LOOKER v. SPAIN

THIRD SECTION

DECISION

Application no. 51568/19
Shane Kenneth LOOKER
against Spain

The European Court of Human Rights (Third Section), sitting on 11 May 2021 as a Chamber composed of:

Paul Lemmens, President,
Georgios A. Serghides,
Georges Ravarani,
María Elósegui,
Darian Pavli,
Anja Seibert-Fohr,
Peeter Roosma, judges,
and Milan Blaško, Section Registrar,

Having regard to the above application lodged on 31 October 2019,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by Reprieve, a United Kingdom based non-governmental organisation, which was granted leave to intervene under Rule 44 § 3 (a) of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Shane Kenneth Looker, is a British national, who was born in 1969 and, at the time of the proceedings, was detained in prison in Aranjuez, Spain, pending extradition. His application was lodged on 31 October 2019. He was represented before the Court by Ms M. Balaguer Bataller, a lawyer practising in Barcelona.

2.  The Spanish Government (“the Government”) were represented by their Agent, Mr A.M. Brezmes Martínez de Villareal, State Attorney.The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.First set of proceedings: the granting of the extradition request

4.  On 3 November 2015, the Thai authorities lodged a request with the Spanish authorities for the applicant’s provisional arrest, with a view to his extradition. The applicant was accused of murdering a Thai national and hiding her body in a suitcase in Thailand in November 2014. After that, the applicant had left Thailand and was allegedly residing in Ibiza, Spain.

5.  The Thai Government sent to the Spanish authorities a report prepared by the Thai police, which contained a summary of the evidence gathered against the applicant in respect of the crimes that he had allegedly committed. According to the report, the applicant had entered Thailand via Suvarnabhumi Airport (Bangkok) on 31 October 2014. He had murdered a Thai woman, aged 27, on the night of 1-2 November 2014, while she had been in his hotel room in Bangkok. The woman had worked as a prostitute in a bar, and she had been recorded by video cameras leaving the bar with the applicant on the night in question. They had also been witnessed entering the hotel together. The next day the applicant had checked out of the hotel and had asked a bellboy to help him carry his suitcase outside. The bellboy later reported that the suitcase had been very heavy and that two persons had been needed to carry it to the van in which the applicant had then driven away. The woman had not been seen leaving the room. One of the hotel’s cleaners had declared that some of the applicant’s bedroom sheets had had bloodstains on them and that one of the pillows had been missing.

6.  On 6 November 2014, a man reported that he had found a suitcase in a river. The suitcase, identical to one owned by the applicant, contained the woman’s body, as well as several stones and rocks together weighing over 12 kg. A witness declared that the decorative stones found in the suitcase were identical to some bought from him by the applicant. According to another witness, the applicant lived in a house in Thailand for about six months every year. The clothes he had been wearing on the night of 1 November 2014 were found in that house following a search. His DNA (taken from some of his possessions) was compatible with DNA samples taken from the victim’s nails and skin on her waist. The applicant left Thailand on the Padang train for Malaysia on 27 November 2014.

7.  On the basis of the above, the Thai police deemed that there was enough evidence to open criminal proceedings against the applicant. Under Thai law, the offences that he was accused of carried the death penalty or life imprisonment. The prosecutor in charge of the investigation ordered that he face prosecution for those offences, and the Thai Government requested his arrest and extradition.

8.  Extradition proceedings were subsequently initiated in Spain under a decision of the Council of Ministers of 18 March 2016.

9.  On 8 June 2017, the applicant was arrested in Ibiza, Spain, and subsequently appeared before the Audiencia Nacional. He declared that he did not have a job or family in Spain but that he intended to reside in that country. He opposed his extradition to Thailand. On the same date, he was placed in pre-trial detention.

10.  On 31 July 2017 the Audiencia Nacional asked the Ministry of Justice of the United Kingdom whether it was in their interest to exercise jurisdiction over the crime by prosecuting the applicant itself. The information in that regard submitted by Thailand was referred in full to the relevant authorities of the United Kingdom. The United Kingdom later informed the Audiencia Nacional that they did not intend to request the applicant’s extradition, but they did ask the Audiencia Nacional to seek assurances from Thailand that the applicant would not be sentenced to death.

