CONSTITUTIONAL COURT OF SPAIN Office of the President Press Office

PRESS RELEASE No. 7/2019

THE PLENARY OF THE CONSTITUTIONAL COURT WILL NOT EXAMINE THE AMPARO APPEAL FILED BY A TAIWANESE CITIZEN AGAINST THE DECISION OF THE AUDIENCIA NACIONAL TO HAVE HER EXTRADITED TO CHINA

The Plenary Session of the Constitutional Court has rejected an appeal for constitutional protection (“recurso de amparo”) filed by the Taiwanese citizen Yu Yen Yun against the Decision issued by the Plenary of the Criminal Chamber of the Spanish Audiencia Nacional on February 16th 2018. This Court had resolved to have the appellant extradited to the People's Republic of China for trial, along with other defendants, in connection with fraud charges. The criminal offence committed affected multiple victims and were perpetrated during a given period by an organised structure operating in Spain.

In its decision drafted by Magistrate Cándido Conde-Pumpido, the Constitutional Court ruled that "the claims raised in the amparo application must be considered groundless" considering their generic and undetermined nature. Indeed, "the appellant does not specify, in any way, which particular action she considers to be unlawful, nor is it clearly and accurately established to what extent the requirements of legality and proportionality are not met. Likewise, no argument has been raised regarding why those measures would not be directed towards a constitutionally legitimate purpose".

This decision is of the utmost importance because "the application forms part of a series of amparo appeals filed by more than 250 Chinese citizens arrested in the same massive scam operation, carried out from Spain by electronic means. It also sets out the Court's criteria for the examination of all these appeals".

The appellant argued that the decision of the National High Court had violated her rights to defence, to a fair trial, to not suffer degrading or inhuman treatments or punishment, to freedom and security and to the proportionality of sentences and to her right to access an ordinary judge predetermined by law.

With regard to the potential criminal liabilities faced in the People's Republic of China, in the event that an indictment is filed and a conviction is handed down for the crimes alleged to have been committed, the Court considers that "the extradition request in question is a request for the investigation and prosecution of a complex and presumed criminal act". Therefore, "this is not a request for extradition to serve a specific sentence, but rather a preliminary case review exempt of constitutional nature and with abstract punitive measures covering different types of criminal conducts that might give rise to different penalties depending on the different aspects of the offence in question, with a range from 10 years' to life imprisonment".

Concerning the complaint alleging a failure to ensure a fair trial, to suffer a degrading or inhuman treatment and an indirect violation of the right to defence, the decision underlines that "the arguments invoked in the application are not sufficiently detailed or grounded concerning the point that applicant comes from the island of Taiwan, and concerning the argument that, based on the premise that this condition would entail for all those who were born there a particular risk of being subjected to degrading treatment on account of that origin".

In sum, the case brought before the Court for the protection of the alleged disproportionality manifested by the appellant "cannot be taken into account because it involves the possible commission of criminal offences regarding fraud in which, at least, four aggravating factors may concur which also exist in our legal system in order to establish the abstract penalty. For instance, this case may include a mass tort (it affects multiple victims); it could be qualified as a continuous offense; the economic damage caused is of notorious importance and its commission can only have been carried out by means of a criminally organized act".

The Decision is accompanied by a dissenting opinion drafted by Magistrate Juan Antonio Xiol Ríos, who disagrees with the majority. He considers that "the application for constitutional protection raises a series of factual and legal questions of a sufficient complexity from the perspective of the indirect review of fundamental rights that would have required a thorough analysis that could only have been possible upon granting leave to proceed to it, thus allowing the involvement of the Public Prosecutor's Office". Among other arguments, he points out that it would have been necessary to clearly establish a parameter of constitutional review, which will probably be established by the case law concerning another pending appeal of unconstitutionality (see “recurso de inconstitucionalidad” RI nº3866-2015) filed against the revisable permanent prison system. It would also have been necessary to project this parameter not only on the abstract regulation of the Chinese life imprisonment system but also on the fulfilment of the requirements on the conditions or nature of the procedure through which such revision of the penalty of life imprisonment can be achieved. Only this would allow to consider properly whether that penalty should be considered an inhuman treatment contrary to Article 15 of the Spanish Constitution.

Magistrate Encarnación Roca has also formulated a dissenting opinion, considering that this amparo application should have been given permission to proceed because it constitutes a new issue, due to the lack of constitutional case-law on the matter at stake. In her opinion, "since the doctrine on the indirect violation of fundamental rights in extradition proceedings has been already established by this Court, the question whether the reviewable life sentence is contrary to the Constitution should be resolved before the proper examination of the amparo appeal". This is particularly the case when this Court is awaiting a decision on the constitutionality of the so-called reviewable permanent prison for possible violation of articles 15, 17 and 25 of the Constitution. Furthermore, in this case, the absence of damage was not "clear, obvious and notorious".

Madrid, 11 February 2019