CCPR/C/123/D/2831/2016
1.
The author of the communication is M.A.K., a Syrian national living in Spain, born
on 1 July 1945. He claims to be the victim of a violation by Spain of his rights under
articles 2 (1) and (3), 7, 9 (1) and (5), 10 (1), 14 (1) and (7), 15 (1) and 26 of the Covenant.
He is represented by counsel, Isabelle Coutant Peyre. The Optional Protocol to the
Covenant entered into force for Spain on 25 April 1985.
The facts as submitted by the author
2.1
The author has worked in international trade all his life, including as an intermediary
in the legal arms market. In 2007, the author was approached by representatives of the
Government of Nicaragua wishing to purchase arms. It later transpired that they were in
fact undercover agents of the Drug Enforcement Administration.
2.2
On 7 June 2007, the author was arrested at Madrid-Barajas airport in Spain, having
just arrived from Málaga. He was then informed that the Embassy of the United States of
America had issued a note verbale that same day calling for his provisional detention with a
view to his extradition, along with two other persons. The note verbale set out charges
brought by the United States District Court for the Southern District of New York on 29
May 2007 relating to: (a) conspiracy to aid and abet an organization designated a terrorist
organization by the United States; (b) conspiracy to kill United States citizens; (c)
conspiracy to kill United States public officials and employees; (d) conspiracy to acquire
and use anti-aircraft missiles; and (e) money-laundering. A national arrest warrant dated the
same day and issued by the same court was attached.
2.3
On 8 June 2007, Central Investigating Court No. 6 of the National High Court of
Spain issued an order for the author to be kept in provisional detention. The author refused
to be extradited and requested his immediate release, while denying all the charges brought
against him. He submitted that the offence with which he was charged had been “provoked
by Drug Enforcement Administration agents” and that an offence committed as a result of
provocation (delito provocado) could not be the subject of a criminal prosecution in Spain.
The author further submitted that the extradition request was politically motivated, as he
had allegedly spoken out against the policy of President George W. Bush concerning the
war in Iraq and was sympathetic towards Palestine.
2.4
In an order dated 26 October 2007, the fourth section of the Criminal Division of the
National High Court issued an opinion in favour of the author’s extradition, on condition
that diplomatic assurances were provided that he would not be sentenced to death and that
in the event of his being sentenced to life imprisonment, the sentence could be reduced. The
order contained a dissenting opinion according to which the sequence of events established
by the Drug Enforcement Administration showed that the offence serving as the basis for
the extradition request was in fact committed as a result of provocation and, as such, could
not be the subject of a prosecution in Spain.
2.5
In a note verbale dated 19 December 2007, the Embassy of the United States in
Spain stated that, in the event of the author’s being extradited, the Attorney General would
not ask for the death penalty or for life imprisonment and that he would do everything in his
power to ensure that the author received a fixed-term sentence.
2.6
On 15 January 2008, the Criminal Division of the National High Court rejected the
author’s appeal against the order of 27 October 2007. Three dissenting opinions were
issued, according to which the offence serving as the basis for the extradition request had
been provoked.
2.7
On 5 March 2008, the Constitutional Court rejected the author’s application for
amparo.
2.8
On 8 April 2008, the fourth section of the Criminal Division of the National High
Court found the diplomatic assurances provided to be sufficient and upheld the decision to
extradite the author.
2.9
On 6 June 2008, the Council of Ministers agreed to the rendition of the author to the
United States authorities, subject to the conditions and limitations set by the National High
Court. That decision could not be appealed. The author claims that he was never notified of
the decision in question.
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GE.18-13666