11.  On 18 December 2017 the applicant appeared before the Audiencia Nacional in a hearing held to decide on his extradition.

12.  By a decision of 16 January 2018 (no. 1/2018), the Audiencia Nacional ruled that the applicant had failed to substantiate the existence of a personal and objective risk of being subjected to inhuman or degrading treatment if extradited, and granted the extradition request on the condition that the Thai authorities provided appropriate assurances that:

- if the applicant were sentenced to death, that penalty would not be enforced; or

- if the applicant were sentenced to life imprisonment, the penalty would not be irreducible and would be reviewed in the course of its enforcement; and

- in the event that a life sentence could not, under law, be reviewed, such a penalty would not be imposed; rather, the penalty imposed would not amount to more than between fifteen and twenty years’ imprisonment.

The Audiencia Nacional also noted that, given that the applicant was a British national accused of a crime allegedly committed in Thailand against a Thai national, Spain could have extradited the applicant to the United Kingdom had the country of his nationality so requested; however, Spain did not have any obligation to take enhanced protective measures as regards his extradition to Thailand.

13.  On appeal, the Plenary of the Criminal Section of the Audiencia Nacional partially ruled (by a decision of 21 March 2018) in favour of the applicant in as much as it ordered that the extradition was only to be allowed in respect of the crime of murder (and not the crime of hiding the body of the murdered woman, which was not a separate offence under Spanish law). However, the Audiencia Nacional noted that Spain had no jurisdiction to prosecute the applicant; it also noted that the United Kingdom had expressly ruled out the possibility of it requesting his extradition in order that it might conduct such a prosecution itself.

14.  The Audiencia Nacional also contended that Thailand had carried out a comprehensive investigation into the events in question and, on the basis of the evidence submitted, there were reasonable grounds to believe that the applicant could have participated in the murder. The Audiencia Nacional furthermore noted that the applicant was accused of a standard offence (delito ordinario); it was not linked with any political activity.

15.  In respect of prison conditions in Thailand, the Audiencia Nacional concluded that there were no substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to inhuman treatment. In the Audiencia Nacional’s view, the applicant had failed to substantiate the existence of cases of torture or degrading treatment. It considered that certain reports submitted by the applicant (which had been issued by the International Federation for Human Rights and Amnesty International) were either not relevant or insufficient to show that he would be subjected to or be held in inhuman conditions. Concerning the possibility of being sentenced to death or life imprisonment, the court insisted that the extradition had been agreed subject to certain conditions and that the Public Prosecutor’s Office in Thailand had given assurances that the death penalty would not be applied to the applicant.

16.  The above-mentioned decision of the Plenary of the Criminal Section of the Audiencia Nacional contained a dissenting opinion from two judges.

17.  On 30 April 2018, the applicant lodged an appeal for annulment (incidente de nulidad) in respect of the decision of 21 March 2018 (see paragraph 13 above); that appeal was declared inadmissible by a decision of 25 May 2018 of the Plenary of the Criminal Section of the Audiencia Nacional.

18.  The applicant subsequently lodged an amparo appeal (no. 3976-2018) with the Constitutional Court against (i) the decision of the Plenary of the Criminal Section of the Audiencia Nacional of 16 January 2018 (see paragraph 12 above) authorising the applicant’s extradition, subject to conditions, and (ii) the decision of the Audiencia Nacional of 21 March 2018 (see paragraph 13 above) confirming the extradition on appeal (provided that the applicant was to be charged solely with the crime of murder). By a decision of 26 July 2018, the Constitutional Court declared the applicant’s amparo appeal inadmissible, on the grounds that there had been no violation of any fundamental right that could be protected by means of an amparo appeal.Second set of proceedings: assurances given by the Thai authorities and the lodging of the first application with the Court

19.  Following the decision of the Audiencia Nacional of 16 January 2018 (see paragraph 12 above), the Spanish Ministry of Foreign Affairs requested the necessary assurances from the Thai authorities before proceeding with the extradition.

