CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 juillet 2023

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He was represented by Mr   O. Peter, a lawyer practising in Geneva. 2.     The Government were represented by their Agent, Mr A. Brezmes Martínez de Villareal, Agent of Spain before the European Court of Human Rights. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. First part of extradition proceedings 4.     The applicant was a member of the Venezuelan intelligence agency. He entered the military in 1982. He was a member of the United Socialist Party of Venezuela, and reached high-ranking positions in the army under the mandate of former President H. Chávez, including Head of Counter ‑ Espionage Services. In 2005 he was in charge of executing the Venezuelan government’s decision to expel the United States Drug Enforcement Administration (DEA) from Venezuela. 5.     In 2011 the United States District Court for the Southern District of New York issued an indictment against the applicant for offences related to drug importation into the United States. 6.     The applicant was appointed Consul of Venezuela in Aruba in January 2014. In July 2014 he was arrested at Aruba Airport on the basis of an international arrest warrant issued by the United States Department of State. Following some diplomatic negotiations, the Ministry of Foreign Affairs of the Netherlands recognised his diplomatic immunity on the basis that he had immunity as Consul of Venezuela. It declared him persona non grata and expelled him from Aruba. 7.     From 2016 to 2021 the applicant was also an elected member of the Venezuelan National Assembly. On 5 February 2019 he publicly supported Mr. J. Guaidó being recognised as the legitimate President of the Venezuelan National Assembly and interim President of Venezuela. The applicant was consequently expelled from the armed forces and accused of treason. He then left the country, going first to Trinidad and Tobago and later to the Dominican Republic. 8.     On 18 March 2019 the applicant travelled from the Dominican Republic to Spain, entering the country using another identity. 9 .     The applicant was arrested in Spain on 12 April 2019, on the basis of an Interpol search order dated 3 August 2011. An arrest warrant dated 15   April 2019 was sent by the Spanish Ministry of Foreign Affairs to the United States embassy in Spain, in accordance with a bilateral treaty between Spain and the United States covering the exchange of information about such detention. A formal extradition request was sent by the United States embassy in Spain through a note verbale ( Note Verbale no. 360) on 9 May 2019, and was received by central investigating judge no.   6 on 13 May 2019. Note Verbale no. 360 was accompanied by an affidavit from the assistant United States attorney for the Southern District of New York dated 29 April 2019, a superseding indictment in respect of the applicant dated 15 April 2019 from the United States District Court for the Southern District of New York, and the applicant’s arrest warrant issued by the same court. An affidavit by a DEA agent was also attached. 10 .     The applicant’s extradition to the United States was requested so that he could face prosecution on charges of: “[Narco-terrorism conspiracy :] knowingly and intentionally conspiring to engage in narco-terrorism, that is, conspiring to engage in conduct punishable under Title 21, United States Code, Section 841(a), knowing or intending to provide anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity or terrorism, in violation of Title 21, United States Code, Section 960a, and Title 18, United States Code, Section 3238; [Conspiracy to import cocaine into the United States :] a conspiracy to: (i) import a controlled substance into the United States and into the customs territory of the United States from a place outside thereof a controlled substance; (ii) manufacture and distribute a controlled substance, intending and knowing that such substance would be unlawfully imported into the United States and into waters within a distance of 12 miles of the coast of the United States from a place outside thereof; and (iii) manufacture, distribute, and possess a controlled substance on board an aircraft registered in the United States, in violation of Title 21, United States Code, Sections 952(a), 959(a)   &   (c), 960(a)(l) & (a)(3), and 963, and Title 18, United States Code Section 3238; [Possession of machine guns and destructive devices in furtherance of a drug ‑ trafficking crime :] using or carrying firearms in furtherance of, or possessing firearms during and in relation to, the controlled substance offenses charged in Counts One and Two of the indictment, and aiding and abetting the same, in violation of Title 18, United States Code, Sections 924(c)(1)(A) & (c)(1)(B)(ii), 3238, and 2; and [Conspiracy to possess machine guns and destructive devices in furtherance of a drug ‑ trafficking crime :] participating in a conspiracy to use or carry firearms in furtherance of, or possess firearms during and in relation to, the controlled substance offenses charged in Counts One and Two of the indictment, in violation of Title 18, United States Code, Sections 924(c)(1)(A)(i), (c)(l)(B)(ii) & (o) and 3238.” 11 .     