10 Apr 2018
The European arrest warrant issued by the Spanish Supreme Court requesting the handing over of Mr Puigdemont under charges of rebellion and embezzlement is a case in which the automatic application of the rules offers no clear solutions. It must thus be solved on the basis of the principle of mutual recognition constitutionalised in Article 82 of the Treaty on the Functioning of the European Union.
It has taken the High Court of the state of Schleswig-Holstein little more than 48 hours to decide against handing him over for rebellion. The rationale for the decision is that the events described in the arrest warrant do not match those typically established for the crime of high treason in the German Criminal Code. The discussion has focused on the presence of violence, which is part of the definition for both rebellion in the Spanish Criminal Code and high treason in the German one. For the latter, the violence must be significant enough to break the will of a constitutional body.
It is worth paying attention to the highly evaluative nature of this assertion when applied by a judge who has had almost no contact with the facts, and important to bear in mind that it may prevent the judge who requested his help from continuing his or her work, blocking any possibility of investigating or judging the facts.
The purpose of mutual recognition is to speed up the arrest and handing over of people between the judicial authorities of different legal systems. In order for the free circulation of court judgements to work properly, authorities assume that decisions issued by the authorities of other systems shall be treated on par with their own. This is why only judges are involved in mutual recognition, the political cooperation of classic extradition procedures having been eliminated.
The second feature is respect for the legal systems involved. Judges in this system of cooperation know that there are different rules, both material and procedural. They are willing to help each other despite knowing there may be important differences between their systems.
The third hallmark is automaticity. As we respect and admit the autonomy of every legal system and recognize other systems as peers, we give each other our support without erecting barriers. Mutual recognition has done away with the arguments states could have to oppose cooperation.
The fourth characteristic is the division of labour. This is key to understanding why this quick and effective system neglects neither rights not guarantees, which all judges have to make sure to comply with to safeguard their mutual confidence.
The idea that European judges may or should find fault with each others’ work—to say nothing of the notion of their dealing each other blows—runs totally counter to the foundations and spirit of mutual recognition. The last thing a judge whose aid is requested should do is act as a censor to his or her counterpart or to the latter’s legal system.
It is not that judges in this mutual recognition system can cooperate, but rather that they have the obligation to do so. Cooperation is the norm, refusal the exception.
How to verify whether the acts for which cooperation is requested are a criminal offence in the legal system of the cooperating party is far from clear. In double criminality, the cooperating judge becomes in fact a first judge of the case, who examines it according to his or her legal system.
There are almost no cases of perfect and automatic syllogism. The crime of high treason in the German Criminal Code, which in the abstract is essentially identical to its Spanish equivalent, depends in practice on a very complex assessment. Discussions and judicial interpretations should be set aside with regards to the concept of dual criminality as contemplated in the cooperation system, which must be assessed in a flexible way. To go beyond this with regards to the analysis of the facts implies an interpretation which violates Article 2.1.4 of the European framework decision, because it runs counter to the foundations of mutual recognition.
I am among those who believe that the conduct of Puigdemont and the rest of the accused is not a crime of rebellion. Yet that is a question which, as explained above, must be settled by Spanish judges—not by others thousands of kilometres away from the facts.