20.  On 11 May 2018 the Audiencia Nacional received a first note verbale (no. 49001/83) from the Thai Embassy in Madrid. The relevant parts of the note verbale read as follows:

“... the Royal Thai Government gives its assurance that it shall seek [a sentence of] life imprisonment in lieu of the death penalty, [under the relevant] provisions of law currently in force, [in order to ensure that the applicant] shall not [receive] the death penalty. If the [court] gives a death sentence, the Royal Thai Government shall submit a recommendation for [a ... pardon].”

21.  On 29 June 2018 the Audiencia Nacional received a second note verbale (no. 49001/430) from the Thai Embassy. The relevant parts of the note verbale read as follows:

“[The] Royal Thai Government [gives its assurance] that in the event that a life sentence is given, the said sentence [will be] revisable, in accordance with [Articles] 259-67 of the Thai Criminal [Code].”

22.  On 12 July 2018, a third note verbale (no. 49001/456) from the Thai Embassy was delivered to the Audiencia Nacional at the request of the Spanish authorities. The note verbale included a translation in Spanish of Articles 259-267 of the Thai Code of Criminal Procedure and provided information regarding the respective procedures for requesting and granting a royal pardon.

23.  On 26 July 2018 the Audiencia Nacional received a note verbale (no. 131) issued by the British Embassy in Madrid explaining that the British Government took an interest in all cases where there was a possibility that the death penalty would be imposed. The note verbale furthermore stated that “it appears that the Royal Thai Government is not able to provide guarantees that the death penalty would not be imposed or carried out under any circumstances” and requested the Spanish authorities to confirm “whether they consider the information provided by the Thai authorities sufficient to comply with the request for guarantees”.

24.  By a decision of 31 July 2018, the Audiencia Nacional ruled that the assurances provided by the Thai authorities were sufficient for the applicant to be extradited without violating the applicant’s right to life or his right not to be subjected to inhuman or degrading treatment. As a result, it agreed to proceed with the extradition of the applicant. The court allowed the request for the applicant’s extradition without prejudice to the final decision of the Council of Ministers, deeming that the assurances given by Thailand were sufficient, given that (i) the authorities had undertaken not to seek the death penalty (and even if that penalty were to be imposed, it could be commuted by means of a request for royal pardon), and (ii) as for the imposition of a sentence of life imprisonment, the legislation regarding the respective procedures for requesting and granting a royal pardon allowed for a request to be lodged every two years (in the event of it being refused), and (in the event of such a request being allowed) an alternative to the death penalty existed in the form of the imposition of a maximum period of twenty years’ imprisonment. The Audiencia Nacional thus considered that the assurances given by the Thai Government complied with the case-law of the European Court of Human Rights.

25.  The applicant lodged an appeal (recurso de súplica) against the aforementioned decision. It was dismissed on 12 September 2018 by a decision of the Audiencia Nacional, which fully upheld its previous decision.

26.  On 13 September 2018, the Audiencia Nacional confirmed that the decision on the applicant’s extradition of 16 January 2018 – taken together with the decision of 21 March 2018 (which partially limited its scope – see paragraph 13 above) – was final, and that the extradition only awaited the mandatory approval of the Council of Ministers.

27.  The Council of Ministers approved the applicant’s extradition on 28 December 2018, given that it found no political, public-order-related or other reasons to oppose it.

28.  The applicant lodged another amparo appeal (no. 196-2019) with the Constitutional Court against the decision taken on 28 December 2018 by the Council of Ministers, on the grounds that the authorisation of his extradition violated his right to life, his right not to be subjected to inhuman or degrading treatment, and his right to fair trial. He complained that the assurances provided by the Thai Government had been accepted by the Spanish courts without any assessment of their trustworthiness, and that they could not be considered sufficient to neutralise the risk of his being executed, since a royal pardon constituted a merely discretionary prerogative. The same uncertainty applied to the prospects of his being sentenced to life imprisonment. He also pointed to the psychological suffering that being held on “death row” could cause him. Lastly, he argued that the inhumane prison conditions of Thailand would violate his fundamental rights, regardless of the specific prison he was sent to, and that the judicial proceedings would not be held in accordance with his fundamental procedural rights either.

29.  The applicant noted that the Council of Ministers’ decision constituted the final domestic decision on the issue, and was thus, according to him, the decision that should be challenged by means of an amparo appeal (and not the judicial decision of the Audiencia Nacional of 12 September 2018 – see paragraph 25 above).