The alleged criminal conduct took place between 1999 and 2019. The extradition request alleged that the applicant, along with another individuals, had committed acts of narco-terrorism in order to import, produce and distribute controlled substances (notably cocaine), and had possessed or used weapons for those purposes. The indictment in respect of the applicant specifically stated as follows: COUNT ONE (Narco-Terrorism Conspiracy) “The Grand Jury charges: Overview 1.     From at least in or about 1999, up to and including in or about 2019, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, was a member of a Venezuelan drug-trafficking organization comprised of high-ranking Venezuelan officials and others known as the Cartel de Los Soles, or “Cartel of the Suns.” 2.     The objectives of the Cartel de Los Soles included not only enriching its members, but also using cocaine as a weapon against the United States due to the adverse effects of the drug on individual users and the potential for broader societal harms arising from cocaine addiction. 3.     From at least in or about 1999, up to and including in or about 2019, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and other members of the Cartel de Los Soles worked with terrorist and other drug traffickers in South America and elsewhere to dispatch thousands of kilograms of cocaine from Venezuela for importation into the United States. CARVAJAL BARRIOS participated in, and caused others to participate in, the provision of heavily armed security to protect some of these drug shipments. 4.     Between at least in or about 1999, up to and including in or about 2014, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and other members of the Cartel de Los Soles worked with the leadership of the Fuerzas Armadas Revolucionarias de Colombia (‘FARC’ [the Revolutionary Armed Forces of Columbia]) to coordinate large-scale drug trafficking activities in Venezuela and Colombia, at times in exchange for military-grade weapons provided to the FARC. At all times relevant to Count One of this Superseding Indictment, the FARC was a terrorist organization dedicated to the violent overthrow of the democratically elected Government of Colombia, which also perpetrated acts of violence against United States nationals and interests and became one of the largest producers of cocaine in the world. Hugo Armando Carvajal Barrios, a/k/a ‘El Pollo’ 5.     HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, is a Venezuelan citizen. 6.     In or about 2003, Venezuelan President Hugo Rafael Chávez Frías appointed HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, to be a deputy director in Venezuela’s military intelligence agency, which was known at the time as the División de Inteligencia Militar (‘DIM’). 7.     Between in or about 2004, up to and including in or about 2011, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo’, the defendant, acted as the director of the DIM. 8.     In or about April 2013, then-Venezuelan President Nicolás Maduro Moros (‘Maduro’) made HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, the director of the DIM for a second time. CARVAJAL BARRIOS acted as director of the DIM in the Maduro administration until in or about 2014. 9.     Between in or about January 2014, up to and including in or about April 2014, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, acted as the Consul General of Venezuela in Aruba. 10.     In or about January 2016, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, was elected to the Venezuelan National Assembly as a representative of the Monagas State of Venezuela. Cartel de Los Soles 11.     One of the express objectives of the Cartel de Los Soles was to ‘flood’ the United States with cocaine. In pursuit of this objective, beginning at least in or about 1999, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and other members of the Cartel de Los Soles cultivated connections to large-scale drug traffickers, including but not limited to FARC leaders, in order to obtain large quantities of cocaine, as well as logistical support and protection along cocaine-transportation routes within and between Venezuela and Colombia. 12.     At various times between at least in or about 1999, up to and including in or about 2019, members of the Cartel de Los Soles helped cause the government of Venezuela to take official actions that enabled and facilitated drug trafficking. For example, in or about 2005, the Venezuelan government announced that it had expelled the U.S. Drug Enforcement Administration (‘DEA’) from Venezuela and largely ceased its participation in bilateral counter-narcotics operations with the DEA. As a result, and with the assistance of HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and other members of the Cartel de Los Soles , drug traffickers were able to dispatch large shipments of cocaine on planes departing from airports and clandestine airstrips in places such as Apure, Venezuela, at an increasing rate. Subsequent to these official actions by Venezuela, in or about 2006, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and other members of the Cartel de Los Soles worked together and with others to dispatch a 5.6-ton shipment of cocaine from Venezuela to Mexico on a DC-9 jet, which is an aircraft capable of transporting over 100 people. 13.     