, that he had been wrapped in blankets to make him sweat, and that he had been prevented from sleeping. However, she saw no clinical signs of ill-treatment, save for a minor contusion on the left side of his head, and although he was complaining of severe pain in his neck, X-rays from the hospital to which he had been taken while he was being held incommunicado had not revealed any pathological signs of injury to his neck or back.
Incommunicado detention
The fact that the appellant's brother was held incommunicado is not denied by the Spanish authorities. Indeed, it is permitted under Spanish law. The effect of it is that someone detained incommunicado is denied access to legal advice and assistance — at a time when it might be said that he is in particular need of it, namely when he is about to be questioned by the authorities. A state-appointed lawyer is permitted to be present as an observer only, and only when the detainee makes a formal statement. If the defendant says something of significance, he is produced at that stage before an examining magistrate for the making of the statement to be confirmed, and he may be questioned by the magistrate, but again without legal advice or assistance. More significantly for present purposes, without the oversight which an independent lawyer can bring to the process, the incommunicado regime is said to render detainees particularly vulnerable to ill-treatment.
This latter concern has been expressed in a number of quarters. A paper published in " Torture" (vol. 18, no. 2, 2008, p.87), based on interviews with 112 Basques held in incommunicado detention between 2000 and 2005, suggested that torture was a serious problem for such detainees. So did the authors of a report commissioned by the Office on Human Rights in the relevant department of the Basque Government. Human Rights Watch produced a report in 2005 critical of the incommunicado regime (although it dealt only in passing with the ill-treatment of those held in incommunicado detention). And Amnesty International has produced two reports — published in 2007 and 2009 respectively — dealing with the ill-treatment of people in custody generally, not just those held in incommunicado detention. Indeed, in its report following its visit to Spain in September 2007, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT") referred to the allegations of ill-treatment which the appellant's brother and others who had been arrested at the same time as him were making, noting that they all described a similar pattern of ill-treatment. Over the years, the CPT has made a number of recommendations aimed at strengthening the protection of persons held in incommunicado detention from torture and other forms of ill-treatment, and in its report following its visit to Spain in September 2007, it noted that as things stood then Spanish authorities might experience some difficulty in (a) refuting convincingly allegations of ill-treatment made by people held in incommunicado detention, and (b) fulfilling their obligation to undertake effective investigations into such...
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