First UK/Mexico Extradition ordered for former first lady of Mexico Ms Karime Tubilla

On 7th February 2022, Senior District Judge Goldspring gave the green light for the case of Ms. Karime Tubilla to be sent to the Secretary of State (‘SoS’) for a decision as to whether she should be extradited to Mexico.

The extradition request for Ms. Tubilla is the first such request by Mexico to the United Kingdom.

Who is Ms Tubilla and why is her extradition requested?

Ms. Tubilla, lead a life of glamour and political affiliation in Mexico, she is the wife to former governor Mr. Javier Duarte. Mr Javier Duarte is currently serving a nine-year prison sentence in Mexico on charges of criminal association and money laundering in the Gulf coast region of Veracruz, where he acquired billions from the state of Mexico whilst in office between 2010 – 2016.

Ms. Tubilla’s extradition is eagerly wanted by the Mexican authorities on charges of conspiracy to defraud. She was arrested on 29 October 2019 and is alleged to have taken £4million from the Integrated Family Development System (‘DIF’).

DIF is a Mexican state-level and state-funded charitable foundation which provides humanitarian aid to poor and vulnerable members of the Veracruz community. Ms Tubilla was the Chair of DIF during 2011 and 2012.

The modus operandi to the Fraud was the awarding of fictitious contracts to shell companies, by sidestepping the usual bidding process, and directing payment to those companies for non-existent goods.

The large sum of money deprived from those most in need is a damning indictment and a prime motivational factor to the extradition request. Her alleged offending comes with a potential sentence of five to twelve years imprisonment

Legal Challenge under Prima Facie Case Section 84 Extradition Act 2003

The UK and Mexico ratified a ‘Mutual Surrender of Fugitive Criminals’ treaty in 1889, and under Part 2 of the Extradition Act 2003 (‘EA 2003’), as a Category 2 State, Mexico is required by the court to provide prima facie evidence of the offence for which Ms. Tubilla’s extradition is sought.

The issues raised in opposition to extradition hinged primarily on challenging that there was no prima facie case and that both the risk of maltreatment in the Mexican prison and the prison conditions there are incompatible with her art 3 ECHR.

In judgment, it is clear that Senior District Judge Goldspring accepted that the criteria of establishing a prima facie case against Ms Tubila was meritorious meeting the criteria of Section 84 of the EA 2003 which provides: If the judge is required to proceed under this section, he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.

In applying section 84(1), questions of admissibility are governed by English law and will not be determined by the law of the requesting state: Shankaran v India [2014] EWHC 957 (Admin).

The key determinative factor is whether the requesting state has proved, based on all admissible evidence whether there is sufficient evidence to substantiate the conduct alleged.

Senior District Judge Goldspring in conducting this analysis must apply the test referred to at the end of the celebrated passage in Lord Lane’s judgment in R v Galbraith at 1042, in deciding whether there is a case to answer, by considering all the admissible evidence before him, including evidence called on behalf of the requested person.

The role of an extradition court in considering this question is to consider whether a tribunal of fact, properly directed could reasonably and properly convict based on the evidence. The extradition court is not required itself to be sure of guilt to send the case to the Home Secretary.

It was argued by the defence that the IJA cannot rely on the evidence of a key witness named Mr. Nemi Dib to establish a Prima Facie case because the positively incriminating statements he provided to the prosecution, dated the 17th April 2018, 20th April 2018 and 27th September 2018 were given only because of coercion and torture.

The parties agreed that if Senior District Judge Goldspring did find the statements were, on the balance of probabilities, obtained by torture they should be excluded and the court would need to look elsewhere to decide if sufficient admissible evidence is present to establish a Prima Facie case.

The Mexican Government, in counter argument focused on all potential scenarios including, the inclusion/exclusion of Mr Dibs evidence even if Senior District Judge Goldspring were to exclude the evidence of Dib the alternative evidential routes to establishing Prima facie case, including the direct evidence of the RP’s involvement from the statements of other witnesses, evidencing the underlying Fraud would mean a prima facie case existed.

Despite the live evidence of Mr. Nemi Dib via CVP, it proved elusive, undeniably evasive and lacking in detail. Therefore, Senior District Judge Goldspring was not convinced that on the balance of probabilities he provided witness statements through coercion and torture.  In analysing the evidence from a wholistic prism he also found that the evidence of the other three witnesses were consistent and compelling because they corroborated each other.

In those circumstances in delivering judgment, it was found that there can be no sensible argument that the Government of Mexico had failed to establish a prima facie case. Therefore, he did find there was a prima facie case to answer. 

Legal Challenge under Article 3 European Convention of Human Rights

The second primary ground under which extradition was opposed centred on Ms Tubila being subject to maltreatment in the Mexican prison regime and the poor prison conditions being burdensome to her Art 3 convention rights.

At the hearing, the Mexican Government's representative pressed on the safeguard in assurances from Mexican authorities that were Ms Tubilla’s to be extradited, she would not be subject to the poor conditions of Mexican prisons.

The test to be applied in Article 3 cases is whether there are “strong grounds” for believing there would be a “real risk” of a breach of article 3 the RP were to be extradited: as per R (Ullah) v Special Adjudicator [2004] UKHL.

In this lead judgment frequented successful arguments under Art 3 ECHR are often found if the space factor of prison was coupled with other aspects of inappropriate physical conditions of detention related to, in a particular context, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements.

When inmates appeared to have at their disposal personal space measuring between 3 and 4 sq. m the Court will usually examine the inadequacy of other aspects of physical conditions of detention when making an assessment under Article 3.

The general principles were recently restated by the Grand Chamber in Mursic v Croatia (2016) App 7334/13, October 20 at §§96-141:

The Court in the above case confirmed the standard predominant in its case-law of 3 sq. m of floor surface per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the Convention.

When the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space.

In Ms Tubila’s case It has been recognised that assurances are required and to that end the authorities suggest that where that assurance follows the criteria set out in Othman (Abu Qatada) v UK (2012) 55 EHRR  1 then the assurances were acceptable.

“In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances. More usually, the Court will assess first, the quality of assurances given and, second, whether, considering the receiving State’s practices they can be relied upon”.

The court’s findings in judgment are that the assurances given by the Government of Mexico are satisfactory and that her human rights would be protected in Mexico. Ms Tubila has Appealed the decision to the High Court. The developments of this case is of intrigue to ascertain if there will be any ground of success in this extradition request.

Maeve Thornton joined 5SAH in March 2022 as a third six pupil. She is currently being supervised by Ben Keith. She prosecutes and defends in a wide range of criminal law cases in the Magistrates, Youth and Crown Court. She has a growing practice in extradition law.