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 judgment were specified. It was therefore not possible for the appellant to know from the terms of the warrant when or in what terms the sentence of 30 years had been passed.
- In considering whether a warrant properly informs a requested person of the basis on which his return was sought, whether he can oppose the request and whether he can raise any bars to extradition, regard must be had to the warrant as a whole, bearing in mind the mutual trust and confidence which the courts of the executing state must place in the courts of the requesting state: see Pilecki v Circuit Court of Legnica Poland [2008] UKHL 7, [2008] 1 WLR 325 at paragraphs 28-30; Kane v Her Majesty's Advocate [2010] HCJAC 39; Dhar v Netherlands Public Prosecutor [2012] EWHC 697 (Admin); R (Echimov) v Court of Badabag, Romania [2011] EWHC 864 (Admin). Ordinarily in a conviction EAW the particulars of the judgment should include the time and date of the conviction; see Sandi v The Craiova Court, Romania [2009] EWHC 3079 (Admin).
- In our judgment, applying these principles, read as a whole the warrant set out all that the appellant needed to know to understand the basis on which his return was sought, whether he could oppose the request and whether he could raise any bars to extradition. It was clear first that he had been convicted of the murders and terrorist offences; second that the original sentences had totalled 2,232 years; third that these had been limited to a total of 30 years of which there were 2,096 days to be served. The sentence was to be found in the judgment of 7 November 1989 and the final judgment of 5/2000.
- It seems to us that that was sufficient for him to know and no more needed to be stated.
Issue 2: Was there an abuse of process?
- It was contended by the appellant on the basis of the decision of the Supreme Court in Zakrzewski v Regional Court in Lodz, Poland [2013] 1 WLR 324 that there was an abuse of process as the sentence of 30 years was the combination not only of the offences specified in the EAW, but other non specified offences. Those additional offences, convictions and sentences should have been specified. Bad faith was not alleged; it is not necessary to prove bad faith to establish an abuse of process: see paragraph 13 of Zakrzewski.
- An examination of the decision of the Audiencia Nacional of 18 May 2000 showed in fact that, in addition to the sentences passed on 7 November 1989 for the proceedings in 31/86 before Central Court 5 set out in detail in the EAW, there had been sentences in trials 37/86 and 12/91 of Central Court 1, trials 27/86 and 19/87 of Central Court 2, trials 23/87 and 63/87 of Central Court 4 and other trials in addition to 31/86 before Central Court 5.
- In the additional information supplied by the Vacation Court of the Audiencia Nacional on 9 August 2012 the court confirmed that the sentences referred to in the preceding paragraph had been combined with the sentences set out in the EAW. The factual contentions advanced on behalf of the appellant are therefore not disputed.
- However, for the reasons explained at paragraphs 15 and 16 of the judgment in Zakrzewski, what matters is whether the information omitted is material to the operation of the statutory scheme. In our judgment the omitted information was not material. The original sentences in proceedings 31/86 totalled 2,232 years; the maximum period of imprisonment cumulating in all the proceedings, including the other proceedings that were before the Audiencia Nacional on 18 May 2000 (as set out at paragraph 23 above), was 30 years. If the Parot Doctrine applies, the period of remission applies to each of the sentences; there is more than sufficient time in the sentences totalling 2,232 years in proceedings 31/86 for the additional days to be served by reference solely to those sentences. Information about the other sentences was immaterial to the question of whether the appellant could be extradited under the statutory scheme.
- At our request an enquiry was made of the Audiencia Nacional as to what would happen in respect of the sentences for the offences not listed in the EAW. In a statement made by the Audiencia Nacional on 16 April 2013, it was made clear that once the 30 year sentence for the offences listed in the EAW was served, the appellant would not be liable to imprisonment for the other offences.
Issue 3: Would the extradition of the appellant be in breach of his Convention Rights under Articles 7 and 5?
(a) The factual position
- As we have set out at paragraph 14, the Third Section of the Strasbourg Court has held that the application of the Parot Doctrine to Miss Del Rio Prada's sentence would be a violation of Article 7(1) which provides:
"... No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed..."
