Raul Angel Fuentes Villota v The 2nd Section of the National High Court of Madrid, Spain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 29 July 2014 |
| Neutral Citation | [2014] EWHC 2623 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5734/2013 |
| Date | 29 July 2014 |
[2014] EWHC 2623 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: CO/5734/2013
Mark Summers QC (instructed by Birnberg Peirce & Partners) for the Appellant
Peter Caldwell (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 4 July 2014
Introduction
The Spanish authorities consider that the Appellant is, or at the material time was, a member or supporter of Euskadi Ta Askatasuna ('ETA'), the Basque nationalist and separatist organization.
The Appellant, who was born in Bilbao, is now aged 47.
Along with others the Appellant was arrested in the early morning of 6 June 1991 in circumstances set out in the European Arrest Warrant ('EAW') to which I will refer below. He spent 4 years in custody in Spain awaiting trial, but by June 1995 the trial had not commenced and, because the maximum period of pre-trial detention in Spain (equivalent to the 'custody time limit' in the jurisdiction of England and Wales) is 4 years, he was released from custody conditionally on 9 June 1995.
Having breached the terms of his conditional release an order for his remand in custody was issued by the 5 th Section of the National High Court of Madrid on 5 or 6 September 1995. He did not surrender to the court in compliance with that order and at some stage he came to the UK. He accepts that he left Spain knowing of the outstanding criminal proceedings against him.
An EAW was issued over 16 1/2 years later on 27 June 2012 seeking his extradition to Spain to face trial. On 16 November 2012 he was arrested in Liverpool after 17 years of being "wanted" in Spain.
The Appellant contested his extradition. The final extradition hearing took place before District Judge Nicholas Evans on 16 April 2013. In a reserved judgment delivered on 7 May 2013, the District Judge ordered the Appellant's extradition to Spain.
He appeals to this court against that decision pursuant to section 26 of the Extradition Act 2003.
The terms of the EAW
The warrant is, as I have indicated, an accusation warrant. The (translated) particulars given in the warrant of the alleged offences in respect of which extradition is sought are as follows, the numbering being numbering I have added for ease of subsequent reference:
"1. [The Appellant and others] were recruited for the terrorist organisation E.T.A. Militar in 1990. They were trained in handling arms and explosives, in a flat located in Deusto. They were told the objectives to be pursued. They were given weapons and explosive material and information. On various occasions they carried out verifications and collected much information on members of law enforcement bodies, drug dealers, the Civil Governor in Biscay, supported various actions and carried out the orders given by "Gadafi", "Manu" and "Turko".
Apart from this they had several hiding places filled with arms and explosive material to be precise:
a) a mobile fridge hidden in Archanda Hill, inside of which were an automatic rifle M.A.T. with its numeration wiped off, two magazines, two grenades made in France as well as one grenade type E.T.A, and an explosives handbook;
b) a hiding place located in Trapaga Valley (Biscay) that was hidden by sleepers. It contained screws for shrapnel;
c) A hiding place located at Archanda Hill. This hiding place was made by GERMAN URIZAR, in the vicinity of the Tueba School. This hiding place contained a bag with a pair of surgical gloves;
2. From the 6th of June 1991 on, two pistols make Browning and one pistol make Sig Sauer were seized from JON MIRENA, [the Appellant] and GERMAN URIZAR. All serial and manufacturing numbers had been wiped off. On the 22nd of May 1991, RAUL ALONSO ALVAREZ, following the orders given by the three ETA members TURCO, GADAFI and MANU, left the group and handed over his pistol and an explosive device which he and GERMAN URIZAR had received from the three ETA members at the Deusto flat since it did not work. Two hours later they gave back that device to the last individual mentioned in order that he places that device in a vehicle that belongs to a police officer who was living in Baracaldo. The vehicle was a white Ford Scort, with license plate VA-4061-P. They had already informed about this vehicle. This vehicle used to be parked in Calle Landabeko.