30.  On 8 January 2019, the applicant requested the Court under Rule 39 of the Rules of Court to indicate an interim measure staying his extradition. Specifically, he requested the Court that his extradition be stayed pending the outcome of the proceedings before the Constitutional Court. The next day, the Court indicated the interim measure (application no. 1311/2019) and requested further information from the Spanish Government and the applicant.

31.  On 16 January 2019 the Constitutional Court declared the amparo appeal admissible, and on 4 February 2019 it adopted an interim measure suspending the applicant’s extradition pending its decision on the amparo appeal. In the light of this, the Strasbourg Court lifted its own interim measure and requested the applicant to submit a fully-completed application form before 11 March 2019.

32.  The applicant lodged his application with the Court against both the United Kingdom and the Kingdom of Spain.

33.  On 2 May 2019, the Court, sitting in a single-judge formation pursuant to Articles 24 § 2 and 27 of the Convention, declared the application no. 1311/2019 inadmissible, in part as premature, given that the amparo appeal was still pending.

34.  Following the submissions by the Public Prosecutor’s Office and the State Agent’s office, by a Chamber judgment of 16 September 2019, the Constitutional Court declared the amparo appeal inadmissible as having been introduced out of time. One dissenting opinion was added to the judgment.

35.  The Constitutional Court noted that the applicant had only lodged his amparo appeal against the decision taken by the Council of Ministers on 28 December 2018. The applicant had not, however, formally contested the judicial decisions adopted by the Audiencia Nacional on 31 July 2018 (see paragraph 24 above) declaring that the assurances from the Thai Government were sufficient, and on 12 September 2018 (see paragraph 25 above), upholding the former on appeal. The applicant did not provide any specific reasons in this regard. For the Constitutional Court, the violations of fundamental rights alleged by the applicant ˗ had they been substantiated ˗, would have originated in the judicial decisions of the Audiencia Nacional, and not in the decision of the Council of Ministers, which was of political nature. Thus, although the applicant’s amparo appeal had been lodged against the decision of the Council of Ministers from a formal standpoint, in substance he had argued that his fundamental rights (to life, not to be subjected to inhuman treatment and to fair trial) had been violated by the decision (of the Council of Ministers) to extradite him, because the assurances provided by Thailand had been wrongly assessed and were not sufficient. That assessment, according to the Constitutional Court, had not been made by the Council of Ministers, but by the Audiencia Nacional.

36.  The decisions of the Audiencia Nacional were susceptible of amparo appeal of which the applicant had availed himself in respect of the first set of decisions (see paragraph 18 above). That amparo had been declared inadmissible because the challenged decisions subjected the applicant’s extradition to certain conditions. At that time it had not been known whether those conditions were met by the assurances provided by Thailand. For the Constitutional Court, once Thailand had sent the assurances, the Audiencia Nacional assessed them in its judgments of 31 July 2018 and, on appeal, 12 September 2018. The applicant could and should have then filed an amparo appeal against those decisions within a thirty day time-limit, that is until 13 October 2018. However, he did not file such an amparo appeal. Instead, he waited for the Council of Ministers’ final decision - of a political and not judicial nature - which marked the end of the extradition procedure. The reason for the Constitutional Court to declare the second amparo appeal inadmissible was not that the Council of Ministers’ decision could not be appealed; it could, but not in order to challenge the assessment of the assurances provided by Thailand because that assessment had not been made by the Council of Ministers, but by the Audiencia Nacional. Therefore, the Constitutional Court concluded that the time-limit to lodge the applicant’s amparo appeal had started to run when the final decision of the Audiencia Nacional was served on him, and that by the time the applicant lodged his amparo appeal on 10 January 2019, the time-limit to appeal against the assessment of the assurances provided by Thailand made by the Audiencia Nacional had already elapsed. As a result, the amparo appeal introduced by the applicant was outside the time-limit.Second application before the Court

37.  On 3 October 2019, the applicant requested the Court under Rule 39 of the Rules of Court to indicate an interim measure staying his extradition. On the following day, the Court decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate an interim measure to the Spanish Government that the applicant should not be extradited for the duration of the proceedings before the Court (application no. 51568/19). The Government informed the Court that a decision of the Audiencia Nacional of 7 October 2019 had already extended the applicant’s pre-trial detention until 7 June 2021 and cannot be legally further extended. Reportedly, the applicant remains in detention pending extradition.

