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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Arranz v The 5th Section of the National High Court of Madrid, Spain  EWHC 3029 (Admin) (25 November 2016)
Cite as:  EWHC 3029 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Antonio Troitiño Arranz
|- and -
|The 5th Section of the National High Court of Madrid, Spain
Ben Lloyd (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 1 November 2016
Crown Copyright ©
Mr Justice Leggatt (giving the judgment of the court):
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
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  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)
The decision in Kandola
Kandola is followed in Troitiño Arranz (No 3)
"This is the only activity pending for the conclusion [of the instrucción phase of the proceedings]. I can confirm that, in issuing [the earlier] certificate, I had considered whether there was any suitable alternative means of interviewing the defendant in this case, including for example the use of mutual legal assistance and video link. I can confirm, having considered this, that the position remains as set out in the document of 13 February 2015; the only reason in this case why a decision to try has not yet been taken is exclusively the absence of the defendant from Spain."
"(5) In the light of these matters and of evidence which we have considered under the first issue, 'judicial engineering', and the concerns we have expressed, the failure to answer the simple points raised by Mr Casanova cannot be accepted in this particular case.
(6) Even if Kandola was wrongly decided (which we think it was not) and the usual position is that it is permissible to accept the unreasoned statement of a judicial authority, it would not in the circumstances of this case be appropriate to accept the unreasoned statement of the Spanish Judicial Authority."
Spain requests MLA
Section 12A reconsidered in Puceviciene
"[Section 12A] was not designed to enable a requested person to remain in the United Kingdom for as long as possible by forcing the requesting judicial authority to carry out part of its processes in this jurisdiction."
Third, if Parliament had intended that extradition should not take place unless MLA has been considered and rejected for sound reasons, it would have said so explicitly (para 75). Fourth, Parliament made explicit provision for the use of MLA in section 21B of the 2003 Act, which is a strong indication that failure to contemplate the use of MLA was not intended to provide a bar to extradition (paras 76-81).
(1) Is extradition still barred by section 12A?
"There may be, in what we would anticipate would be very rare cases, circumstances in which mutual trust and confidence has broken down, or where there is cogent evidence of bad faith or of abuse. In those circumstances, it may well be appropriate to go behind the answers and seek more information. [Troitiño Arranz (No 3)] provides a rare example of the problems, there described as 'judicial engineering' which justify that different approach, and what it says should be read in the context of the very special circumstances of that unusual case."
See also para 76, where it was said that MLA should be considered only in the context of section 21B, "absent the sort of breakdown of trust in answer to questions and requests which occurred in [Troitiño Arranz (No 3)]."
(2) Abuse of process
"a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
See also Dexter Ltd v Vlieland-Boddy  EWCA Civ 14, para 49(iv)-(vi), approved in Aldi Stores Ltd v WSP Group plc  1 WLR 748, para 6.
i) Spain did explore the possibility of making a request for Mr Troitiño to be examined in a UK court but was advised by the Home Office (albeit incorrectly) that this was not possible;
ii) Spain's evidence shows that such an examination, even if conducted, would not enable Spain to proceed to a decision to try in Mr Troitiño's absence; and
iii) It has now in any event been established that the use of MLA is legally irrelevant to the question whether extradition is barred under section 12A.
(3) Article 31 of the Refugee Convention
"The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."
Was Mr Troitiño a refugee?
"… owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …"
"A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee."
"(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under article 15(2) of the European Convention …"
Article 9(2)(c) gives as one example of an act of persecution, punishment which is disproportionate or discriminatory.
"… we interpret the phrase … to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, colour or kinship ties, or in some circumstances it might be a shared experience such as former military leadership or land ownership."
Did Mr Troitiño fulfil the other conditions of article 31?
"the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing."
Simon Brown LJ also quoted in this regard (at 678F-H) the following passage from guidelines issued by the UNHCR:
"The expression 'coming directly' in article 31(1) covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection, safety and security could not be assured. It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept 'coming directly' and each case must be judged on its merits."
Is the alleged terrorism offence covered by article 31?
The effect of article 31
"having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he –
(a) presented himself to the authorities in the United Kingdom without delay;
(b) showed good cause for his illegal entry or presence; and
(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom."
The offences to which section 31 applies in England and Wales are specified in subsection (3) and comprise offences under Part 1 of the Forgery and Counterfeiting Act 1981 and offences of deception and falsification of documents under the Immigration Act 1971.
The geographical scope of article 31
Note 1 See the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention of the European Union on Mutual Assistance in Criminal Matters of 29 May 2000. [Back] Note 2 See UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1992) at para 28. [Back] Note 3 Council Directive 2004/83/EC of 29 April 2004. [Back] Note 4 See UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999) at para 4. [Back] Note 5 See Adimi at 679B and UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999) at para 4. [Back] Note 6 Simon Brown LJ appeared to consider that article 31, through the doctrine of legitimate expectations, gave rise to a right in domestic law not be prosecuted (see 686D-E), whereas Newman J considered that it gave rise only to a right to have the executive consider whether to accord protection (see 696C-H). [Back] Note 7 It was not suggested in Asfaw that the manner in which the UK has implemented article 31, by creating a statutory defence to a criminal charge, is inconsistent with the Refugee Convention. [Back]
Note 1 See the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention of the European Union on Mutual Assistance in Criminal Matters of 29 May 2000. [Back]
Note 2 See UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1992) at para 28. [Back]
Note 3 Council Directive 2004/83/EC of 29 April 2004. [Back]
Note 4 See UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999) at para 4. [Back]
Note 5 See Adimi at 679B and UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999) at para 4. [Back]
Note 6 Simon Brown LJ appeared to consider that article 31, through the doctrine of legitimate expectations, gave rise to a right in domestic law not be prosecuted (see 686D-E), whereas Newman J considered that it gave rise only to a right to have the executive consider whether to accord protection (see 696C-H). [Back]
Note 7 It was not suggested in Asfaw that the manner in which the UK has implemented article 31, by creating a statutory defence to a criminal charge, is inconsistent with the Refugee Convention. [Back]