Originally published in Spanish: “No pienses en una extradición”. Jesús Alfaro. Almacén de derecho.
17th July 2018
«If the Spanish government had consulted the judicial network of experts in European law, it might not have asked for Puigdemont’s arrest in Germany,» someone said at an after-lunch conversation. This phrase explains the title of this entry. Germany has not “faithfully” transposed the Framework Decision on the European arrest warrant into German law. It has been the victim – Germany or, perhaps better still, the other Europeans – of its obsession with maintaining its law as a system of law with systematic coherence, an obsession which has led, for example, to the continuous amendment of its Civil Code instead of the passing of special laws to incorporate European Directives. So, when it had to transpose the Framework Decision on the European arrest warrant, Germany, instead of enacting a specific law, amended its Act on International Legal Cooperation in Criminal Matters (hereinafter IRG), the traditional instrument for extradition regulation.
In doing so, and despite the fact that, as has been repeatedly explained, the model of extradition and the model of the Framework Decision have nothing to do with each other (the first is based on the principle of mistrust, to ensure the protection of individual rights, and the second is based on the principle of mutual trust, to ensure the best protection of legal assets protected by criminal law in the countries of the Union), German judges cannot help ruling from within the extradition «framework». They cannot stop thinking’ of requests for surrender from another European judge as if they were extradition requests, instead of thinking of them as if they were requests addressed to them by other judges from their own country. The German legislator has therefore locked the German judges in the extradition framework by regulating the European arrest warrant by simply amending the rules on extradition.
As it is logical to assume, I am not the first one to notice this. In his conclusions in Case C-220/18- PPU – ML, when considering a Hungarian surrender request issued to the German courts in Bremen, the Advocate General referred to the evaluation report on the application of the Framework Decision and reproduced the following paragraph in point 54:
The duality of concurrent authorities would seem to be inspired by the same procedure and the same principles governing extradition. As already underlined in a report of 31 March 2009, submitted by the Council to the Member States after the fourth round of mutual evaluations of the practical implementation of the EAW, the provisions of the IRG in this area, even after the 2006 reform «are not conductive to support the idea that surrender on the basis of an EAW is not only a slightly different variety from classical extradition, but a new form of assistance based on completely different principles […] In this situation, the experts consider that there is a risk that the[German] judicial authorities will resort to the legislation and case law on extradition […]» (7058 2009 REV 2, 31 April 2009, Evaluation report on the fourth round of mutual evaluations ‘The practical application of the European arrest warrant and corresponding surrender procedures between Member States’, report on Germany, p. 35).
Let’s look at the German court’s argument in a little detail. In our opinion, the German court has acted with the mentality of someone who checks whether the request for extradition is «fair» from the perspective of the protection of the rights of the person whose surrender is sought; with this mentality, it is difficult to achieve a high degree of cooperation between judges throughout Europe and for the entire European territory to function as if it were a national territory, that is, as a geographical area in which an individual cannot escape the action of justice in the country where he or she (allegedly or with a high evidential backing) is accused of committing a crime.
Thus, the German court begins by examining the requirement of «double criminality» (since we are not dealing with one of the criminal types that generate the obligation of automatic surrender).
According to Article 3 (1) of the IRG, extradition is only admissible in principle if there is so-called «double criminality», i.e. if the offence would also be an illegal act under German law which would constitute a criminal offence under the (German) Criminal Code. The wording of the Act makes it clear that it is not sufficient that the offence charged should resemble a criminal offence under the German Criminal Code. The facts must fit into a criminal type of the German Criminal Code. If it were intended, as has been claimed in the public discussion, to use a «less stringent» analysis, the consequence would be that the enforcement court would have to carry out a public policy analysis in accordance with § 73 IRG more stringent, a consequence that the Law has sought to avoid (see the recitals of the draft Government to § 3 IRG-E, BTDrs. 9/1338, p. 36 ff.).
The Schleswig-Holstein Court, as you can see, is thinking of extradition («only admissible»). It is not thinking that it has received a request from a court in Bavaria to hand over a guy they are looking for because he robbed a gas station and took refuge in Kiel. The reference to public policy is unequivocal: the German court ‘sees’ the surrender order under the Framework Decision as a substitute for an extradition request replacing the examination of concordance with national public policy by the requirement of dual criminality. The consequence is not long in coming: a very strict qualification of the facts to determine whether they fit into a particular type of crime according to the German Criminal Code. Indeed..