At various times between at least in or about 1999, up to and including in or about 2019, HUGO ARMANDO CARVAJAL BARRIOS a/k/a ‘El Pollo,’ the defendant, and other members of the Cartel de Los Soles participated directly in multi-ton shipments of cocaine, provided sensitive intelligence and law enforcement information to drug traffickers to facilitate cocaine shipments and other drug-trafficking activities, interfered with drug-trafficking investigations and pending criminal cases in Venezuela and elsewhere, and sold large quantities of previously-seized cocaine to drug traffickers in exchange for millions of dollars. Fuerzas Armadas Revolucionarias de Colombia 14.     Beginning in or about 1964, the FARC operated as an international terrorist group based in Colombia and Venezuela dedicated to the violent overthrow of the democratically elected Government of Colombia. In October 1997, the United States Secretary of State designated the FARC as a foreign terrorist organization, and the FARC remains so designated as of the date of the filing of this Superseding Indictment. ... STATUTORY ALLEGATIONS 18.     From at least in or about 1999, up to and including in or about 2014, in an offense begun and committed out of the jurisdiction of any particular State or district of the United States, including in Venezuela, Colombia, Mexico, and elsewhere, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and others known and unknown, at least one of whom will be first brought to and arrested in the Southern District of New York, intentionally and knowingly combined, conspired, confederated, and agreed together and with each other to violate Title 21, United States Code, Section 960a. 19.     It was a part and an object of the conspiracy that HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and others known and unknown, would and did engage in conduct that would be punishable under Title 21, United States Code, Section 841(a) if committed within the jurisdiction of the United States, to wit, the distribution of, and possession with the intent to distribute, five kilograms and more of mixtures and substances containing a detectable amount of cocaine, knowing and intending to provide, directly and indirectly, something of pecuniary value to a person and organization that has engaged and engages in terrorism and terrorist activity, to wit, the FARC (which has been designated by the United States Secretary of State as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act and remains so designated) and its members, operatives, and associates, having knowledge that such organization and persons have engaged and engage in terrorism and terrorist activity, in violation of Title 21, United States Code, Section 960a. (Title 21, United States Code, Section 960a; and Title 18, United States Code, Section 3238.) COUNT TWO (Cocaine Importation Conspiracy) The Grand Jury further charges: 20.     Paragraphs 1 through 17 of this Superseding Indictment are realleged and incorporated by reference as though fully set forth herein. 21.     From at least in or about 1999, up to and including in or about 2019, in an offense begun and committed out of the jurisdiction of any particular State or district of the United States, including in Venezuela, Colombia, Mexico, and elsewhere, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and others known and unknown, at least one of whom will be first brought to and arrested in the Southern District of New York, intentionally and knowingly combined, conspired, confederated, and agreed together and with each other to violate provisions of Title 21, United States Code, Chapter 13, Subchapter II. 22.     It was a part and an object of the conspiracy that HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and others known and unknown, would and did knowingly and intentionally import into the United States from a place outside thereof a controlled substance, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1). 23.     It was further a part of and an object of the criminal conspiracy that HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and others known and unknown, would and did manufacture, distribute, and possess with intent to distribute a controlled substance, intending, knowing, and having reasonable cause to believe that such substance would be unlawfully imported into the United States and into waters within a distance of 12 miles of the coast of the United States, in violation of Title 21, United States Code, Sections 959(a) and 960(a)(3). 24.     It was further a part and an object of the conspiracy that HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and others known and unknown, would and did, on board an aircraft registered in the United States, manufacture, distribute, and possess with intent to distribute a controlled substance, in violation of Title 21, United States Code, Sections 959(c) and 960(a)(3). 25.     The controlled substance that HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, conspired to (i) import into the United States and into the customs territory of the United States from a place outside thereof, (ii) manufacture and distribute, intending, knowing, and having reasonable cause to believe that such substance would be unlawfully imported into the United States and into waters within a distance of 12 miles of the coast of the United States from a place outside thereof, and (iii) manufacture, distribute, and possess on board an aircraft registered in the United States, was five kilograms and more of mixtures and substances containing a detectable amount of cocaine, in violation of Title 21, United States Code, Section (960)(b)(l)(B). (Title 21, United States Code, Section 963; and Title 18, United States Code, Section 3238.) COUNT THREE (Possession of Machineguns and Destructive Devices) The Grand Jury further charges: 26.     