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1. Communication dated 15
December 2000, supplemented on 1 February 2001, from Mr. Ronald Everett, a
British citizen, who was extradited from Spain to United Kingdom on 29 June
2001. He claims to be a victim of violations by Spain of article 9,
paragraph 1; article 14, paragraphs 1 and 3 (b); and article 23, paragraph
1, of the Covenant. He is represented by counsel.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author arrived in Spain from the United Kingdom in 1983 and settled
in Marbella with his wife. On 5 July 2000, he was arrested by the police
pursuant to an extradition request from the United Kingdom based on a
robbery alleged to have taken place in London in 1983, and on his alleged
involvement in narcotics trafficking.
2.2 The author applied for provisional release. On 8 July 2000, Magistrates'
Court No. 6 ruled that he should remain in provisional detention. The author
appealed to the same court, arguing that he was a sick man and 70 years of
age, and that he could not flee from justice because he had no identity
documents. The court rejected his appeal in a judgement dated 20 July 2000.
The author appealed to the First Criminal Division of the High Court, but
his application was rejected on 10 October 2000. He also submitted an
application for amparo to the Constitutional Court, but this was rejected on
16 November 2000.
2.3 The author's extradition was granted in a decision of the First Criminal
Division dated 20 February 2001. The author submitted an appeal for
reconsideration, which was rejected on 18 May 2001. The author again applied
to the Constitutional Court for amparo, but his appeal was denied on 22 June
2001.
THE COMPLAINT
3.1 The author alleges a violation of article 9, paragraph 1, of the
Covenant. He asserts that, according to Constitutional Court judgement
128/1995, the only justification for provisional detention is to prevent the
subject of an extradition request from absconding. According to the author,
his detention during the extradition process was not warranted insofar as he
had had no identity documents for more than 14 years - the United Kingdom
having failed to renew his passport and the Spanish authorities having
refused to regularize his residence status - which meant there was no risk
that he would abscond. He further believes account should have been taken of
the fact that his wife, also aged 70, was seriously ill. He states that
neither Magistrates' Court No. 6 nor the First Criminal Division of the High
Court responded to his counsel's contention that it was not possible for him
to flee. The author also maintains that the measures provided for under
article 8, paragraph 3, of the Law on Passive Extradition could have been
applied to prevent him from absconding, but were not.
3.2 In his written submissions of 1 February, 5 March and 17 April 2001, the
author alleges violations of article 14, paragraphs 1 and 3 (b), on the
grounds that, in his view, he has been denied the right to an impartial
tribunal and a properly prepared defence. He claims that he was refused
access to the extradition file; and that he was informed only of the robbery
charges and was told of the charges of conspiracy to import drugs into the
United Kingdom only when he appeared before the court to make a statement,
which meant he was deprived of the opportunity to prepare a defence. The
author also claims a violation of his rights under article 14 inasmuch as
the penalty for the offence was less than one year's imprisonment, which
means that, under article 2, paragraph 1, of the European Convention on
Extradition, and article 2, paragraph 1, of the Law on Passive Extradition,
extradition may not be granted. He further claims that the United Kingdom
requested his extradition solely for "conspiracy to fraudulently evade the
prohibition on the import of drugs".
3.3 In the author's view, his rights under article 14, paragraph 3 (c) were
also violated insofar as the proceedings were unreasonably protracted and
the time limits established in the European Convention on Extradition were
not observed. He points out that, according to article 16, paragraph 4, of
the Convention, "[arrest] ... shall not, in any event, exceed 40 days from
the date of its beginning ", whereas he spent more than seven months in
prison.
3.4 The author alleges a violation of article 14, paragraph 1, on the
grounds that the court allowed the British authorities 30 days to provide
supplementary information, which considerably delayed the extradition
ruling. The author considers that the action of the State party in asking
the United Kingdom to send supplementary information regarding the robbery
amounted to an accusation and was out of order since it was a known fact
that the statute of limitations applied to that offence.
3.5 The author further alleges a violation of article 23, paragraph 1, on
the grounds that his extradition would leave his wife alone and in hospital,
thereby violating his right to a family life.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND THE MERITS
4.1 In its written submissions dated 15 January 2001, 19 June 2001 and 31
July 2003, the State party requests the Committee to find the communication
inadmissible under article 5, paragraph 2, of the Optional Protocol. It
argues that the author had stated in a submission to a Spanish court that
his complaint had been submitted to the European Court of Human Rights.
