After two previous attempts, first in Belgium, then in Germany, a fresh European Arrest Warrant has been issued for the arrest of former Catalan President Carles Puigdemont. Auke Willems argues that this will not merely be a rerun of prior cases. The Belgian courts will have to answer a number of ‘new’ fundamental questions before granting the request to extradite Puigdemont to Spain as the political and legal climate have changed drastically.

Carles Puigdemont, the former President of Catalonia, is wanted by Spain for calling a referendum and subsequently declaring Catalonia’s independence in 2017, against Madrid’s wishes. He has since been wanted on charges of misuse of public funds and sedition. However, this is not the first extradition request, in the form of a European Arrest Warrant, but rather the third. On two previous occasions Spain withdrew its requests, as procedures were not going its way. The first one, issued in 2017, was ultimately revoked as there were indications Belgian judges would rule out dual criminality for the crime of sedition. A similar scenario unfolded in 2018, after Puigdemont had been arrested in Germany and extradition was granted only for the lesser crime of misuse of public funds, Spain once again revoked its request.

While this third request will largely revolve around the same legal questions, it raises a number of additional questions and concerns as the landscape has changed drastically, both legally and politically. First, we have now seen the harsh sentences imposed on nine Catalan politicians for participation in the contested referendum, ranging from nine to thirteen years. It has been announced they will appeal the judgments to the European Court of Human Rights in Strasbourg. The convictions drew immediate criticism, both from inside and outside of Spain. Concerns have been raised as to the fairness of proceedings as well as the proportionality of the sentences, and have led to large protests in the streets of Barcelona.

It is thus clear that Puigdemont is facing a lengthy jail sentence if extradited to Spain. This development has strengthened the belief of Spanish prosecutors that even if extradition is granted only for the ‘lesser crime’ of misuse of public funds, this could still lead to a significant sentence. Hence, the fear of rejection for extradition on the charge of sedition, which would tie prosecutors’ hands and make Spain withdraw its previous requests, is mitigated.

As soon as the third extradition request was filed, Puigdemont handed himself in to the Belgian authorities, declaring he would cooperate fully, but resisting extradition. He has since been released on bail. Before we turn to the arguments Puigdemont may raise in his defence, first a brief reminder of relevant EU law.

The European Arrest Warrant and mutual trust

The European Arrest Warrant finds itself once again at the centre of a highly political situation (following the previous requests, but also the case of Julian Assange). The European Arrest Warrant is the flagship EU criminal law instrument, and applies the principle of mutual recognition to extradition, meaning that extradition can only be refused on a limited number of grounds. Most importantly, this is now a judicial procedure, unlike extradition, which is a political decision (often ultimately made by a Minister of Justice, rather than a judge).

The European Arrest Warrant is based on a presumed level of mutual trust between EU member states, which is justified primarily because of equivalence in safeguarding fundamental rights, more precisely the right to a fair trial. Hence, the most prominent absentee on the list of refusal grounds provided is a direct fundamental rights refusal. There has long been debate about how this absence should be interpreted. The instrument does speak of the importance of fundamental rights several times throughout; however, for a long time the Court of Justice of the European Union (CJEU) has not allowed such an interpretation.

In 2016 however, the CJEU for the first time allowed refusal of a request for a European Arrest Warrant in the case of a fundamental rights deficiency, more specifically relating to poor detention conditions (Article 4 of the EU Charter). Puigdemont did invoke this argument during the first procedure, but Spain responded with details of his detention facilities, making it very difficult to successfully show that his Article 4 rights will be violated, as the CJEU has required a rather high standard of evidence to rebut the trust presumption.

New questions to address

In recent years, we have seen the CJEU opening up further possibilities to rebut the trust presumption. A ground to question this trust which has appeared since relates to judicial independence. In a 2018 European Arrest Warrant case on extradition to Poland, the independence of the judiciary was questioned by the requested Irish court. The CJEU ruled that if this poses a real risk in an individual case, this must lead to a refusal of extradition.

But again, the evidentiary standard required is high. It must be demonstrated that the real risk is a result of systemic or generalised deficiencies affecting the independence of the judiciary. The independence of the Spanish judiciary in these cases has been questioned, but in the case of Poland, the so-called Article 7 proceedings provided detailed evidence of sustained attacks that the Polish judiciary is facing. This is something which is absent regarding Spain. Puigdemont might very well raise this issue in his defence, effectively arguing he will not be given a fair trial. While this will be a difficult sell, it will force the Belgian court to look into this delicate matter.