Paragraphs 1 through 17 of this Superseding Indictment are realleged and incorporated by reference as though fully set forth herein. 27.     From at least in or about l999, up to and including in or about 2019, in an offense begun and committed out of the jurisdiction of any particular State оr district of the United States, including in Venezuela, Colombia, Mexico, and elsewhere, and for which at least one of two оr more joint offenders will be first brought to and arrested in the Southern District of New York, HUGO ARMANDO CARVAJAL BARRIOS a/k/a ‘El Pollo,’ the defendant, during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States, to wit, the controlled substance offenses charged in Counts One and Two of this Superseding Indictment, knowingly used and carried firearms, and, in furtherance of such crime, knowingly possessed firearms, and aided and abetted the use, carrying, and possession of firearms, to wit, machineguns that were capable of automatically shooting more than one shot, without manual reloading, by a single function of the trigger, as well as destructive devices. (Title 18, United States Code, Sections 924(c)(1)(A), 924 (c)(1)(B)(ii), 3238 and 2.) COUNT FOUR (Conspiracy to Possess Machineguns and Destructive Devices) The Grand Jury further charges: 28.     Paragraphs 1 through 17 of this Superseding Indictment are realleged and incorporated by reference as though fully set forth herein. 29.     From at least in or about 1999, up to and including in or about 2019, in an offense begun and committed out of the jurisdiction of any particular State or district of the United States, including in Venezuela, Colombia, Mexico, and elsewhere, HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and others known and unknown, at least one of whom will be first brought to and arrested in the Southern District of New York, intentionally and knowingly combined, conspired, confederated, and agreed together and with each other to violate Title 18, United States Code, Section 924(c). 30.     It was a part and an object of the conspiracy that HUGO ARMANDO CARVAJAL BARRIOS, a/k/a ‘El Pollo,’ the defendant, and others known and unknown, during and in relation to a drug trafficking crime for which they may be prosecuted in a court of the United States, to wit, the controlled substance offenses charged in Counts One and Two of this Superseding Indictment, knowingly use and carry firearms, and, in furtherance of such drug trafficking crime, knowingly possess firearms, including machineguns that were capable of automatically shooting more than one shot, without manual reloading, by a single function of the trigger, as well as destructive devices, in violation of Title 18, United States Code, Sections 924(c)(l)(A)(i) and 924(c)(l)(B)(ii). (Title 18, United States Code, Sections 924(o) and 3238.) ...”. 12 .     In respect of count 1, there was a mandatory minimum sentence of twenty years’ imprisonment and a maximum sentence of life imprisonment under Sections 21 of the United States Code (“USC”) 960a and 21 USC 841(b)(1)(A). In respect of count 2, there was a mandatory minimum sentence of ten years’ imprisonment and a maximum sentence of life imprisonment as established under Section 21 USC 841(b)(1)(A). In respect of count 3, there was a mandatory minimum sentence of thirty years’ imprisonment which could not run concurrently with any other term of imprisonment, and a maximum sentence of life imprisonment, under Section 18 USC 924(c)(1)(B)(ii). In respect of count 4, there was no mandatory minimum and the maximum sentence was life imprisonment, according to Section 18 USC 924(o). Under the federal system, life imprisonment did not include the possibility of parole following the Sentencing Reform Act of 1984. 13 .     The applicable United States statute of limitations did not bar the applicant’s prosecution for the offences for which his extradition was sought. No information was submitted regarding the prison in which the applicant was likely to be detained if convicted. There was no record of his previous convictions. 14 .     According to the affidavit from the assistant United States attorney for the Southern District of New York (M.L.) dated 29 April 2019, the following elements would need to be proved at trial in order for the applicant to be convicted of each of the counts on the indictment: “Count One: (i) [the applicant] came to an agreement with one or more persons to accomplish a common and unlawful plan, namely the distribution of narcotics; (ii) [the applicant] did so knowing or intending to provide something of pecuniary value, directly or indirectly, to the FARC; (iii) the FARC engages in terrorist activity or terrorism; and (iv) [the applicant] knew that the FARC engages in terrorism or terrorist activity; Count Two: [the applicant] came to an agreement with one or more persons to accomplish a common and unlawful plan, namely the narcotics offenses referenced above, and that [the applicant] knowingly and wilfully became a member of such conspiracy; Count Three: (i) [the applicant] committed the controlled substance offenses charged in Count One or in Count Two; (ii) [the applicant] knowingly used or carried a firearm during and in relation to the commission of, of knowingly possessed a firearm in furtherance of, the crimes charged in Count One or in Count Two, or aided and abetted the use and carrying of a firearm; and (iii) the firearm was a machine gun or destructive device. Count Four: (i) [the applicant] came to an agreement with one or more persons to accomplish a common and unlawful plan, namely the firearms offense referenced above; and (ii) that [the applicant] knowingly and wilfully became a member of such conspiracy.” 