3. For the purpose of carrying out the action that had been ordered by JUAN CARLOS IGLESIAS CHOUZA, JESUS MARIA MENDINUENTA and JUAN MARIA ORMAZABAL, in the first place they kept the pistols and device at JON MIRENA's home. JON MIRENA, [the Appellant] and GERMAN URIZAR DE PAZ picked up those items once they had carried out several verifications regarding the place where the car in which the explosive had to be placed used to be parked. In the early morning of the 6th of June 1991 they cautiously approached the vehicle but could not place the explosive since they were caught by police when trying to do so.
4. When police officers shouted "STOP POLICE", [the Appellant] left the weapon he was carrying on the vehicle roof. GERMAN URIZAR who was carrying the bag with the explosives as well as JON MIRENA started running, but not without first throwing the bag to the ground and firing several rounds at the corner of Calle Lukizago. They did not succeed in shooting the police officers, but police officers had to return fire. Eventually both men were arrested."
Deusto, referred to in (1), is a district of Bilbao.
The warrant refers to the "nature and classification" of the offences and the applicable parts of the Spanish Criminal Code, all of which were summarised as follows:
i) 'membership in a terrorist organisation' (referred to elsewhere in the warrant as 'participation in an armed group') — punishable by 10 years imprisonment and a fine of €6,000 — contrary to Articles 147 (which is thought to be a typing error for '174') and 173;
ii) 'attack … in conjunction with the offence of attempted murder' — punishable by 20 years imprisonment — contrary to Articles 233 and 406;
iii) 'possession of weapons of war' – punishable by 12 years imprisonment — contrary to Articles 257 and 258;
iv) 'possession of explosives' – punishable by 12 years imprisonment — contrary to Article 264.
The EAW was issued by Judge Fernando Garcia Nicolas on (as previously indicated) 27 June 2012 and certified by SOCA on 23 October 2012.
Certain further information was requested by the Respondent from the judicial authority and the prosecution in Spain in March 2013 to which I will refer later.
I will refer to the reasons given by the District Judge for the decision to which he came when dealing with the Grounds of Appeal advanced before me.
The hearing of the appeal was delayed pending judgment in the case of Sanchez v The Second Section of the National High Court of Madrid, Spain [2013] EWHC 2264 (Admin) and then the Supreme Court's decision on the application for leave to appeal against Artola v The Sixth Section of the National High Court of Madrid, Spain [2013] EWHC 524 (Admin). Permission in that case was refused by the Supreme Court on 28 October 2013 on the basis that the case did not raise an arguable point of law which could lead to a different substantive result.
The grounds of appeal
Mr Mark Summers QC, for the Appellant, relies upon three of the four grounds of appeal originally advanced. He accepts that there is no prospect of succeeding on Ground 2 in the light of the outcome in Artola v The Sixth Section of the National High Court of Madrid, Spain, but he reserves the right to take the point if this case should go further. I say nothing more about that ground.
The other grounds can be summarised as follows:
Ground 1
The District Judge erred in concluding that the EAW contained adequate particulars of the conduct alleged in respect of offences numbered 3 and 4 above pursuant to section 2(4)(c) of the 2003 Act.
Ground 3
The District Judge erred in concluding that the extradition of the Appellant was not a violation of Articles 5 and/or Article 8 of the ECHR or section 64 of the 2003 Act, in circumstances where the limitation period has expired under Spanish law.
Ground 4
The District Judge erred in concluding that the extradition proceedings were not an abuse of process, in circumstances where the Appellant had been tortured by the Requesting State.
Ground 1
It is, perhaps, helpful to indicate in the first instance the District Judge's reasoning, which itself encapsulates the arguments advanced to a degree, and then to deal with the criticisms made by Mr Summers. I should say that submissions were made before the District Judge about the adequacy of the particulars in relation to charges 1 and 2, but the criticisms then made are no longer pursued. The District Judge's conclusions on the arguments relating to charges 3 and 4 were as follows:
"6. Section 2(4)(c) of the Act requires the EAW to provide particulars of the circumstances in which the person is alleged to have committed the offence including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence.
…
9. It is submitted the third offence, possession of weapons of war, lacks specificity as it (the offence) might relate to (a) those with which the [Appellant] trained in the flat in Deusto in 1990, (b) those that were supplied to him after his training, (c) the rifle hidden in the...
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