The Second Section of the Criminal Chamber of the National Court denied on April 26 the extradition of E.M.M., a Moroccan citizen residing in Arrecife, to whom his country attributed a crime against public health and another of belonging to a criminal organization or criminal group.
Despite the fact that the Public Prosecutor's Office supported the existence of the principle of double incrimination, required in article 2 of the Extradition Convention between Morocco and Spain, the Chamber concluded that "the vagueness of the facts leads to considering that this principle is not met".
The Criminal Chamber of the National Court considered that "the factual account was insufficient", since the Moroccan justice system did not describe what exact acts were imputed to him, "what circumstances, nor in what places, nor in what specific action, he had participated".
The Fourth Section of the Criminal Chamber of the Provincial Court had already denied the extradition of another of the alleged implicated in this case for the same reason. "This position has been maintained in a multitude of subsequent resolutions," the Chamber highlighted.
Background of the case
According to the facts presented by Morocco, in May 2020, an operation "of international drug smuggling" took place on the Oued Flouka Beach, 45 kilometers from the Moroccan city of Tan Tan. Agents of the royal gendarmerie and police went to the place and perceived "the sound of a zodiac".
Within the framework of the operation, the Moroccan security forces identified two soldiers who would have collaborated in the entry of drugs, without specifying quantity or typology, from a surveillance point. In addition, two other men were arrested, within the framework of the operation.
According to the order to which La Voz has had access, in the interrogations of those two people the photograph of E.M.M was shown, "after hearing in the previous investigations that they knew him". Without specifying why and in what context they showed his photograph.
One of the testimonies would have revealed that E.M.M. "participated in the transport and smuggling of cannabis", while the other pointed out that he had already "participated in international drug smuggling".
On May 26, 2020, the King's Prosecutor issued an international arrest warrant against E.M.M. before the Court of First Instance of Tan Tan, in Morocco.
After the communication from Interpol, on November 18, 2022, the accused was arrested and held under provisional detention and Morocco formalized the extradition request. Pending the documentation on the crimes he is accused of, E.M.M. remained in prison until December 27, 2022.
At that time, the Court of Instruction number two of Arrecife sent an order to the Central Court of Instruction number two in which it dismissed the request to hand over E.M.M to the Moroccan authorities until the holding of a trial in Morocco for the alleged crimes committed.
Until then Morocco had not sent the file on the accused to the Spanish authorities. Once the detainee was released, Morocco sent in Arabic and with a translation into Spanish, the documentation about the accusation against E.M.M. In January of this year, the Embassy of the Alawi country in Madrid requested the extradition before the Ministry of Justice.
The Council of Ministers agreed that the case should continue in court. Meanwhile, the accused refused to be extradited and the National Court assumed control of the case, the Public Prosecutor's Office was in favor of extraditing the Moroccan citizen.
Arguments of the defense
Then, the defense of the Moroccan citizen declared before the National Court that the extradition request from the North African country violated the fundamental rights of effective judicial protection, the constitutional right to a process with all the guarantees, the right to freedom and free choice of residence and movement within the national territory.
In addition, the defending lawyer considered that the request to hand over his client lacked "a judicially approved necessity judgment" and that this justification should have been given before assessing the handover of the citizen in court.
The defense alleged that the body that issued the extradition order, the Prosecutor of the Kingdom of Morocco, "lacks independence" and "is not a body alien to political power", which goes against the resolutions of the Court of Justice of the European Union.
The defense also stressed the lack of "a judicial or other type of assessment of the imputation of the facts". "It is not said what merchandise it was, there is no material indication that leads to affirming the existence of the alleged drug, there is no point of origin or destination, no vehicles are located," he added. "There is no jurisdictional control or control by an independent body," but rather "the extradition request is incorporated solely and exclusively at the initiative of the Moroccan gendarmerie".
Likewise, he stressed that "the principle of double incrimination is not satisfied" in the Moroccan request, because "it omits to say what" is the equivalent crime in Spanish legislation. In this line, he demonstrated the roots of his client in Spain, with the documentation in order, work and affective relationship.
With the refusal of the extradition, the precautionary measures adopted against the accused were also without effect. The sentence could be appealed within three days following its notification.
The Chamber dismissed that the extradition request was given by political or military persecution, as well as that there were no religious, political or racial opinions, but rather that a "common crime" was attributed.