15 .     On 14 June 2019 the Council of Ministers approved the initiation of the extradition proceedings. The applicant lodged an administrative judicial appeal, which was dismissed by the Supreme Court’s Administrative Chamber on 2 July 2020. 16.     On 21 June 2019 central investigating judge no. 6 referred the extradition proceedings to the Criminal Chamber (Third Section) of the Audiencia Nacional . 17.     The applicant opposed his extradition on 12 September 2019, on the grounds that the extradition was based on purely political reasons and the United States authorities only intended to obtain information about President N. Maduro from him, as he had been Head of the Military Intelligence Service in Venezuela. The applicant firstly submitted that the “statement of the facts” in the extradition request lacked specificity, contrary to the requirements of the bilateral treaty and the Spanish Law on Passive Extradition. He claimed that the indictment referred to only very generic conduct and did not mention any specific dates or places in relation to the commission of the offences. Secondly, he complained about the fact that the indictment did not refer to the specific provisions of the United States Code which established the offences and the respective possible sentences (especially the minimum applicable sentences), contrary to the bilateral treaty and the Spanish Law on Passive Extradition. Thirdly, he complained that there was no official translation of the extradition documents, and that was contrary to the treaty and the Spanish Law on Extradition. Fourthly, he argued that the indictment did not contain a clear statement about the offences not being time-barred under the law of the United States, and submitted that some of the offences or parts of them would already have become time-barred because no specific dates had been mentioned. Fifthly, he complained that the accusations were ill-founded because the alleged witness evidence was completely imprecise (such as the sworn statement by the DEA agent) and the extradition order and arrest warrant had been issued only three days after his detention. Sixthly, he argued that the District Court for the Southern District of New York was not competent to investigate these crimes. Moreover, the applicant submitted that he was being accused of military crimes, which would impede his extradition under the bilateral treaty and the Spanish Law on Extradition. He also claimed that the extradition request was purely politically motivated. Lastly, the applicant contended that there were no assurances that a sentence of life imprisonment without parole and without any review mechanism would not be imposed on him, which would violate Article 3 of the Convention. He mentioned that neither the prosecutor nor the judge in the United States would be bound by any diplomatic assurances, and that even in the event that a plea deal was signed with the prosecutor’s office, there were no assurances that the district court would respect its terms. The prosecutor requested that the extradition be granted, in the light of the fact that the request complied with the requirements of the bilateral extradition treaty between Spain and the United States. 18.     On 17 September 2019 the Criminal Chamber of the Audiencia Nacional initially decided to reject the request by the United States for the applicant’s extradition. The Audiencia Nacional addressed each of the applicant’s complaints and concluded that the extradition request was formally in accordance with the bilateral treaty. Notwithstanding the above, the Audiencia Nacional considered that the extradition request referred to a very general and imprecise statement of facts which did not specifically describe the applicant’s alleged criminal conduct, or the time or place of that conduct. According to the Audiencia Nacional , the DEA agent’s sworn statement could not be considered a valid “statement of facts” to be detailed in the extradition request to justify the applicant’s indictment for the relevant offences. Moreover, the court considered that the facts imputed to the applicant were of a “strictly military” nature, which implied that the extradition request had to be rejected under the extradition treaty between Spain and the United States. Lastly, the Audiencia Nacional concluded that the request was politically motivated, which was linked to the fact that the applicant had been Head of the Military Intelligence Service under the presidencies of H. Chávez and N. Maduro in Venezuela, and that also implied that the request should be rejected under the bilateral treaty. There was no mention of the possibility of the applicant being sentenced to life imprisonment without parole. As a result of that decision, the applicant was released from detention. 19.     