Ruiz and Others v Central Court of Criminal Proceedings No 5 of the National Court, Madrid

JurisdictionEngland & Wales
JudgeLord Justice Dyson,Mr Justice Collins
Judgment Date14 December 2007
Neutral Citation[2007] EWHC 2983 (Admin)
Docket NumberCase No: CO/7307/2007
CourtQueen's Bench Division (Administrative Court)
Date14 December 2007

[2007] EWHC 2983 (Admin)

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

Before:

Lord Justice Dyson and

Mr Justice Collins

Case No: CO/7307/2007

Between
Zigor Ruiz Jaso, Ana Isabel Lopez, Inigo Maria Albisu Hernandez
Appellants
and
Central Criminal Court No.2 Madrid
Respondent

Richard Gordon QC and Ben Cooper (instructed by Messrs Birnberg Peirce ) for the Appellants

David Perry QC and Melanie Cumberland (instructed by Crown Prosecution Service) for the Respondent

Hearing dates: 4th and 5th December 2007

Lord Justice Dyson
1

This is an appeal by Zigor Ruiz Jaso, ("Ruiz"), Ana Isabel Lopez Monge ("Lopez") and Inigo Maria Albisu Hernandez ("Albisu") under section 26 of the Extradition Act 2003 ("the 2003 Act") against an order made for their extradition by District Judge Tubbs on 17 August 2007 pursuant to section 21(3). These proceedings are governed by Part 1 of the 2003 Act.

2

On 23 April 2007, Judge Baltasar Garzon Real of the Central Court of Criminal Proceedings No 5 of the National Court in Madrid issued European Arrest Warrants ("EAWs") in respect of the three appellants. These warrants ("the three warrants") request the return of all three appellants to Spain for the purpose of standing trial for offences of membership of a criminal organisation and terrorism. On 26 April, the Serious and Organised Crime Agency ("SOCA") certified the three EAWs in accordance with section 2(7) of the 2003 Act. On the following day, the three appellants were arrested in England.

3

On 1 May, in the cells at the City of Westminster Magistrate Court, Lopez was arrested pursuant to a further EAW which had been issued on 19 April 2007 by Judge Ismail Moreno Chamorro of the Central Magistrates' Court No 2, Madrid. This warrant ("the Lopez warrant") was certified by SOCA on 30 April. It requested the return of Lopez to Spain for the purpose of standing trial for offences of membership of the terrorist organisation ETA and possession of explosives.

The EAWs in more detail

4

Each of the three EAWs issued on 23 April contains the following text under the heading "Crimes, Description of the circumstances":

"The investigations show that, at least since April 2004 until now, and specifically in this very moment, 23 rd of April 2007, Zigor Ruiz Jaso, Ana Isabel Lopez Monge and Inigo Albisu Hernandez, at least since the beginning of 2007 until this date, are members of terrorist organisation E.T.A.

E.T.A. is an illegal organisation, and being a member of this organisation is a crime, according to Spanish law.

Spanish law establishes that participating in a terrorist gang like E.T.A. is a crime, whether the defendant is in Spain or out of Spain.

The three requested individuals –Zigor Ruiz Jaso, Ana Isabel Lopez Monge and Inigo Albisu Hernandez- belong to or form E.T.A.'s group or commando named Urderra.

When this commando was dismantled on the 27 th of March and following days, these three individuals remained as members of E.T.A., forming a new cell called "talde de reserve" (reserve group).

At the moment we have information showing that these three individuals are in Great Britain, waiting to receive instructions from their superiors in order to travel to Spain and commit terrorist attacks.

Zigor Ruiz Jaso allegedly participated in one of the last actions claimed by E.T.A., specifically in the attack made on the 28 th of March 2006 against the Social Institute of the Navy in Motrico, Guipuzcoa. The attack consisted in the placement of a explosive which caused material damages.

The three individuals could be using forged identity documents and be in possession of fire weapons. According to information received from the Information Services of the Civil Police, these three individuals could have with them fire weapons, something usual in members of E.T.A., as well as forged documents.