How should the issue of dual criminality be examined?
The German court states that
«In order to make such an examination possible, the so-called analogue translation (sinngemässe Umstellung) must be conducted» (second sentence of paragraph 3(1) of the IRG) (see Article 3(2) of the IRG)…. taking into account the fact that the legal system of the applicant – Spanish – and the legal system of the requested State – German – do not qualify the facts in the same way under criminal law. This means that the facts on which the European arrest warrant and the request for extradition are based must be examined in the light of the rules of German criminal law, i.e. whether there is criminal liability under Spanish law and also under German criminal law.
This means, more or less, proving that the facts narrated in the extradition request fit into the comparable criminal type of the national criminal code of the executing judge even if the criminal type does not have the same name (the offence) as in the country requesting the extradition.
The German court goes on to say that, in this way, account is taken of the fact that the two legal systems do not assess the facts in exactly the same way (identically), but at the same time it means that ‘the facts contained in the European arrest warrant must be assessed in accordance with German criminal law‘, that is to say that it has to be checked whether the facts would be punishable under provisions of German criminal law equivalent to a provision of Spanish criminal law.
And, having said that, the German court says that it doesn’t have to consider anything else. In particular, it does not have to decide whether it is sufficient for the facts narrated in the European arrest warrant to fit into any provision of German criminal law – as part of German doctrine maintains – or whether ‘legal consistency’ between the provisions of German and Spanish criminal law is required.
It goes on to explain that, since it is an extradition to another European country, the application of the general rule of execution and the interpretation of national law in accordance with European law (the principle of effectiveness) leads it to extend its analysis beyond high treason. In particular it examines whether the facts fit in the German crime of public disorder in order to conclude that the facts do not fit into either crime.
The rest of the resolution is less interesting. What the German court does is to examine the facts… as if it had to prosecute Puigdemont in Germany for either of the two offences
and its conclusion is that, according to the very few precedents for the application of either crime in Germany, the events that took place in Barcelona in the autumn and Puigdemont’s conduct would not fit into those crimes as regulated in German law.
The German court’s analysis begins with the low hanging fruit. It is obvious that Puigdemont never proposed an armed or violent uprising as a means of achieving independence (and the Spanish Supreme Court has never considered that the events of the autumn of Barcelona fit the type of rebellion from this point of view).
It then adds that the violence that was experienced in Barcelona on 1 October does not have the intensity required by the criminal type of German high treason as interpreted in the only known precedent for the application in Germany of this provision – the “Frankfurt airport” case. The German court analyses the facts as they have been told by the Spanish Supreme Court and the German Public Prosecutor’s Office and decides that the violence unleashed did not at any time endanger the Spanish constitutional order. It then analyses Puigdemont’s participation and concludes that he cannot be blamed for the violence unleashed despite the fact that he was in command of the “mossos d’esquadra” and that they were ordered to violate the court order to prevent the holding of the referendum. Moreover, the German court questions whether the proclamation of independence was «serious» and points out that Puigdemont’s intention was not to subvert the Spanish constitutional order but simply to force the state to negotiate.
The equation between the anti-establishment revolts and the uprising of a regional government against the Constitution
There are some manifestations of the German court that are more painful than others. In particular, it is truly painful for any pro-European to see a German Court become a defender, not of the individual rights of an individual persecuted by a State, but of the»rights» (?) of a constitutional body of a Member State which has raised against the Constitution of its country. The paragraph reproduced below, in particular, is quite ignorant of the difference between the revolutionary violence perpetrated by private individuals who rise up against the State and the use by those who hold political office in public institutions to rise up against the constitutional order of the State. The German court, in resorting once again to the precedent of Frankfurt airport (where the criminal liability of private individuals who protested against a political decision and occupied an airport was discussed), confused the very different position of private individuals and those holding public office without taking into account that they have a special duty of obedience and a duty of guarantors with regard to respect for and obedience to the Constitution.
The German court overlooks that distinction when it states that
«in a democratic and social state, and also for constitutional reasons, criminal law must be applied to political disputes with restraint «
and, it adds, the defendant is in a different position when facing the State and when facing another individual:
«In comparison with the protection of individual legal property, the alleged offender faces a much more difficult target to influence because it is the State and its institutions.”