4.2 The State party also claims that the communication is inadmissible under
article 3 of the Optional Protocol, and argues that the author was deprived
of his liberty in accordance with the procedure established in the Law on
Passive Extradition (No. 4/1985), and with the relevant international
treaties and agreements. It adds that his arrest was carried out under
international detention orders [FN1], for alleged involvement in serious
crimes committed in the United Kingdom, and was ordered on the basis of
properly reasoned judicial decisions. The State party claims that the author
has in fact had every opportunity to exercise all his rights to a defence,
insofar as all his claims have received repeated consideration by the
highest Spanish courts.
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[FN1] The State party appears to refer to a request for provisional arrest
in accordance with relevant international treaties.
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4.3 The State party points out that the author was arrested and deprived of
his liberty not in order to be tried for an offence, but with a view to
extradition, a procedure that, in its view, is beyond the scope of article
14 of the Covenant. It explains that the remedy of reconsideration provided
for by article 14, paragraph 2, of the Law on Passive Extradition need not
meet the requirement for a second hearing before a higher tribunal in
criminal cases, as provided for under article 14, paragraph 5, of the
Covenant, but rather constitutes a remedy with devolutive effect and
additional guarantees, whereby the court can review its decision in
consultation with a greater number of judges.
4.4 As to the author's claim that he should not have been held in
provisional detention since it was physically impossible for him to abscond,
the State party maintains that the decision was taken on the grounds that
there was a risk of escape and on the basis of other considerations that
were duly argued and included in the court judgements. It further states
that, according to the order of 8 July 2000, the fact that the author's
papers were not in order was of no relevance to the decision on deprivation
of liberty; and that account should also be taken of the fact that the
decision was upheld in two subsequent judicial rulings. The State party
further argues that, under article 2 of the Schengen Agreement, the author
could have crossed the borders of European States without any requirement to
produce papers of any kind. It also claims that the extradition papers state
that the author had escaped from British justice using a false passport, a
fact recalled in the Criminal Division judgement of 16 February 2001. The
State party adds that it is not true to say that the author has no identity
papers at all: the records show that his passport was confiscated along with
a power of attorney made out to his lawyers, for which the author had had no
difficulty in producing identification. The State party repeats that the
courts have given a reasoned response to every one of the author's claims.
4.5 The State party asserts that, according to article 8 of the Law on
Passive Extradition, the rules on provisional detention apply once the
detainee has been brought before the court after 24 hours, and provided, as
in this case, that the extradition request is duly submitted during the next
40 days. The State party claims that the time periods calculated by the
author as a basis for his allegations of a violation of his right to be
tried without undue delay are incorrect, since the law establishes only the
time limits for charges to be brought and the maximum time before hearings
are held, but does not rule out procedures such as requests for
supplementary information or others that may be entailed by challenges or
remedies initiated by the author himself. Furthermore, the additional
information was requested by the court, in all impartiality, in order to
establish an important fact relating to the statute of limitations on one of
the offences for which extradition had been requested.
4.6 According to the State party, the author complained to the Supreme Court
on 2 April 2001, accusing the President of the Criminal Division of the High
Court and several other judges of breach of public trust in respect of his
case; and filed another submission on 19 April 2001 challenging four of the
judges comprising the full court of the Criminal Division that was to
consider one of his appeals, on the grounds of "open hostility". The State
party adds that the public prosecutor opposed the challenge, which he
described as "reckless, constituting as it does a clear abuse of process and
of procedural law". The Division ultimately rejected the challenges. The
Criminal Division of the High Court found that the author lacked "any
grounds whatsoever for believing that the delay [was] the result of a
premeditated plan". The State party adds that, according to the Supreme
Court's doctrine and case law, for a challenge under article 219, paragraph
9, to be heard, the complaint against the judge must be lodged before the
proceedings open, and the challenge must be based on allegations of genuine
offences or errors; moreover, the complaint must have been found admissible,
which was not the case. In the event, says the State party, the author
failed to demonstrate such alleged partiality and both the Constitutional
Court and the full court of the Criminal Division of the High Court ruled on
the allegation of a violation of his right to an impartial tribunal, which
was an attempt on the part of the author to delay his extradition.