38.  On 31 October 2019, the applicant completed the present application against the Kingdom of Spain with the Court (no. 51568/19).Relevant domestic lawThe Spanish Constitution

39.  The relevant provisions of the Spanish Constitution read as follows:

Article 10

“1. Human dignity, inviolable and inherent rights, the free development of the personality, and respect for the law and for the rights of others are the foundation of political order and social peace.

2. The principles relating to the fundamental rights and liberties recognised by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements in respect thereof ratified by Spain.”

Article 15

“Everyone shall have the right to life and to physical and moral integrity, and may under no circumstances be subjected to torture or to inhuman or degrading punishment or treatment. The death penalty is hereby abolished, except as provided by military criminal law in times of war.”The Extradition Act no. 4/1985 of 21 March 1985

40.  Under section 1, extradition is only possible between Spain and foreign States under a treaty concluded on a mutual basis.

41.  Under section 4(6), extradition may not be granted if the requesting State does not personally guarantee that the person will not be executed or subjected to a punishment amounting to inhuman and/or degrading treatment.

42.  Under section 7, an extradition request must be lodged with the Ministry of Foreign Affairs by means of a diplomatic note or directly with the Ministry of Justice. The Ministry of Justice then issues its recommendation regarding the request and sends it to the Government, who decide on whether to continue with the proceedings (section 9).

43.  Under section 12, if the Government decide to continue with the proceedings, the request will be forwarded to the relevant judge.

44.  Sections 14 and 15 provide that after an investigation and a hearing the judge shall decide whether to grant or refuse an extradition request. That decision shall be open to appeal (recurso de súplica) in the Plenary of the Criminal Division of the Audiencia Nacional.

45.  Section 18 provides that if the domestic courts grant an extradition request, the matter will then be referred to the Government, who ultimately decide whether or not to hand the person in question over to the requesting State.

46.  Section 18 refers to section 6, which establishes that the Government cannot authorise an extradition if the final judicial decision in that respect is to not to authorise it. However, the Government is not bound to comply with the judicial decision if it does authorise an extradition, and may decline to authorise it exercising its powers of national sovereignty, in accordance with the principle of reciprocity, or for reasons of security, public order or any other essential national interest. The Government’s decision cannot be appealed against.The Organic Law on the Constitutional Court (“the LOTC”), as amended under Organic Law no. 6/2007 of 24 May 2007

47.  Article 44 provides as follows:

“1. Violations of rights and freedoms which are open to an amparo appeal and which derive immediately and directly from an act or omission on the part of a judicial body may give rise to such an appeal, subject to the following conditions:

(a) that all the legal remedies provided by procedural rules have been exercised in practice, through judicial channels ...;

(b) that the violation of the right or freedom [in question] is immediately and directly attributable to an act or omission on the part of the judicial body, regardless of the circumstances that led to the proceedings in which it occurred, which shall in no circumstances be adjudicated by the Constitutional Court;

(c) that the violation of the constitutional right [in question] was formally reported, if there was an opportunity to do so, as soon as it became known and [a procedural opportunity arose to lodge a complaint].

2. The deadline for lodging an amparo appeal shall be thirty days from the date of the [the parties concerned] being notified of the ruling delivered in the judicial proceedings.”

COMPLAINTS

48.  The applicant complained that his extradition to Thailand would expose him to treatment incompatible with Articles 2 (in conjunction with Protocol No. 13) and 3 of the Convention, as he would face the risk of being sentenced to death, or alternatively, to life imprisonment. He also complained of the potential conditions of detention he would suffer, under the same articles. He further complained that his extradition to Thailand would amount to a violation of Article 6 of the Convention on the grounds that he would not have a fair trial in Thailand.

THE LAW

49.  Invoking Articles 2 (in conjunction with Protocol No. 13), 3 and 6 of the Convention, the applicant complained of his extradition to Thailand and the risk he would encounter and about the lack of a fair trial in Thailand.

