Sanchez v The Second Section of the National High Court of Madrid, Spain

Extradition is incompatible with Article 6 only where there is a real risk of a flagrant denial of justice. This is a stringent threshold, requiring more than procedural irregularity or inadequate safeguards. The use at trial of evidence obtained by torture would meet the threshold because it destroys the essence and integrity of a fair trial. The person resisting extradition must provide evidence capable of establishing substantial grounds for believing that the real risk exists. In cases concerning evidence allegedly obtained during incommunicado detention, the relevant question is whether there is a substantial body of evidence showing that the requesting state’s criminal courts routinely admit such evidence despite indications of torture. General evidence concerning detention conditions or ineffective investigation of complaints may not address that question.

The appellant challenged an order for his extradition to Spain under the Extradition Act 2003. The extradition was sought so that he could face charges of membership of an armed organisation and possession of explosives. The prosecution was expected to rely partly on statements made by the appellant’s brother after his arrest and incommunicado detention in Spain.

The appellant alleged that his brother had been tortured and that the resulting statements and information should be treated as inadmissible. The district judge ordered extradition on a replacement European Arrest Warrant. The central issue was whether extradition would expose the appellant to a real risk of a flagrant denial of justice contrary to Article 6 of the Convention.

1. Appeal dismissed. The statutory question under section 21(1) of the Extradition Act 2003 was whether extradition would be incompatible with the appellant’s Convention rights.
2. Under Soering v The United Kingdom (1989) 11 EHRR 489 and Othman v The United Kingdom [2012] ECHR 56, extradition would breach Article 6 only if there were a real risk of a flagrant denial of justice. The test was stringent. It required a breach so fundamental as to nullify or destroy the essence of the right to a fair trial.
3. The admission of evidence obtained by torture would constitute a flagrant denial of justice. Torture evidence is intrinsically unreliable and its admission undermines the rule of law and the integrity of the trial process.
4. The appellant had to adduce evidence capable of establishing substantial grounds for believing that the real risk existed. The relevant inquiry was not whether incommunicado detention or ill-treatment occurred, or whether complaints were always investigated effectively. It was whether there was substantial evidence that Spanish criminal courts routinely failed to investigate allegations properly, failed to uphold justified complaints, or admitted incriminating statements despite evidence that they had been obtained by torture.
5. The reports and Strasbourg cases relied on by the appellant did not establish that proposition. They principally concerned detention conditions or investigations by investigating judges. The judgment in the appellant’s brother’s case showed that the trial court considered corroboration, medical evidence and the alleged ill-treatment, rather than treating the absence of visible injuries as conclusive.
6. The reasoning in Arronategui v First, Second, Third and Fourth Sections of the National High Court of Madrid, Spain [2012] EWHC 1170 (Admin) was applicable. There was no evidence, still less anything approaching the international consensus contemplated in Krolik v Several Judicial Authorities in Poland [2012] EWHC 2537 (Admin), that the Spanish criminal courts had the alleged institutional reluctance. The appeal was therefore dismissed. There was no order as to costs, subject to detailed assessment of the appellant’s publicly funded costs.

• Westminster Magistrates’ Court: The district judge ordered the appellant’s extradition to Spain on the replacement European Arrest Warrant.
• High Court (Administrative Court): The appeal against that order was dismissed.