The public prosecutor’s office lodged an appeal against the above decision and requested that the extradition request be granted. On 8   November 2019 the Plenary of the Criminal Chamber of the Audiencia Nacional allowed the appeal by the public prosecutor’s office and granted the extradition request. It considered that the statement of facts of the extradition request and the accompanying documents were specific enough to be able to deduce that the applicant had participated in the commission of the alleged offences, which had taken place over a lengthy period of twenty years. The Plenary considered that the applicant had held military office when the offences had been committed, but this did not mean that he had committed the offences in his military capacity, and therefore in accordance with the bilateral treaty, he could be extradited for the alleged commission of the offences. As regards the possibility of the extradition request being politically motivated, the domestic court considered that this was for the Spanish government to decide (given that the Council of Ministers could, at its discretion, prevent the extradition at its final stage, after the judicial procedure had finished). That decision made no mention of the possibility of the applicant being sentenced to life imprisonment without parole. 20.     On 4 December 2019 the applicant lodged an application to annul the decision of the Plenary on the grounds that his extradition had not been decided with sufficient procedural guarantees or by an independent and impartial tribunal. He argued that at least some members of the Plenary had been pressured to grant the extradition request in respect of him for political reasons. He also insisted that the statement of facts contained in the extradition request lacked sufficient precision to sustain the allegation that he had committed the offences with which he was being charged, which had violated his right to fair proceedings and the principle of nulla poena sine lege . He also considered that his right to a reasoned decision which was not arbitrary had been violated, because there were plenty of contradictions and inconsistencies as regards the offences being considered non-military in nature. In that application, the applicant also raised the concern that there was a risk that he would be sentenced to life imprisonment without parole, and argued that this could violate his right not to be subjected to inhuman or degrading treatment. The applicant explained that he had already raised that issue at the extradition hearing on 13 September 2019, as a subsidiary reason to oppose his extradition, and that that point had not been addressed by the Criminal Chamber of the Audiencia Nacional or the Plenary. 21.     On 24 January 2020 the application was dismissed by the Plenary of the Criminal Chamber of the Audiencia Nacional . However, the Plenary decided that a complementary decision was necessary in order to address the issue raised concerning the risk of the applicant being sentenced to life imprisonment without parole, which had not been addressed initially, given that the extradition had been rejected by the Criminal Chamber on other grounds. 22 .     Hence, in a separate decision of 24 January 2020, the Plenary stated: “It is agreed that the decision of the Plenary of the Criminal Chamber of the Audiencia Nacional of 8 November 2019 should be supplemented, in the sense that a condition to the surrender of [the applicant] to the United States judicial authorities should be added, [a condition stipulating] that within 45 days that State must provide assurances that its system incorporates the possibility of review of a sentence of life imprisonment or the application of measures of clemency of which the person [in question] may avail himself with a view to the sentence or measure not being executed.” 23 .     The parties were not notified of that complementary decision until 22   October 2021 (see paragraphs 30 ˗ 32 below). On that date the applicant’s extradition was suspended until the necessary assurances were provided by the United States authorities and assessed by the domestic courts. 24.     On 15 July 2020 the applicant lodged the first amparo appeal against the dismissal of his annulment application with the Constitutional Court, an appeal in which he again raised the fact that the domestic courts had not responded to his allegation that there was a risk that he would be subjected to inhuman or degrading treatment by being sentenced to life imprisonment without parole (despite the fact that the Plenary of the Criminal Chamber of the Audiencia Nacional had specifically stated that a complementary decision on that matter was required). The applicant had already referred to the relevant case-law of the European Court of Human Rights concerning life imprisonment without parole in the context of the extradition proceedings. On 23 November 2020 the amparo appeal was declared inadmissible for lack of constitutional relevance. 25.     Following the judicial proceedings on extradition, on 3 March 2020 the Council of Ministers confirmed the applicant’s extradition to the United States. The execution of the decision was suspended because in the meantime the applicant had lodged a request for international protection, which was still pending (see paragraphs 39 ˗ 45 below). 26.     The applicant lodged an appeal against the Council of Ministers’ decision, claiming, among other things, that the issue of whether the extradition request in respect of him was merely politically motivated had not been addressed. The appeal was dismissed by the Supreme Court on 22   November 2021. 27.     