QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JACK
| MOUTEZ ALMALLAH DABAS
|- and -
|THE HIGH COURT OF JUSTICE MADRID SPAIN
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John Hardy (instructed by the Crown Prosecution Service) for the Respondent
Crown Copyright ©
Lord Justice Latham :
"The investigations, in relation to Moutaz Almallah Dabas (already investigated in Spain because its supposed relations with a presumed cell of Al Qaeda in Spain) have determined that until year 2004 included, he allegedly would carry out the following activities:
He enabled the provision of care for radical Islamists in Spain, in order to transfer them later abroad, lodging them, among other places in a house placed in Calle Virgen del Coro No 11 in Madrid, being the tenant.
There were carried out meetings of indoctrinating and setting of Jihadist Platform, being present, beside himself Moutaz Al Mallah – who had a relevant an manager position – among others Sarhane Ben Abdelmajid Fakhet – committed suicide in Leganes on April 3 2004 – Mustafa Maymouni – convicted in Morocco because his connection with the attacks in Casablanca – and other alleged involved in the attacks of March 11th 2004 as Basel Ghalyoun.
Moutaz Alamallah Dabas kept in this house cellar texts referred to OSAMA BIN LADAN to be distributed; and he stated his affinity to the Jihadist thesis of OSAMA BIN LADAN and ABU QUTADA.
He used strict safety measures in his phone calls (since he supposed that the police could control them) – telephone boxes and booths, he changed his cell telephone cards periodically, he used deviation systems of phone calls.
It does not stated that he had made any work activity to justify his incomes, even living in residences of accused people of Islamist terrorist activity (nevertheless in the beginning of 2001, he denounced the robbery of a 1,400,000 pesetas that he had in the address where he lived – supposedly proceedings from the money collection to which he was dedicated, to favour the activities of the radical Jihadists Islamists)
The telephone used by the Moutaz Almallah were found in diaries/telephone memories of other alleged involved in the March 11 2004 attacks, with whom he was already related in the year 2002 (so that Sarhane Ben Abdelmajid Fakhet, Basel Ghalyoun, Fouad el Morabit Amghar, Rabei Osman El Sayed Ahmed). Basel Ghalyoun, at the moment of his arrest in March 2004 used a telephone card whose holder was Moutaz Almallah Dabas; Rabi Osman El Sayed when he was arrested in Italy in Juin of 2004, he had in his diary and in his phone card the Moutaz Almallah Dabas phone number.
Moutaz Almallah Dabas left Spain, with destination the United Kingdom of Great Britain in October 2002, but he came back to Spain repeated times along year 2003; in Spain he regularly met with Sarhane Ben Abdelmajid Fakhet (one of the suicided people in Leganes on April 3 2004), celebrating meetings in the house of Calle Virgen del Cor (where other alleged involved in March 11 2004, and where other of the suicided people in Leganes after the March 11th 2004 attacks to be sheltered and to spend the night from March 11 to 12 2004.
The terrorist attacks occurred on March 11th 2004 in Madrid (explosions occurred in four trains), committed by presumed Islamist terrorists, produced 191 deaths, more than a thousand injured and a huge material damages.
On April 3 2004 in Calle Carmen Martin Galte No 40 in Leganes (Madrid) committed suicide seven people alleged Islamist terrorists who participating in the March 11 2004, among them Sarhane BEN ABDELMAJID FAKHET.
Nature and legal classification of the offence(s) and the applicable statuary provision/code; Penal type would be collaboration with Islamist terrorist organisation foreseen in Article 576 of Penal Code. "
"MOUTAZ ALMALLAH DABAS, between a date unknown before the year 2000 and the 12th day of March 2004, conspired together and with Sarhane Ben Abdulmajid Fakhet, Basel Ghalyoun and other persons to arrange and/or manage and/or assist in the arrangement or management of meetings which they knew supported and furthered the activities of a proscribed organisation or proscribed organisations."
The First Ground.
"The statement is one that –
(a) the person in respect of whom the Part 1 warrant is issued is accused in the Category 1 Territory of the commission of an offence specified in the warrant, and,
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence."
