Spanish Judicial Authority v Arranz [2015] EWHC 2305

On 31 July 2015, the High Court upheld the appeal of convicted terrorist, Antonio Arranz, who faced extradition from the United Kingdom to Spain, finding that the extradition bar under section 12A of the Extradition Act 2003 (EA 2003) (of no final decision to charge or try) had been met. The judgment is here.

Background

In 1986, Mr Arranz, with others, placed an ‘explosive device’ in central Madrid, as part of a terrorist cell which “sought to further the aims” of the Basque separatist group, ETA. The bomb exploded, killing eleven members of the civil guard, and injured 60 others.

Mr Arranz was convicted in 1989 of 91 offences, including terrorism, murder and attempted murder. He was sentenced to 2,232 years’ imprisonment; this sentence was capped at a 30 year term, without remission (i.e. a possible reduction in his sentence), by the Audiencia Nacional in 2000.

Parot Doctrine and Release in Spain

In 2006, in a case involving another ETA defendant, the Spanish Supreme Court, amended the law so that remission would be applied to each sentence separately: the so-called ‘Parot Doctrine’. The result, in Mr Arranz’ case, was that remission was applied to the 2,232 year term of imprisonment, not the capped 30 year term.

On 1 February 2011, ostensibly applying the Parot Doctrine to Mr Arranz’ case, the Third Section of Audiencia Nacional held that Mr Arranz was to be released in 2017, rather than in 2011. However, Mr Arranz was in fact released from prison on 13 April 2011; it appears that effect was given to the earlier decision, and remission applied to the 30 year term.

On 19 April 2011, the Audiencia Nacional reversed the ruling that permitted Mr Arranz’ release, and issued a Spanish domestic warrant for his arrest. A ‘conviction’ European Arrest Warrant (EAW 1) for his arrest was issued on 26 April 2011, to enforce the Spanish arrest warrant. Mr Arranz was arrested on 29 June 2012 in the UK.

EAW1 and Case Progress in the UK

On 1 February 2013, the District Judge at Westminster Magistrates’ Court ordered the extradition of Mr Arranz under EAW 1. The decision was then upheld by the High Court in a judgment dated 14 June 2013.

The High Court upheld the decision on the basis of an express undertaking by the Spanish Judicial Authority that it would abide by the pending appeal in the decision in Del Rio Prada v Spain (2012 App 42750/09, July 2012).

In Prada, a judgment that was issued shortly after Mr Arranz’ arrest in the UK, it was held that a retroactive application of the Parot Doctrine would breach Article 7 of the European Convention on Human Rights (ECHR).

The Grand Chamber of the European Court of Human Rights did, ultimately, uphold the decision in Prada, in a judgment dated 21 October 2013. Accordingly, Mr Arranz immediately applied for his extradition appeal to be reopened.

On 22 October 2013, the Spanish Judicial Authority requested time to consider its position. Mr Arranz was granted bail, though he was not released until 27 November 2013.

The Spanish Judicial Authority refused to withdraw EAW 1. The High Court allowed Mr Arranz’ appeal (date unspecified), ordered his discharge under s. 27 EA 2003, and quashed the order for his removal. EAW 1 was finally removed by Spanish authorities in the course of the latest appeal before the High Court.

EAW 2 and EAW 3

On 10 January 2014, the Spanish Judicial Authority issued a second EAW (EAW 2) in respect of Mr Arranz. This was an accusation warrant, alleging two offences: membership of a terrorist organisation and forgery of official documents. On 17 October 2014, Westminster Magistrates’ Court held that the EAW 2 was invalid under s. 2 EA 2003, and Mr Arranz was discharged.

On 17 November 2014, the Spanish Judicial Authority issued a replacement accusation EAW (EAW 3) for Mr Arranz’ arrest for the same two offences, curing the defect identified in EAW 2. Mr Arranz was rearrested in the UK, on 11 December 2014, and released on bail.

On 14 April 2015, the Senior District Judge ordered Mr Arranz’ extradition in respect of the first offence (membership of a terrorist organisation), but discharged him from extradition in respect of the forgery offence. Mr Arranz appealed. Six issues were pursued on appeal:

1. “judicial engineering” by the Spanish Judicial Authority, to secure Mr Arranz’ extradition under EAW 1, and in relation to the proceedings in EAW 2 and 3;
2. abuse of process, on the basis that the conduct set out in EAW 3 did not give rise to the offence alleged;
3. specialty, in respect of the extant proceedings which formed the basis of EAW 3;
4. the fact that EAW 3 is still at the investigation stage would breach Articles 6 and 5 ECHR;
5. his extradition was barred under 12A EA 2003, on the basis that his absence from Spain was not the sole reason why a final decision to charge or to try him had not been taken; and
6. Article 31 of the Refugee Convention 1951.

High Court, 29 July 2015

The Lord Chief Justice and Mr Justice Cranston held the following, dismissing grounds 1–4, and upholding ground 5:

1. It cannot be concluded that the Senior District Judge had been wrong in the conclusion he reached. First, the evidence that the judicial authority had responded to pressure, by making decisions that it knew had not been in accordance with the law, had not been compelling. Secondly, EAW 3 had not been manufactured by the judicial authority. Thirdly, there was no risk that the judicial authority would treat the appellant other than properly and fairly, and would not make a decision based on political pressure.
2. It could not be said that the law or facts were sufficiently clear for the court to conclude that the conduct was not a fair, proper or accurate description of the matters that constituted the offence of membership of a terrorist organization. Murua; Zakrzewski applied.
3. The Spanish Judicial Authority has now taken action to bring proceedings in respect of the original conviction to an end. Specialty no longer formed a bar to extradition.
4. With respect to the EAW 3, the case was still at the investigation stage before the Audiencia Nacional. This phase is still not yet complete. However, Mr Arranz should be able to put his case before the decision to prosecute is made; if so, there can be no breach of Articles 6 or 5 ECHR.
5. Where evidence was adduced to show that the means of examining the defendant were possible, through use of European Convention on Mutual Assistance in Criminal Matters, or otherwise, it is for the requesting European judicial authority to prove, beyond reasonable doubt, that s. 12A (1) (b) (iii) EA 2003 has been met. This is the exception to s. 12A EA 2003, which allows extradition to proceed if it appears that there are reasonable grounds for believing that the person’s absence from a category 1 territory is the sole reason for the state’s failure to make a final decision to charge or try the defendant. No evidence was adduced by the Spanish Judicial Authority on why a decision to try had not been taken. Therefore, it cannot be shown that the sole reason for the decision not to prosecute was due to Mr Arranz’ absence from Spain. Kandola applied. Ground upheld.
6. Ground not considered, in view of the decision on ground 5.

Appeal allowed. Mr Arranz discharged.