The applicant lodged a second amparo appeal against the decision to dismiss his appeal against the Council of Ministers’ decision, complaining of a violation of his right to fair proceedings – in particular, his right to have a justified and well-reasoned response to his allegations – and his right not to be subjected to inhuman or degrading treatment, taken together with his right to fair proceedings; he argued that the decision dismissing his complaint concerning this matter had not been reasoned. 28 .     The applicant, who had been free since his release from detention in September 2019, was arrested again at his home on 9 September 2021. The authorities had not known of his whereabouts during the period when he had been at liberty. From the moment of his arrest on 9 September 2021 he was detained pending his extradition, and was still in prison according to the latest information available to the Court. 29 .     On 20 October 2021 the Criminal Chamber of the Audiencia Nacional issued a notice for Interpol to proceed to surrender the applicant to the United States authorities. Assurances provided by the United States authorities 30 .     On 24 January 2020 the Plenary of the Criminal Chamber of the Audiencia Nacional decided to complement the decision concerning the applicant’s extradition with an assessment of the risk of him being subjected to inhuman or degrading treatment. It did so by a decision of the same date (24 January 2020), which established that the extradition was conditional upon the receipt of sufficient assurances from the United States authorities that there were mechanisms in place for reviewing a life sentence in the event that this was imposed on the applicant (see paragraph 22 above). The assurances were to be received from the United States authorities within forty-five days. However, owing to an alleged mistake, the Criminal Chamber of the Audiencia Nacional was not informed of that decision until 22 October 2021. At that point the domestic court also ordered the suspension of the extradition until the assurances had been received and assessed. 31.     On 29 October 2021 the Plenary of the Criminal Chamber of the Audiencia Nacional realised that that mistake meant that the parties did not know about the decision of 24 January 2020, and decided that they should be notified of it immediately. 32 .     As a consequence of the above-mentioned mistake, the Criminal Chamber of the Audiencia Nacional did not send the request for diplomatic assurances to the United States until 11 November 2021, twenty-two months after it had decided to make the applicant’s extradition conditional upon those assurances. 33 .     The United States embassy sent Note Verbale no. 825 on 17   November 2021. They submitted that the following would apply, should the applicant be convicted of any of the counts carrying the potential penalty of life imprisonment for which his extradition was sought: “he would not be subject to an unalterable sentence of life imprisonment because, if a life sentence was imposed, the United States framework in place allows that he may seek review of his sentence on appeal and also seek relief from his sentence in the form of a petition for a pardon or commutation to a lesser sentence. If a pardon or commutation was granted pursuant to applicable United States procedures, that would result in a reduction of the sentence.” 34.     In the light of the content of the note verbale , the applicant argued that the assurances were not sufficient and asked the Criminal Chamber of the Audiencia Nacional not to grant his extradition to the United States. The public prosecutor’s office submitted a report in which it claimed that the assurances were sufficient and the applicant should be extradited. 35.     In a decision of 26 November 2021, the Criminal Chamber of the Audiencia Nacional considered that the diplomatic assurances provided by the United States embassy were sufficient, for the purposes of protection under Article 3 of the Convention, to confirm the applicant’s extradition. It stated that, given that the applicant would be able to lodge an appeal against a conviction should he be sentenced to life imprisonment, and that he would be able to obtain a reduction of his sentence through a pardon or commutation, the potential penalty should not be considered irreducible under the applicable legal standards (including those of the European Court of Human Rights). 36.     The applicant lodged a súplica appeal against that decision, claiming that the United States had not provided sufficient assurances. On 3 December 2021 that appeal was dismissed by the Criminal Chamber of the Audiencia Nacional , which reiterated the same grounds given in its previous decision. 37.     On 13 December 2021 the applicant appealed against the decision of 3 December 2021 by lodging a third amparo appeal with the Constitutional Court. He claimed that his right to fair proceedings and his right not to be subjected to inhuman or degrading treatment had been violated, as the United States authorities had not provided any assurances concerning the mechanisms for reviewing the potential sentence of life imprisonment which he could receive, and that notwithstanding that, the Spanish courts had granted the request for his extradition. He argued that there was no such review mechanism under United States law, and that a presidential pardon was a purely discretionary and extraordinary measure which, like the opportunity to lodge an appeal against a sentence of life imprisonment, did not fulfil the requirements of Article 3 of the Convention. The applicant also claimed that the possibility of having his sentence reduced on the basis of his cooperation with the judicial authorities, in particular with regard to President N. Maduro of Venezuela, would not satisfy the requirement of revision based on his conduct, and would instead be another form of inhuman or degrading treatment. He alleged that the assurances provided by the United States embassy were insufficient in the light of Trabelsi v. Belgium (no. 140/10, ECHR 2014 (extracts)) and also unreliable with regard to Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, ECHR 2012 (extracts)). He asked for the execution of the extradition to be suspended while the amparo appeal was pending. 