"This Warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
He submits however that this is in itself insufficient to make it clear that the two requirements of sub-section (3) have been met. In the last paragraph of the citation from the warrant which I have set out in paragraph 2 above , the nature of the offence is described in what might be called the conditional tense, that is "Penal Type would be (my emphasis) collaboration with a terrorist organisation foreseen in Article 576 of Penal Code" Further, the opening paragraph of that citation, he submits, is more consistent with the purpose being the continuation of investigations rather than the process of prosecution. He submits that the appellant is entitled to rely on the reasoned order of Judge Galvez in addition to the warrant itself, in order to determine whether the matter is clear. By section 202 of the 2003 Act, any document issued in a Category 1 territory may be received in evidence in proceedings under the Act if it is duly authenticated. There is no doubt that the reasoned order was duly authenticated. And in the narrative part of that document, the following passage appears:
"Because of all the above and in order to clarify the link which seems to be proven between the AL MALLAH brothers with all the cast that has been identified surrounding the 11-M attack, both the principle perpetrators of the attacks as with the necessary probable collaborators in those acts, as well as the almost certain link of both brothers in the whole process of attracting, conversion, recruiting, and preparation of the Madrid attacks, IT IS REQUESTED since it is in the maximum interest for the definite clarification of the attacks of 11 March 2004 and as a precaution against other similar attacks, that an arrest warrant be issued for the brothers MOHANNAD AND MOUTAZ AL MALLAH DABAS in the case of Moutaz this involves an International arrest warrant for extradition purposes since he is currently residing in the United Kingdom."
"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their inquiries". Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and the civil law jurisdictions it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning of the Act of 1989. It is however possible to state in outline the approach to be adopted. The starting point is that "accused" in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an "accused" person. Next there is the reality that one is concerned with the contextual meaning of "accused" in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the text permits it in order to facilitate extradition…."
"It is sufficient for present purposes to say that it is open to the court to draw inferences from the material available to it to determine whether the requirements of the statute have been satisfied. But those against whom the system of extradition is invoked are entitled to protection against its use in circumstances which have not been provided for by Parliament. So I think that Crane J was right to indicate that, if there is a gap in the information it ought not to be filled by mere guesswork."
"that there are sufficient reasons in the case to believe that the person against whom the imprisonment order is to be issued is in fact guilty of the crime."
Applying that to the facts of the case he stated:
"there appear in the case sufficient reasons to believe that the person against whom the national and international arrest warrant is the perpetrator of the crime."
The Third Ground
"The conduct constitutes an extradition offence in relation to the category 1 Territory if these conditions are satisfied
(a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;
(b) a certificate issued by an appropriate authority of the category 1 Territory shows that the conduct falls within the European framework list;
(c) the certificate shows that the conduct is punishable under the law of the category 1 Territory with imprisonment or another form of detention for a term of three years or a greater punishment."
"particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the Category 1 territory under which the conduct is alleged to constitute an offence…"
"Even if the warrant could in some way be treated as a distinct certificate under section 64, (which for my part I doubt), the proposition cannot assist Mr Hardy if in truth there is no conduct specified that is capable of amounting to the extradition offence relied on."
The Fourth Ground
"The conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom"
"Although the allegations of conspiracy to torture in charge 2 and of torture and conspiracy to torture in charge 4 must now be restricted to the period from 29th September 1988 to 1 January 1990, the fact that these allegations remain available for the remainder of the period is important…. Even when reduced to the period from 29th September 1988 until he left office as head of state, which the provisions for specialty protection in section 6(4) of the Extradition Act 1989 would ensure was the only period in respect of which Spanish judicial authorities would be entitled to bring charges against him is he were to be extradited, the allegation is that he was a party to the use of torture as a systematic attack on all those who opposed or who might oppose his government."
The Fifth Ground
Mr Justice Jack :
"8. Part 1 of the 2003 Act did not effect a simple and straight forward transposition, and it did not on the whole use the language of the framework decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."
Lord Hope stated in paragraphs 23 and 24:
"23. The reason why discussions about the introduction of the European arrest warrant generated so much heat in the United Kingdom was a lack of confidence in the ability of the criminal justice arrangements of other member states to measure up to the standards of our own, and a corresponding lack of trust in the ability of the new system to protect those against whom it might be used. Now that the argument is over and the new system is in force it has to earn that trust by the way it is put into practice. The system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down. 24. …….. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty."
"The magistrate will then consider whether the conduct set out in the particulars of conduct furnished by the requested state constituted an offence under the law set out in the particulars of law supplied by the requesting state."
However, despite similarities of wording between section 2(1) of the Extradition Act 1989 and section 64(3), I do not consider that such an exercise is necessary for the purpose of the section 64(3). In my view it is enough for the warrant to identify the conduct and provision of law under which it is criminal in the extraditing state. In paragraph 30 of his opinion in Cando Armas Lord Hope stated.
"30. The definitions of what constitute an extradition offence for the purposes of Part 1 are based on the principle, recognised in international law, that states claim criminal jurisdiction over conduct which takes place within their territory. The judge need not concern himself with the criminal law of the requesting state when he is addressing the question whether the offence specified in the Part 1 warrant is an extradition offence. But he does have to consider where the conduct which is alleged to constitute the offence took place."
Grounds 4 and 5
LORD JUSTICE LATHAM: In this matter, for the reasons given in the judgments which have been provided to the parties, the appeal is dismissed and there is an order for the appropriate assessment of the appellant's costs.