The individuals would have received the weapons from their immediate superiors. Said weapons would have been stolen in different actions, the last of them taking place in August 2006 in France.

Through the investigations developed with the collaboration of the Police Force, the Court has come to know that these individuals are collecting information about transportation means in order to leave the United Kingdom through different ways. One of these ways would take them to Santander. The Court knows that they have been studying this city and its surrounding area, which is the usual plan members of E.T.A. develop before committing a terrorist attack."

Each of the warrants then contains a statement of the criminal records of all three appellants. The text relating to Ruiz, for example, includes the following:

"• On the 29 th of April 2004, the Central Court of Criminal Proceedings Number Five of the National Court (Audiencia Nacional) ordered his capture, arrest and imprisonment for a crime of participation in armed or terrorist gang, being the defendant involved in judicial proceedings S 18/01 SEGI 15.02.

• On the 18 th of December 2002, the Central Court of Criminal Proceedings Number Three of the National Court (Audiencia Nacional) ordered his capture, arrest and delivery for a crime of terrorism, within judicial proceedings PV PA 58–02.

• On the 29 th of May 200 the Court of Preliminary Proceedings Number Two of Pamplona, Navarra, ordered his capture, arrest and delivery for a crime of occupation of property, being the defendant involved in judicial proceedings DP 50002B.

• According to the statement of Arkaitz Agote Cillero, within proceedings 4/07 of the 28 th of March of the Information Services of the Civil Police in Guipuzcoa, within preliminary proceedings 11/07 of the Central Court of Criminal Proceedings Number Two of the National Court (Audiencia Nacional), this individual would have participated as material author in the perpetration of a terrorist attack made on the 28 th of February 2006 against the Social Institute of the Navy in Motrico, Guipuzcoa."

There then follows in each case under the heading "Nature and legal classification of the crime" a reference to the crimes of "Participation in criminal organisation" and "terrorism".

5

The Lopez warrant was stated to be in respect of the offences of membership of an armed gang and being in possession of explosives.

The grounds of appeal

6

There are seven grounds of appeal. They are that the district judge was wrong:

i) not to hold that both EAWs are defective in that they do not contain "particulars of any other warrant in the category 1 territory [Spain] for the person's arrest in respect of the offence" as required by section 2(4)(b) of the 2003 Act;

ii) not to hold that all of the EAWs are defective in that they do not contain "particulars of the circumstances in which the person is alleged to have committed the offence" as required by section 2(4)(c) of the 2003 Act;

iii) to hold that it would not be an abuse of process to extradite the appellants despite the existence of material which suggested that the evidence relied on in support of the prosecution included the evidence of Arkaitz Agote Cillero which he said had been obtained by torture;

iv) to hold that the extradition of the appellants would not violate their rights under articles 3, 5, 6 or 8 of the European Convention of Human Rights ("the ECHR");

v) to hold that the extradition was not barred under section 11(1)(b) and 13(b) of the 2003 Act on the grounds that, if extradited to Spain, the appellants "might be….restricted in [their] personal liberty by reason of [their]….political opinions";

vi) to hold that there was no risk that, in breach of the purported commitment by Spain to its speciality arrangements, the appellants would be prosecuted for offences that fall outside the offences for which their extradition was sought;

vii) to hold that there was not, or might not be, an abuse of process in the Spanish prosecuting authorities alleging that the appellants were members of " Urederra" when a recent comprehensive investigation by the Spanish authorities into " Urederra" had not linked the appellants with that group.

Some preliminary observations

7

In considering the grounds of appeal, it is necessary to keep in mind the purpose of the Framework Decision of 13 June 2002 on the European Arrest Warrant and surrender procedures between Member States 2002/584/JHA ("the Framework Decision"). This purpose is outlined in recitals (5), (6), (10) and (11) of the preamble:

"(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.

(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial cooperation.

(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by...

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