The case of the appellant is indistinguishable from that of Miss Del Rio Prada.
- In the additional information supplied by the Vacation Court of the Audiencia Nacional on 9 August 2012, that Court made clear that it would scrupulously comply with judgments of the Strasbourg court. However, until the Grand Chamber had issued its ruling, the Audiencia Nacional had to apply the Parot Doctrine as developed by the Spanish Supreme Court. Once the Grand Chamber had given its decision, the court would comply with the doctrine as established by the Strasbourg court.
(b) The contention of the appellant
- It was contended on behalf of the appellant that there was a clear risk that the surrender of the appellant would result in him having to serve 2,096 days solely as a result of the decision of the Spanish courts to change the law as applicable at the time of his sentence with retrospective effect, which the Spanish courts had held did not violate Article 7.
- The courts of the United Kingdom should follow the decision of the Third Section of the Strasbourg court under s.2 of the Human Rights Act 1998 and hold that the imposition of a further 2,096 days on the appellant would violate Article 7; we were referred to the observations of Lord Phillips and Lord Brown in Horncastle [2010] 2 AC 373 at paragraphs 11 and 117 in support of the submission that there was no applicable reason for us not to follow the decision of the Third Section.
(c) Should we adjourn our decision on this issue?
- In our judgment, in circumstances where the Grand Chamber is considering whether the decision of the Third Section should be upheld in respect of a provision of Spanish law, it cannot be right for this court to express a view on the issue, let alone follow the decision of the Third Section.
- As it is common ground that the appellant will not be entitled to bail in Spain pending the decision of the Grand Chamber and as it may take some time for the decision to be given, if the appellant is returned to Spain, he may serve a significant proportion of the time remaining under the sentence before a decision is known. Should we therefore adjourn the decision on this issue and consider a grant of bail, pending the decision of the Grand Chamber? To determine that question, it is necessary for us to consider whether returning him now would be a breach of Article 7.
(d) The test in respect of Article 7
- To determine whether his return now would be a breach of Article 7, we must consider what the appellant has to establish in respect of Article 7 if there is to be a bar to extradition. There are two alternatives: must he establish either (1) that there were strong grounds for believing that there was a real risk that the appellant would be subject to a retroactive penalty prohibited by Article 7 or (2) that there would be a real risk of a flagrant breach of his rights under Article 7 by ordering his return.
- It is well established that in the case of Articles 5 and 6, a person seeking to establish a bar to extradition must show that there would be a real risk of a flagrant violation of that person's Convention rights. In the case of Article 3 it is established that the person must establish strong grounds for believing that he faces the real risk of being subjected to torture or inhuman or degrading treatment. In R(Ullah) v Special Adjudicator [2004] AC 323, Lord Bingham stated at paragraph 24:
"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment:...
Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state:... Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes."
- Although Lord Bingham did not consider the position under Article 7, Lord Steyn did. He began at paragraph 40:
"It may now be useful if I embarked on my own brief tour d'horizon on the question whether in principle articles other than article 3 could become engaged in immigration decisions on the expulsion of aliens......"
- After referring to Articles 2,3,4 and 5 and before continuing to consider the remaining Articles, he said of Article 7 at paragraph 45:
"This is among the first tier of core obligations under the ECtHR. It is absolute and non derogable. It is not likely to arise often in the context of immigration decisions to expel aliens. It could, however, arise. Bearing in mind the principles laid down by the ECtHR in respect of extradition and expulsion involving a real risk of a flagrant violation of fair trial rights, the same must be the case in respect of this obligation."
- Lord Carswell expressly stated at paragraph 67 that he agreed with Lord Steyn in respect of Articles 2,4,5,7 and 8. Lord Bingham and Baroness Hale agreed generally.