4.7 The State party reports that, in its decision of 20 February 2001, the
High Court ruled that extradition to the United Kingdom (a) could not be
granted in respect of the robbery offence, by reason of the statute of
limitations; and (b) could be granted in respect of the drug-trafficking
offences. In response to the author's claim that extradition could not be
granted because the offence was punishable by less than one year's
imprisonment, the State party asserts that, under the provisions of the
articles of the Criminal Code cited by the author, conspiracy to traffic in
hashish carries a six-month to one-year prison sentence if the penalty is
reduced by one category, or a three- to six-month sentence if it is reduced
by two categories; however, the offence also involved conspiracy to traffic
in cocaine, which carries a prison sentence of three to nine years. Thus the
author is not correct in claiming that the threshold sentence for the
granting of extradition was not attained.
4.8 In the State party's view, the claim of a violation of article 23,
paragraph 1, is inadmissible because it is not duly substantiated. It argues
that the author told the Criminal Division of the High Court that his wife
had been admitted to hospital in the United Kingdom. It also points out
that, while the deprivation of liberty may affect personal relationships in
some respects, that does not in itself constitute a violation of any
provision of the Covenant. The State party also says that, although the
medical examination the author underwent revealed various age-related health
problems, it also found that "the prognosis is in principle and at the
present time favourable and no intervention or hospitalization is required".
4.9 The State party reminds the Committee that, according to article 7 of
the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, States are required to provide the widest measure
of mutual legal assistance in respect of such offences, and to facilitate
the availability of persons in custody.
AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND THE
MERITS
5.1 In his written submissions of 5 March, 16 April and 10 August 2001, the
author contests the State party's observations: he claims it is not true
that his case has been submitted to another international procedure of
settlement, and he did not flee from the United Kingdom on a false passport,
since he left London in late spring 1983 and entered Gibraltar on his own
passport. In addition, since he is unable to prove his identity he would
never dare to change his place of residence.
5.2 The author claims that the free movement of persons within the European
Community does not mean there is no obligation to keep identity papers in
order. He explains that the power of attorney referred to by the State party
was granted in 1986, when his British passport was still valid.
5.3 The author points out that the State party has omitted to mention that
he had an operation for a pituitary tumour and that he had to be admitted to
the prison infirmary. The State party also failed to mention his wife's
state of health: she suffers from Crohn's disease, which, in conjunction
with her advanced age, means she needs constant care and attention. The
author had been caring for her, and she had to go into hospital when he
stopped doing so on his arrest.
5.4 The author reiterates that, according to article 2, paragraph 1, of the
European Convention on Extradition and article 2, paragraph 1, of the Law on
Passive Extradition, his extradition should not be granted. He claims that
he was first charged with "conspiracy to fraudulently evade the prohibition
on the import of drugs", and since the penalty for that offence is less than
one year's imprisonment, the original charge was changed to a charge of
having imported massive quantities of hashish from Spain to the United
Kingdom on several occasions. In this regard, the author claims that he was
held for three weeks beyond the permitted date, and that this was
undoubtedly because the State party was trying to ensure that the case was
taken by a judge who was prepared to comply with its wishes.
5.5 The author repeats his claim that, in accordance with articles 368, 373
and 701, paragraph 2, of the Spanish Criminal Code, the maximum penalty for
conspiracy to traffic in hashish is a prison sentence of six months to one
year minus a day, and that extradition should therefore never have been
granted. He adds that, as stated in the report on which the extradition
request was based, he had withdrawn from the plan to import cocaine.
5.6 The author repeats that he did not have an impartial tribunal, and that
was why he challenged the judges trying his case. He claims that, under
article 219.4 of the Judiciary (Organization) Act, judges against whom
"complaints or challenges have been brought by any of the parties" are
required to withdraw, but that his challenge was not allowed on the grounds
that the complaint should first have been found admissible by the court
hearing it. He also points out that the judges he challenged were members of
the full court trying the appeal, and that therefore they could not give it
an impartial hearing.
