Arranz v The 5th Section of the National High Court of Madrid, Spain

Section 12A of the Extradition Act 2003 asks whether the requesting territory has made decisions to charge and try, and whether the requested person’s absence is the sole reason for any failure. It does not require the requesting authority to consider mutual legal assistance. A later request is not abusive merely because earlier extradition proceedings failed for want of evidence, particularly where the requesting state has taken further steps and acted without bad faith.

Article 31 of the Refugee Convention provides local protection against penalties imposed by the United Kingdom for specified conduct connected with illegal entry or presence. It does not confer immunity from extradition or prosecution in the country from which the person fled. A person seeking to rely on Convention rights to resist extradition must pursue the applicable asylum protection.

Spain made a fourth attempt to extradite Antonio Troitiño Arranz under a European arrest warrant so that he could be prosecuted for membership of a terrorist organisation. The Senior District Judge ordered extradition on 14 June 2016.

Earlier proceedings had resulted in discharge because Spain had not proved, under section 12A of the Extradition Act 2003, that Mr Troitiño’s absence was the sole reason why a decision to try had not been made. Spain subsequently sought mutual legal assistance, including a video interview, but the request was refused under UK law.

The appeal concerned section 12A, abuse of process, and whether article 31 of the Refugee Convention created an immunity from extradition.

1. Section 12A. The appeal was dismissed on this ground. The court followed the analysis in Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862 (Admin), which held that the use or possible use of mutual legal assistance is not part of the statutory questions under section 12A. The earlier approach in Kandola v Generalstaatsanwaltschaft Frankfurt Germany [2015] EWHC 619 (Admin) was no longer good law to that extent. The Spanish authority’s statement that the investigatory phase could not be completed and a decision to try could not be taken unless Mr Troitiño was physically present was accepted. Even if mutual legal assistance remained relevant exceptionally, Spain had properly considered it and there was no basis for requiring further steps which would not permit a decision to try in his absence.
2. Abuse of process. The Henderson principle requires a broad, merits-based assessment of whether later proceedings misuse the court’s process, taking account of public and private interests and whether the later proceeding amounts to unjust harassment. Spain’s failure to adduce further evidence in the earlier appeal was a tactical error, not bad faith. It had since attempted to progress the proceedings by mutual legal assistance. Requiring a further examination by a British judge would serve no legitimate interest, particularly because mutual legal assistance was legally irrelevant to section 12A and would not enable Spain to decide to try Mr Troitiño in his absence.
3. Article 31. Article 31 was interpreted broadly in accordance with its humanitarian purpose. The court accepted that Mr Troitiño could have been a refugee during the relevant period and that the application of the Parot doctrine gave rise to a fear of persecution. However, article 31 protects against penalties imposed by the contracting state in which the refugee is present. It does not apply to a prosecution in the foreign state from which the person fled and does not create personal immunity from extradition. Mr Troitiño also failed the requirement to present himself to the UK authorities without delay: on his own evidence, he entered the UK intending to remain hidden rather than claim asylum.
4. An unincorporated treaty cannot, without more, alter domestic law or create an enforceable legitimate expectation. Section 31 of the Immigration and Asylum Act 1999 implemented part of article 31 as a domestic defence, but the alleged terrorism offence was outside its scope. Article 31 therefore supplied no ground for resisting extradition. The appeal was dismissed.

• High Court (Administrative Court): Spanish Judicial Authority v Antonio Troitiño Arranz (No 3) [2015] EWHC 2305 (Admin) allowed an earlier appeal and discharged Mr Troitiño because Spain had not discharged the section 12A burden.
• Senior District Judge: on 14 June 2016 ordered extradition under the fourth European arrest warrant.
• High Court (Administrative Court): dismissed the present appeal and upheld the extradition order.