Por Luis Chabaneix
Article 4 of the Passive Extradition Act stipulates in paragraph 3 that extradition shall not be granted if the person sought is to be tried by an exceptional court. This is a mandatory ground for refusing extradition.
This provision of extradition legislation is nothing more than the logical consequence of the right to an ordinary judge predetermined by law and the prohibition of Courts of this nature explicitly established in the Spanish Constitution of 1978.
The right to the ordinary (natural) judge predetermined by law aims to ensure basic guarantees of the criminal process, such as the independence and impartiality of judges and courts. This avoids illegitimate interference in judicial activity by the other powers of the State.
It means that the law must determine in advance which judicial body will examine the case before it even exists. The legal norm, in accordance with general rules, will establish that Judges and Courts will have jurisdiction and competence to investigate and/or prosecute the litigation prior to the facts and in accordance with general rules, common to all those being tried.
Likewise, the judicial authority must be part of the organisation, functions and procedures of the country’s judiciary without constituting a judicial system parallel to the ordinary one.
So what is an exceptional court? It will be exactly the opposite: a judicial body located outside the ordinary jurisdiction, whose organisational, functional and procedural characteristics have no parallel in the national judicial system, created after the punishable acts and, therefore, ad hoc for the repression of certain conducts and even individuals.
Moreover, it will be a Court whose composition and operational regime has been interfered with by the executive power, which has given it more political than jurisdictional purposes, among other reasons, by freely electing and dismissing its members, who, in this way, do not only obey its best legal criteria.
However, an exceptional court should not be confused with a specialised court or with the assumption of both investigative and prosecutorial functions by the same judicial body.
These Courts are not special or exceptional but focus on certain matters, usually technically complex and requiring specialised Judges and Courts. For this reason, they are backed by law and, with these specificities, are fully part of the ordinary administration of justice. Such is the case of the Audiencia Nacional itself.
That said, in order to explain what constitutes an exceptional Court in extradition matters, it is most useful to use a recent example drawn from the Office’s experience.
In the refusal of the extradition to Benin of the former minister and opposition leader Komi Koutché, Chabaneix Abogados Penalistas argued that the Court for the Repression of Economic Crimes and Terrorism (CRIET), which would try our client, was a Court of exception.
The Criminal Chamber of the Audiencia Nacional (Spanish High Court) fully upheld this ground of opposition as one of the reasons for refusing to hand Komi Koutché over to the Beninese authorities.
Why? Because the Court for the Repression of Economic Crimes and Terrorism of the Republic of Benin was a clear example of a court of exception.
In fact, the CRIET, a newly created tribunal created after the facts for which it was being sued, took jurisdiction away from the natural judge in Cotonou who had to assess them. Its members were appointed directly by the Council of Ministers and on the advice of the High Council of the Judiciary, whose composition, as amended by a law of the same date as that establishing the CRIET, included none other than the President of the Republic, the Minister of the Civil Service and the Minister of Finance.
In addition, our client’s status as a political activist led us to believe that the whole procedure was aimed at persecuting a political adversary.