5.7 The author states that, according to Constitutional Court judgements
11/1983, 131/1994 and 141/1998, extradition proceedings are true trials.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 The State party maintains that the author's communication should be
found inadmissible under article 5, paragraph 2 (a), of the Optional
Protocol, since Mr. Everett has stated in a submission to a Spanish court
that his complaint had been submitted to the European Court of Human Rights.
The author denies this. The Committee has noted that in June 1990 the
European Commission of Human Rights found the complaint filed by the author
against the United Kingdom to be inadmissible. It has therefore ascertained
that the same matter has not been submitted to another international
procedure of investigation or settlement. Accordingly, there is no
impediment under article 5, paragraph 2 (a), of the Optional Protocol to
consideration of the complaint.
6.3 The author alleges a violation of his right under article 9, paragraph
1, on the grounds that his provisional detention during the extradition
proceedings was unwarranted, since there was no risk that he would abscond.
In that regard, the State party maintains that the complaint should be found
inadmissible under article 3 of the Optional Protocol, since the author was
deprived of his liberty in accordance with the procedure established in the
Law on Passive Extradition (No. 4/1985), and with the relevant international
treaties and agreements. The State party adds that its decision was based on
international detention orders [FN2] arising from the author's alleged
involvement in serious offences on the territory of the requesting State. It
also maintains that the detention was the subject of properly reasoned
judicial decisions in which it had been determined that there was a risk of
flight. The Committee notes that the measures provided for under article 8,
paragraph 3, of the Law on Passive Extradition may be applied at the State
party's discretion, and also that, as the State party points out, the author
made use of the domestic remedies available to him, in all of which his
complaint received consideration. The Committee finds that this part of the
communication is not duly substantiated and is therefore inadmissible under
article 2 of the Optional Protocol.
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[FN2] The State party appears to refer to a request for provisional arrest
in accordance with relevant international treaties.
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6.4 Recalling its earlier case law the Committee considers that although the
Covenant does not require that extradition procedures be judicial in nature,
extradition as such does not fall outside the protection of the Covenant. On
the contrary, several provisions, including articles 6,7,9 and 13, are
necessarily applicable in relation to extradition. Particularly, in cases
where, as in the current one, the judiciary is involved in deciding about
extradition, it must respect the principles of impartiality, fairness and
equality, as enshrined in article 14, paragraph 1, and also reflected in
article 13 of the Covenant. Nevertheless, the Committee considers that even
when decided by a court the consideration of an extradition request does not
amount to the determination of a criminal charge in the meaning of article
14. Consequently, those of the author's claims that relate to specific
provisions in paragraphs 2 and 3 of article 14, are incompatible ratione
materiae with the provisions in question and hence inadmissible pursuant to
article 3 of the Optional Protocol. As to the remaining claim presented
under article 14, namely that there was a violation of impartiality, the
Committee considers that the author has not substantiated for purposes of
admissibility, this part of his communication which is accordingly
inadmissible pursuant to article 2 of the Optional Protocol irrespective of
whether it is addressed under article 13 or 14 of the Covenant.
6.5 As to the complaint under article 23, paragraph 1, of the Covenant, the
Committee notes the State party's contention that it is inadmissible on the
grounds that it is not duly substantiated; and that, as it rightly points
out, while deprivation of liberty may affect personal relationships to a
certain extent, that does not in itself entail a violation of the Covenant.
The Committee finds that this part of the communication is not sufficiently
substantiated for the purposes of admissibility under article 2 of the
Optional Protocol.
6.6 The Committee notes that the author alleges that the United Kingdom
requested his extradition on the basis of an alleged conspiracy to
fraudulently evade the prohibition on the import of drugs and that the
initial charge considered by the State party was that of having imported
quantities of hashish, for which the prison sentence was not more than one
year, so that it was not appropriate to grant extradition. In the
Committee's opinion, the correctness of extradition decided to United
Kingdom, that could be contested in the light of article 2 paragraph 1 of
the European Convention on Extradition and the Law on Passive Extradition,
is beyond the scope of any particular provision of the Covenant. For this
reason, the Committee considers that this part of the communication is
inadmissible "ratione materiae".
7. Consequently, the Committee decides:
a) That the communication is inadmissible under articles 2 and 3 of the
Optional Protocol
b) To communicate this decision to the author and the State party.
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[Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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