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13th April 2018
Contrary to what secessionists have celebrated, and many constitutionalists have assumed, the decision from the Schleswig-Holstein court doesn’t undermine judge Llarena’s proceedings nor casts any doubts on Spanish democracy.
We go from one shock to another with the Catalan issue. The last episode has been a ruling from the regional court of Schleswig-Holstein dismissing the surrender of Mr. Puigdemont for the crime of rebellion, requested by the Spanish Supreme Court, and setting him free on bail until a decision has been reached regarding the crime of embezzlement of public funds. The news was received with astonishment and dismay by a large part of the Spanish public opinion and celebrated with predictable glee in the secessionist camp.
As usual, newspapers and social networks have been filled with interpretations and speculation in both directions. The decision gives ammunition to the secessionist propaganda machine, that will continue unabated with its slogans about judicial persecution, political prisoners and the low quality of Spanish democracy. Undermining the prestige of our political and judicial institutions in the international arena is essential for the secessionist movement and they are not going to give up on that effort. But many commentators unconnected with secessionism have received the decision from the German court as a victory for secessionists and a severe defeat for the Government or the Spanish State, because some people have trouble telling one from the other. The setback has even been compared with [the disaster of] 1898, which is a good summary of the desolation that the news produced during the first hours.
As fine an analyst as José María Ruiz Soroa described what happened as a “loud and swift slap” to the Supreme Court, with “politically terrifying consequences”. The German court ruling, according to some, rejects that there has been violence in the procés and, consequently, there’s no room to carry out the accusation of rebellion against the indicted secessionists. Hence, they conclude that the cautionary measures adopted by judge Llarena are not justified and even less so is, as a political scientist wrote, “the intolerable meddling by the judicial power” in the activity of the [regional] Parliament. The most important lesson, anyway, would be political. Many have rushed to point out that the Schleswig-Holstein ruling lays bare the failure of the “judicial approach”, and thus it is imperative to explore the negotiation approach to find a political solution to the Catalan conflict. German judges have shown is the way to the negotiating table!
In reality nothing of the sort follows from the German judges’ ruling, if we examine it with the sobriety demanded by a close attention to facts. Notwithstanding the freedom of opinions, they should at least bear some resemblance with the facts at hand. In view of those facts, there’s no undermining of judge Llarena’s proceedings nor is Spanish democracy placed under suspicion. Overacting usually reveals more about the insecurities, prejudices and fears of the interpreter than about the topic itself.
We have taken a crash course on the European arrest warrant and the Framework Decision that regulates it. In their ruling, the German judges interpret that embezzlement of public funds can be can be qualified as a crime of corruption, which is included in the list of thirty two offenses which the Framework Decision (article 2.2) excludes from the requirement of double criminality, but they request additional information from Spanish authorities. For the rest of the crimes, on the other hand, the principle of double criminality stands and the court has to determine if the actions described in the warrant constitute a crime in the executing country.
That is how the German court has acted. They have examined if the actions attributed to Mr. Puigdemont as a charge of rebellion are punishable in Germany, specifically if they fall under the crime of high treason (Hochverrat). They preliminarily reject extradition because the double criminality requirement is not met. The decision can be criticized and the prosecutor himself had a different view. But the resolution bears no argument as to whether the actions constitute a crime of rebellion according to the Spanish criminal code nor does it contradict the proceedings of the Supreme court. Their task is a different one: they focus on assessing if the facts described by the Spanish judge would match the German criminal type. They also have not denied that there was violence, in fact they point out that the violence during the October 1st events would be attributable to Mr. Puigdemont; they simply hold that, for the crime of high treason to be applicable, always in accordance with German jurisprudence, there should be a level of violence severe enough to subdue the targeted constitutional entity. This amounts to acknowledging that Spain and Germany have different legal systems. To reach additional conclusions one would have to assume that the one in the Federal Republic is superior to ours, and not simply different. Beyond the bias shown by some, I have seen no arguments on that regard.
Far from giving credence to slogans about political prisoners, the German court explicitly states that there’s no danger of political persecution in Spain. Mr. Puigdemont is accused of specific legal offenses, not persecuted because of his political ideas. There was no need for such statement. Spain is a rule-of-law country and the European arrest warrant itself, as a mechanism for cooperation between national judicial authorities, assumes that the rule of law and the separation of powers are the norm in all EU member countries. The European arrest warrant was introduced in 2002 as a significant advance in the consolidation of the European Union as a true Legal community. Unlike what happened with the traditional extradition procedure, that required the political involvement of the affected countries, the goal was to organize the relationship between national judicial authorities in a new way, on the basis of trust, which is summed up in the principle of mutual recognition.
We shouldn’t downplay the prosecutorial problems that the decision from the Schleswig-Holstein court entails, if confirmed, for the proceeding that judge Llarena is conducting. If he is surrendered, Mr. Puigdemont could not be judged, like the rest of those indicted for the most severe crimes, for rebellion or sedition. To avoid this, the Supreme Court could revoke the European arrest warrantor request a preliminary ruling from the Court of Justice of the European Union. Some legal experts deem there are enough arguments for referring the matter to the Luxembourg Court, but it’s not a path without risks, as pointed out by Daniel Sarmiento.
In the midst of so much speculation about the German decision, the propriety of requesting an ECJ preliminary ruling highlights the most controversial aspect of the Schleswig-Holstein ruling. It’s not about Spanish democracy or our judicial system, that nobody is subjecting to exam, but the working of the European arrest warrant and the way in which the Framework Decision has been adapted to German law. If cooperation between judicial authorities is not based on mutual trust and recognition, the so-called “European space of freedom, justice and security” would be more aspirational than real. That is a good reason for the understandable disillusion that the German decision produced on public opinion. Or maybe it is due to overtly optimistic expectations on the European Union, which remains in many aspects just a club of national states.