Photo by Clem Onojeghuo on Unsplash

Originally published in Spanish: “Euroorden”. Rafael Arenas García. Crónica Global

19th June 2018

I’m under the impression that there’s some confusion about how the European Arrest Warrant(EAW) and not only among talking heads or pundits but among politicians in office. Some days ago the Spanish Minister of Justice was asked about the EAWs issued by Spanish courts for those involved on the secessionist coup attempt of september/october that still haven’t been handed over to the Spanish authorities. Her answer went along the lines of respect for judicial decisions and of how these were not detrimental to the concept of the EAW. I’m affraid she hasn’t understand anything.

The EAW is designed to be executed. All its regulation is stated under the principle of mutual recognition so every  hand over refused is a failure of the very instrument not merely from the point of view of the State issuing the warrant but from the European point of view because not attending the warrant implies a breach of the rule of mutual recognition and of the principle of reciprocal trust between courts.

This doesn´t mean that an EAW should never be turned down but that every refusal  must be exhaustively documented and the European institutions should probably take notice.

Being overly schematic, there are three reasons an EAW can be turned down: beacuse of formal reasons, because of being affected by the principle of double criminality and not being a crime in the country that should execute the EAW and if the execution were to attack fundamental rights, specifically if the warrant is issued for political reasons.

In the case of the EAW issued by the Spanish Supreme Court for the heads of the coup attempted some months ago the reason  for the refusal argued by the Belgians authorities is a defect of form that apparently isn’t so, what in my view should have prompted the Ministry of Justice to show its concern and to have presented a case before the European Commision demanding a  review of the EAW workings in the example at hand. Such a case would have been easy to prepare given the great number of scholarly articles treating the matter that appeared during those days.

In the German and British cases we’re still waiting for a final decision. The first German decision made such basic mistakes about the EAW working that it also should have been raised to the European Comision under the premise that the EAW was not being rightly understood by the German courts,   what could impair its working.

It looks to me like the court of Schleswig-Holstein does not want to hand over Mr Puigdemont because the public opinion in Germany tends to think that he’s being politically prosecuted. Nevertheless, the court doesn’t dare to say such a thing and hides behind poorly conceived technical arguments that shouldn’t hold for long. If it uses in its final decisions these same arguments, a revamping of the EAW will be in order because it wouldn’t be working as intended. If, on the other hand, the German court opts for saying explicitely that Mr Puigdemont is suffering a political prosecution, the Spanish Goverment should be prepared for the political and public relations fight  that the Popular Party Goverment so carefully avoided