50.  The said provisions read as follows:

Article 2 of the Convention

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

....”

Article 1 of Protocol No. 13 to the Convention

“The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”

Article 2 of Protocol No. 13 to the Convention

“No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.”

Article 3 of the Convention

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 6

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”The parties’ submissionsThe Government

51.  The Government considered that the applicant had not exhausted the available domestic remedies, as required by Article 35 § 1 of the Convention. The Constitutional Court had already declared inadmissible the applicant’s first amparo appeal against the decisions that had made his extradition conditional on the assurances sought from the Thai Government.

52.  The Government argued that once those assurances had been deemed sufficient by the decisions of the Audiencia Nacional of 31 July 2018 and 12 September 2018 (see paragraphs 24-25 above), the applicant should have lodged a new amparo appeal before the Constitutional Court in order to challenge in a timely manner the alleged violation of his fundamental rights by those decisions. However, he had not appealed, and those decisions had thus become final.

53.  Then, the applicant had lodged an amparo appeal expressly and exclusively against the decision taken on 28 December 2018 by the Council of Ministers (see paragraph 27 above). According to the Government, what the applicant had actually objected to in his second amparo appeal had been precisely what he should have complained of in respect of the previous decisions of the Audiencia Nacional. In other words, the applicant had not made use of the opportunity to lodge a new amparo appeal against the judicial decisions accepting the Thai guarantees; instead, he had appealed against a subsequent act on the part of the Council of Ministers, although the alleged violation of rights could only be attributable to the judicial decision of the Audiencia Nacional. That appeal had been declared inadmissible by the Constitutional Court because it had been lodged only after the legally established time-limit provided by Article 44 § 2 of the Organic Law on the Constitutional Court (see paragraph 47 above).

54.  Therefore, the applicant had not correctly exhausted the domestic remedies available to him prior to lodging his application with the Court.

55.  The Government further argued that the application was inadmissible on other grounds: insofar as it relied on the same facts and complaints as those previously brought before the Court by the same party in application no. 1311/19; and because the applicant had not complied with the six-month time limit laid down in Article 35 § 1 of the Convention, given that the time-limit did not begin on 16 September 2019 (see paragraph 34 above), but on 13 September 2018, when the applicant was served with the decision of the Audiencia Nacional, which he did not contest (see paragraph 26 above).The applicant

56.  The applicant contested the Government’s objection as to his failure to exhaust domestic remedies. He maintained that two alternative possibilities in respect of lodging an appeal had existed – either an amparo appeal against the decisions of the Audiencia Nacional or an amparo appeal against the administrative decision of the Council of Ministers – and that he had chosen the latter. Given the lack of legal clarity that he had faced, he could not be blamed for having chosen a certain remedy (Brincat and Others v. Malta, nos. 60908/11 and 4 others, 24 July 2014, § 69). Furthermore, he argued that both alternatives would have had the same consequences should a violation of his fundamental rights be found by the Constitutional Court.

57.  According to the applicant, the Constitutional Court had had the opportunity to remedy the alleged violation but had declined to do so, having adopted an overly formalistic interpretation of the relevant law.

58.  The applicant further refuted the other objections of the Government as to the admissibility of the application, considering that there had been no previous decision on the merits of the complaints that were being raised and that 16 September 2019 should constitute the starting date for the calculation of the six-month period and that, in any event, the decision ordering his removal not having been enforced, the six-month period would not have started to run (see B.Z. v. Sweden, no. 74352/11, §§ 32-34, 29 May 2012, and M.Y.H. and Others v. Sweden, 27 June 2013, §§ 38-41).The Court’s assessment

59.  The applicant lodged his second amparo appeal with the Constitutional Court against one specific decision: that of the Council of Ministers of 28 December of 2018.

60.  Extradition proceedings under Spanish law comprise three stages: the first stage requires a decision by the Council of Ministers (wielding its executive power) to initiate the extradition in question; the second stage consists of a domestic court (exercising judicial power) analysing and delivering a decision regarding whether the extradition should be allowed on legal grounds; and the third stage consists of another decision issued by the Council of Ministers (again wielding executive power), which can either give final approval for the extradition to take place if the judicial decision has authorised it, or definitively block it regardless of the previous judicial approval (see paragraph 46 above).