- Although it was submitted on the appellant's behalf that what Lord Steyn said was not necessary for the decision, it is clear that Lord Steyn was laying down the approach the courts should take in cases where Articles of the Convention, including Article 7 were in issue. It would not be consistent with the principles on which this court should operate for us to depart from the guidance expressly given in relation to Article 7. Although we see some force in the argument advanced on behalf of the appellant in relation to Article 7, it must be for the Supreme Court to determine whether it should reconsider the guidance given by Lord Steyn in a case where Article 7 is actually in issue.
- An argument was also advanced that the flagrant breach test may no longer be apposite in relation to extradition under the Framework Decision on the basis of the opinion of Advocate General Sharpston given in the Luxembourg court in Curtea del Apel Constanta (Romania) v Radu (C-396/11).
- In her opinion the Advocate General made clear that judicial authorities were bound, when deciding whether to surrender a requested person, to have regard to the fundamental rights set out in the European Convention on Human Rights and the Charter of the Fundamental Rights of the European Union. After reviewing the case law of the Strasbourg Court, she took issue with the case law in relation to the test to be applied in two respects (see paragraphs 82-86).
"First I do not feel that I can recommend to this court that it accept the test that the breach in question should be "flagrant". Such a concept appears to me to be too nebulous to be interpreted consistently throughout the Union... However such a test - assuming it can be clearly understood - seems to me unduly stringent..."
- The Luxembourg court did not deal with this issue in its judgment.
- This opinion does not alter the view we have expressed. First, as is clear from the decision of the Supreme Court in Assange v Sweden [2012] 2 AC 471 at paragraphs 198-217 the Framework Decision is not within the scope of s.2 and 3 of the European Communities Act 1972; the judgments of the Luxembourg court are not therefore directly applicable and binding on UK courts. The opinion cannot therefore entitle us to disregard the law as settled in Ullah. Second, s.21 refers to Convention rights within the meaning of the Human Rights Act 1998; a court in the United Kingdom must therefore consider the authorities under the Convention, not the Charter. Third, although it is clear that the Advocate General did not approve of the flagrant breach test, she still considered that a very high test was required.
(e) Would there be a flagrant breach of the appellant's rights under Article 7
- We therefore proceed on the basis that it is for the appellant to show that there would be a real risk of a flagrant breach of Article 7.
- The courts of the UK must accord, under the Framework Decision, respect for the decision of the Spanish courts that there was no breach of Article 7 by reason of the application of the Parot doctrine to the appellant's sentence. The Strasbourg court has taken a different view. The courts of the UK must in the circumstances accept that there is a real dispute about the application of Article 7.
- On the evidence before us, the Spanish courts have made clear that they will apply the decision of the Grand Chamber. There is no reason to suggest that the courts would not do so. Thus, as the Spanish courts will abide by the decision of the Grand Chamber, it is difficult to see how it can be said that there would be a risk of a flagrant breach of Article 7 if the appellant were now to be returned to Spain to await that decision. If the Grand Chamber upholds the decision of the Third Section, the Spanish courts will release him; if the Grand Chamber reverses the decision and holds there was no breach of Article 7, the appellant would have no case on Article 7. Spanish law, as we have set out, makes no provision for bail. It is difficult to see how it can be suggested that in circumstances where there is a real issue over the operation of Article 7, keeping a person in custody pending the determination of that issue could amount to the risk of a flagrant violation of Article 7. As we have reached this conclusion, it would not be right to adjourn our decision on this issue, for to do so would in effect be acting contrary to the respect which we should accord the decisions of the Spanish courts.
- After the hearing, our attention was drawn to a statement made by the Spanish Minister of the Interior to the effect that, even if the decision of the Grand Chamber went against Spain, there was room for "legal engineering". Authority was sought to obtain translations of press reports in relation to his remarks.
- We do not consider that any such remarks can be of any relevance. The Audiencia Nacional has made clear that it will abide by the decision of the Grand Chamber. In Spain, it is the judiciary who determine whether a person is detained in custody or not. As we have received the clearest statement from the court that it will abide by the decision of the Grand Chamber, any statement by the Minister can make no difference. It is therefore not appropriate to inquire into his remarks any further.
Conclusion
- We therefore dismiss the appeal.