Please note the absurdity of bringing up this doctrine – which is very sensible when applied to private «anti-establishement» individuals who try to force the hand of the public authorities by means other than electoral contest – to apply it to the rebellion of a regional government against the Constitution. In the Puigdemont case, it is not an individual who is confronting the State; it is a part of the State that is confronting the State. Therefore, the statements of the German Court – decisive in its assessment of the “sinngemässe Umstellung” of the crime of Spanish rebellion and the crime of German high treason – could not be more unfortunate.
The seriousness of the German court’s statement stems from the fact that, if its analysis is wrong – that is to say, if it is accepted that it cannot be equated with an individual who rebels against the state and a head of a regional government – the German court has done European judicial cooperation a disservice by interfering where it is not called upon. If I had avoided the assessment, I would have avoided the mistake.
And, after this point, the conclusions of the German court are consistent but equally unfortunate
The pressure – the threat of violence and violence that has actually occurred – on the Spanish State, it says, is not sufficient to endanger (an offence consisting in the creation of a state of affairs which is dangerous, where no specific danger need be statutorily defined) the Spanish constitutional order. In this assessment (completely contradictory to that of the Supreme Court judge),
a) that Puigdemont was the president of the Generalitat;
b) that he had the support of the Parliament and
c) of 17,000 armed police officers who constituted the only non-military armed force deployed throughout Catalan territory
become irrelevant to assess the intensity of the pressure that could be exerted on the Spanish state. The purpose of the referendum of 1 October is also irrelevant to the German court: any crimes committed by those who resisted authority; by those who attacked the police (by throwing, for example, metal fences such as the one that made a Spanish protester lose an eye) are irrelevant to the objective of those who took part in the referendum; for the German court, these are criminal acts but «the court does not consider that they seriously threatened the constitutional order of the Spanish state”. This is decomposing a set of actions that have unity because of the purpose for which they are carried out to rule out the possibility that the objective that united them could be reached. This «strategy» of the German court extends to the events that took place before and after the referendum on October 1. Thus, what happened on September 20 is not part of the uprising against the Constitution. Finally, Puigdemont did not order the Catalan police to confront the Spanish police either, so there was no use of force in this regard either. And if he ordered them not to cooperate with the Spanish police, after all – says the German Court with boldness – the referendum on 1 October did not lead to the separation of Catalonia from Spain.
In short, the German court replaces the Spanish court – the only one with jurisdiction to try Puigdemont – and judges its conduct from the perspective of German law. An absurdity if one thinks that German law would never be applicable to the conduct of Puigdemont and his colleagues in the attempted coup d’état.
It is immediately understood that the German court behaves more like a defender of Puigdemont than an examiner of whether there is any public policy reason not to comply with a request for surrender from another European court. The following sentence is terrible, as the German court tries to discern Puigdemont’s psychological state, what he wanted or didn’t want:
“It may be that the defendants’ peers have looked at (the referendum) as an intermediate step necessary for complete independence. But (Puigdemont)… just wanted to look at it as the prelude to a negotiation.”
If we read this sentence in the defendant’s allegations, it would have a pass. In a court ruling on whether to hand over a defendant to another EU court, it leads to think of the poor loyalty, cooperation and mutual trust displayed by the Schleswig-Holstein court.
Coda for national commentators
Those Spaniards who have written on the subject and who want to be more papist than the Pope should give up their efforts for a better cause than that of defending a decision as harmful to judicial cooperation in Europe as that of the Schleswig-Holstein Court. I am no longer referring to people like Nieva-Fenoll who have used it to advance their political agenda. I am referring to others with better intentions and more legal knowledge who have considered that the legal analysis of Puigdemont’s conduct by the German court is «better» than that of the case investigator in the Supreme Court because they do not agree with the classification as rebellion of the conduct of the former president of the Generalitat and his peers without taking into account that the order of surrender issued by Llarena is to prosecute them, not to have them serve a sentence for such a crime in Spain. Whether or not there was a rebellion is something that must be decided, after the trial, by the Spanish courts and that could never be decided by a German court.
The German court should have merely verified that the facts described, as interpreted by the Spanish court, would, in fact, fall within the German criminal offence. In such an analysis, examining the intensity of the violence, the possible malice or guilt represented by Puigdemont, his participation as an inducer or as a necessary cooperator, his intentions in relation to the Spanish government or the number of policemen injured is as inappropriate as assessing the Spanish state’s capacity to resist a political-civil uprising in one of its regions or the force that the state should have used to suppress the attempted coup d’état.