Photo by Sebastian Lengauer on Unsplash
14th April 2018
On the morning of Sunday 25 March, I was very surprised to learn that Carles Puigdemont had been arrested by German police. It seemed to me that the recently dismissed president of the Catalonian regional government (or Generalitat) had failed to assess the risk he would run by choosing to travel through none other than Germany in his second escape from Spanish justice, this time fleeing from Finland after learning that judge Llarena had issued a European arrest warrant. Indeed, the legal framework relevant to the case is very similar in both countries, especially at the constitutional level and, at least in principle, also in terms of criminal law.
The German Constitution under no circumstances allows states in the Federation to commit acts of sedition (article 79.3). The territorial unity of the country is inviolable. That is why our Constitutional Court dismissed a constitutional complaint submitted by the Bavaria Party (nationalists with no parliamentary seats) to allow the celebration of a territorial referendum on that Land’s separation from the Federal Republic of Germany. The same would happen in the state of Saxony-Anhalt (in the East of the country) if the far-right europhobes of AfD, currently the second largest political force in the regional parliament (after the CDU), won the next elections–which is entirely possible–and embraced secession as their goal. And recently the Federal Intelligence Office have placed under observation the so-called Reich Citizens, a pro-Nazi movement of fanatical, inherently violent activists who reject the legitimacy of the modern German state.
All of this is perfectly in tune with the decisions of the Spanish Constitutional Court regarding the illegality of the two so-called ‘disconnection laws’ (passed in September 2017) and of the referendum of 1 October. Also incompatible with the rule of law was the Unilateral Declaration of Independence of Catalonia read by Puigdemont before the Catalonian Parliament on 10 October 2017 and signed by the secessionists of Junts pel Sí and the CUP. This was a bona fide coup against the democratic legal framework established in the Spanish Constitution and in Catalonia’s own Statute of Autonomy. Something like the secessionist ‘procés’ would be absolutely intolerable in Germany and would force the Federal Government to intervene per Article 37 of the Constitution. In fact, it was on this article that Article 155 of the Spanish Constitution was modelled. In this regard, it is hard to imagine greater consistency between the two countries. Yet the Regional Court of Schleswig-Holstein (OLG in the German acronym) tasked with processing judge Llarena’s warrant seems to have overlooked this.
In terms of criminal law, the analogy with the crime of rebellion with which Spanish courts charge Puigdemont (and a number of other imprisoned or escaped leaders) also seems solid. In Germany we have the crime of high treason against the state (article 81 of the German Criminal Code), which is punishable by long-term imprisonment. So are acts against the country’s national unity. Yet these charges are defined as requiring a degree of violence that considerably weaks the state. What this means is ambiguous, as the judicial authorities examining the case may interpret it using whatever criteria they see fit. One could even draw the absurd conclusion that if the state does not actually succumb to an attack–as in this case–then whatever violence was employed becomes automatically irrelevant. And this is indeed what has happened: the Schleswig-Holstein state prosecutor accepted the equivalence between the Spanish crime of rebellion and Germany’s high treason, but the OLG has rejected it, and it has done so in unnecessary haste.
Yet I have seen acts of violence throughout the ‘procés’, and continue to do so. Everybody knows that the modern-day definition of violence is different from that of the past and includes a range of subtle actions which are the order of the day in Catalonia (public shaming, threats, moral harassment and defamation of those who do not agree–and not only online). Had Puigdemont been arrested in a different Land, further South, the corresponding OLG might have made a different decision. In Germany, extradition proceedings are handled at the regional level even if the request is issued by a higher court in the demanding country, as is now the case.
As for the other charge included in the European arrest warrant, embezzlement of public funds, the court could interpret this too differently from state prosecutors, especially since German law is ambiguous on this point. Even the greatest illegal financing scandal ever to involve a German political party, implicating the CDU and then chancellor Kohl, has gone unpunished. It is worth noting how differently courts in Spain have treated the country’s many cases of corruption. After all we have seen, I dare not make predictions on whether the request to hand over Puigdemont for this other crime will be granted. I know the mentality and temperament of the people of Schleswig-Holstein (having lived and worked in the capital, Kiel, for 20 years): the average citizen tends to look to the Baltic Sea (East) and the North Sea (West), and deems whatever happens elsewhere in the world of little interest. I cannot be sure that the region’s judges do not share these peculiar idiosyncrasies.
The OLG decision must surely have hit Spanish constitutionalist circles like a ton of bricks. Yet it has been well received in Germany. For the Minister of Justice, Katarina Barley, to publicly express her satisfaction at the release (on parole) of Puigdemont, and for her to hint at the possibility that he may ultimately not be handed over and thus come to enjoy the advantages of living in a free country like Germany, is unacceptable. It is an instance of political interference in judicial matters and thus violates the fundamental political principle of separation of powers under the rule of law. It is also nonsense to suggest that Spain might not be a free country. The same warning goes for those third-rate MPs whose similar declarations got them a headline and their picture in the press and on TV. The spokesperson for the Federal Government has disavowed the minister’s words, and I believe the latter has apologized to her Spanish counterpart, but as a europeanist German citizen the bitter aftertaste remains. If politicians undermine the principle underlying European arrest warrants, which is mutual trust between national judicial authorities, the Schengen Agreement will lose its raison d’être as one of the pillars of European freedoms.
In a sense, the behavior of the minister and of some MPs is in line with a view of the situation in Catalonia shared by many Germans. Our media, with only a few exceptions, have been spreading the secessionist narrative: that Spain does not love Catalonians, that they are fiscally exploited, that they are exposed to politicized courts dependent on the Government, that dialogue is refused, and many other grievances. A great many Germans, including distinguished intellectuals, believe it all. Almost all German press, radio and TV correspondents in Spain have bought into it as well, falling hook, line and sinker for every one of its lies and manipulations of history. Clearly, they do not read the pertinent Spanish press. One has to admit that secessionist propaganda has been and remains extremely effective. And the Government of Spain should be asked why it will not engage determinedly, both abroad and inside Catalonia itself, in a rigorously justified communication effort to counteract such nefarious propaganda.
Juergen B. Donges is an emeritus professor of economics at the University of Cologne (Germany)