38.     On 28 February 2022 the Constitutional Court dismissed the applicant’s amparo appeal against the decision of the Criminal Chamber of the Audiencia Nacional to confirm the extradition order in the light of the sufficiency of the diplomatic assurances. According to the Constitutional Court, there was no appearance of a violation of any fundamental right protected by the Spanish Constitution, given that the judicial decisions which had been appealed against followed the constitutional case-law concerning the extradition of persons accused of offences punishable by life imprisonment. That was the final domestic decision concerning the extradition. International protection proceedings 39 .     The applicant lodged an asylum request or, alternatively, a subsidiary protection request after his first period of detention, on 30 April 2019. He alleged that following his public criticism of the regime presided over by President N. Maduro and his public support for Mr. J. Guaidó, he had been subjected to political persecution in Venezuela. He claimed that he was being falsely accused of a number of criminal offences because of his opposition to President N. Maduro. He also claimed that his home had been broken into and that some of the people who worked for him had been arrested. 40.     In another request made on 13 June 2019, the applicant requested international protection against the United States, a country where he was also being persecuted for political reasons because of his long-standing service in Venezuelan military intelligence. 41 .     The applicant’s extradition was suspended on 14 September 2021, pending a decision on his asylum request. 42.     The asylum request was dismissed on 23 September 2019. The administrative authorities considered that neither the allegations nor the documents submitted by the applicant proved the existence of any persecution or a well-founded fear of such persecution. The applicant’s political opposition to the Venezuelan regime had been described vaguely, and no proof of any measures taken against him had been submitted. They considered it relevant that the applicant had requested international protection only after he had been arrested for the purposes of extradition, and not as soon as he had arrived in Spain. 43.     The applicant, whose whereabouts were unknown from September 2019 until he was arrested again on 9 September 2021 (see paragraph 28 above), claimed that he had not been notified of the above-mentioned dismissal of his asylum request until 15 September 2021. He lodged an appeal the next day, and the Ministry of Internal Affairs confirmed the dismissal on 18 October 2021. 44.     The suspension of the extradition was lifted on 20 October 2021, when the applicant was made available to Interpol so that it could proceed to surrender him (see paragraph 29 above). 45 .     On 21 October 2021 the applicant lodged a judicial appeal against the administrative decision not to grant him asylum, also requesting an interim measure to suspend the extradition in the meantime. The appeal was declared inadmissible on 19 January 2022. On 22 October 2021 the applicant’s extradition was suspended by the Criminal Chamber of the Audiencia Nacional (see paragraph 23 above). 46.     The applicant lodged another international protection request on 30   December 2021, on the grounds that new events had occurred since his first request. In particular, he alleged that some of his family members and relatives had been detained and charged with criminal offences, and other events had taken place concerning his assets in Venezuela. The applicant also insisted that he would face risks if extradited to the United States. 47.     The Spanish Ministry of Internal Affairs dismissed the applicant’s request on 20 March 2022. It stated that the new facts which constituted the grounds for his second asylum request were not actually new, or would already have been in existence when he had first requested asylum. It also noted that the applicant had requested asylum on the basis of threats which had allegedly been made against him in Venezuela, but the extradition request which had been granted involved his extradition to the United States. The ministry observed that the applicant had never requested asylum in Trinidad and Tobago or the Dominican Republic, and that despite the fact that he had arrived in Spain on 18 March 2019, allegedly fleeing persecution from the Venezuelan authorities, he had only requested asylum after being arrested in the country more than a month later. In the view of the ministry, this was inconsistent with his allegations that he feared persecution. 48.     On 13 January 2022 a procedure for an administrative sanction was initiated against the applicant, who was already detained, on the basis that he did not have any legal grounds to reside in Spain. T