61.  The Court observes that according to the applicant, Spanish extradition proceedings were in fact unitary. For him, lodging an amparo appeal against the decision of the Council of Ministers could have called into question the entirety of the proceedings.

62.  For the Government, by contrast, as for the Constitutional Court, the three stages of the extradition proceedings are perfectly independent of each other, despite running consecutively.

63.  In the case at hand, once the judicial stage was terminated by the decision of the Audiencia Nacional of 31 July 2018 (see paragraph 24 above), which held that the assurances given by the Thai authorities were sufficient, the applicant appealed; the same court dismissed that appeal on 12 September 2018 (see paragraph 25 above). That marked the end of the judicial stage. From that moment, the applicant had thirty days in which to lodge an amparo appeal (under Article 44 § 2 of the LOTC – see paragraph 47 above) against that decision with the Constitutional Court, arguing that extraditing him on the basis of such allegedly weak assurances would be in breach of his fundamental right to life and to not be subjected to ill-treatment. But he did not appeal, and the judicial decisions became final.

64.  The Court agrees with the Government that it was the Audiencia Nacional, not the Council of Ministers, that decided that the assurances received from the Thai authorities were sufficient for the applicant to be extradited without violating his right to life or his right not to be subjected to inhuman or degrading treatment (see paragraph 24 above). Any alleged violation of Articles 2 and 3 of the Convention on the basis of an incorrect assessment of the sufficiency of those assurances would have been caused by the decisions of the Audiencia Nacional. The Council of Ministers’ decision was limited to stating that there were no reasons of national sovereignty, security, public order or other essential national interests not to grant the extradition. The Court observes that the applicant complained in his second amparo appeal that the Audiencia Nacional had not duly considered the assurances requested from the Thai authorities. However, the issue which the applicant complained of (the sufficiency of those assurances in the light of the requirement that his fundamental rights be observed) had already been ruled on by the Audiencia Nacional, by a decision that had become final (see paragraphs 24-26 above), and it could not be brought before the Constitutional Court by the time the applicant lodged his amparo appeal. The Court notes that the applicant indirectly tried to contest the sufficiency of those assurances by appealing against the subsequent decision of the Council of Ministers, but the proper time to do that had already elapsed. As a result, the amparo appeal was declared inadmissible for the applicant’s non-compliance with the thirty day time-limit running from 13 September 2018 (see paragraph 47 above). The Constitutional Court held on 16 September 2019 – in a judgment adopted by a bench composed of seven judges, after receiving written submissions from the applicant, the Public Prosecutor’s Office and the State Attorney (see paragraph 34 above) – that the applicant’s amparo appeal was inadmissible.

65.  Furthermore, the applicant had already lodged a first amparo appeal with the Constitutional Court against the decisions of the Audiencia Nacional provisionally authorising his extradition, subject to receiving sufficient assurances from the Thai authorities (see paragraphs 12-13 above). That first amparo appeal was declared inadmissible by the Constitutional Court on 26 July 2018 (see paragraph 18 above) because no violation of fundamental rights could possibly take place before the assurances had been delivered and assessed. Thus the applicant was aware that he could have lodged an amparo appeal against the judicial decisions of the Audiencia Nacional within the extradition proceedings.

66.  The Court reiterates that Article 35 § 1 of the Convention has not been complied with when an appeal is not accepted for examination because of a procedural mistake by the applicant (see Gäfgen v. Germany [GC], no. 22978/05, § 143, ECHR 2010).

67.  In sum, the applicant did not provide the national courts with the opportunity that is in principle intended to be afforded to the Contracting States by Article 35 of the Convention – namely the opportunity to prevent Convention violations through their own legal system (see, among others authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 29, 25 March 2014).

68.  It follows that the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for the applicant’s failure to exhaust domestic remedies. This conclusion dispenses the Court from addressing the other objections of the Government (see paragraph 55 above).

69.  Consequently, the application of Rule 39 of the Rules of Court comes to an end.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 25 May 2021.

              {signature_p_2}

Milan BlaškoPaul Lemmens
RegistrarPresident

Full & Egal Universal Law Academy