Furthermore, the lengthy sentences imposed on the nine politicians raise questions about proportionality. Even though proportionality is not a recognised ground for refusal under the European Arrest Warrant, a number of member states do take this into consideration when deciding on a request. Proportionality of requests is one of the most contentious issues and has long plagued the European Arrest Warrant. Proportionality questions usually enquire whether extradition as a tool is proportionate in relation to the crime underpinning the request.

However, in this case it would not be questioned whether the crime of misuse of public funds is sufficiently serious to justify a European Arrest Warrant, which it arguably is, but rather whether the penalty that is likely to be imposed is proportionate to that crime and to the burdensome procedure of extradition. A question that requested authorities must examine with care and appropriate distance, as the requesting state’s determination of proportionality will usually be followed.

In this case though, the proportionality issue could possibly be framed in a slightly different manner. Namely whether issuing three European Arrest Warrants is proportionate to the crime of misuse of public funds. Especially when taking account the impact these procedures must have had on Puigdemont, effectively living in exile since 2017.

This leads us to the final issue of whether this amounts to an abuse of process type of argument. Is the European Arrest Warrant, and triggering the European system of extradition, which is costly and resource demanding, meant to be used as Spain has? Issuing, revoking, re-issuing, re-revoking and then re-re-issuing seems a stretch. Mutual trust not only works towards (trusting) the requesting state, it should also respect the requested state. It is a mutual process.

This trust might have been violated by ‘gaming’ the system, as costly proceedings were initiated and abruptly ended earlier in Belgium and Germany. What guarantees do Belgian judges have that Spain will not revoke again when proceedings reach a critical phase? Spain’s ‘strategic’ use of the European Arrest Warrant (it has also been suggested Spain earlier ‘selected’ Germany as a venue as it would have similar laws to Spain) might very well run counter to the mutual trust the system is built on.

Dual criminality requirements

In addition to a number of ‘new’ contentious issues, the proceedings will debate the question of dual criminality, like in the two prior cases. The dual criminality rule requires that for a crime to be extraditable it must be criminalised in both jurisdictions. While a major innovation of the European Arrest Warrant has been to abolish this key rule of extradition law, it has only done so for a list of 32 crimes, leaving member states the option to require dual criminality for other crimes.

Consequently, if multiple charges are brought against an individual, and dual criminality is only established for certain crimes, then the subsequent national prosecution can only be on those charges. This is the so-called ‘specialty rule’, under which an extradited person is subject to prosecution only for those offences for which they were surrendered.

German courts ruled that sedition was not a crime under German law, and Belgian judges were examining this matter, hence extradition could be granted only for misuse of public funds. It is uncertain how they will currently rule on this, as there are crimes under Belgian law that do look similar to ‘sedition’ (in Dutch ‘opruiing’). Belgian criminal law professor Frank Verbruggen has argued that these also constitute crimes under Belgian law. Concerning the other charge, misuse of public funds, this appears to meet dual criminality requirements, either under Belgian law, or arguably even under the list of 32 crimes, if this is framed as ‘corruption’. Hence, to successfully challenge the European Arrest Warrant, Puigdemont will have to connect this to the above discussed grounds.

Where is this going to end?

Overall, the outcome is far from certain. In the prior case, the Belgian Court showed reluctance to grant the request. Now it will have additional reasons to be concerned. Furthermore, Belgian courts have rejected extradition to Spain in the past on the basis that Spain would not be fully fundamental rights compliant. At the same time, the evidentiary bar set by the CJEU to trigger one of the refusal grounds is high, and the burden will be on Puigdemont to show systemic deficiencies in Spain’s judicial system, as well as an individual and real risk in his case.

While it is not for the requested member state to look too much into a European Arrest Warrant, as the system operates on the basis of mutual trust, there is every reason here for Belgian courts to take a very serious look at the concerns discussed above. If Belgium will assist in the prosecution of a politician, with a severe sentence now likely, it will surely do so in the most careful and procedurally sound way possible. Hence, this is likely to be a lengthy procedure, possibly involving appeals and even preliminary questions to the CJEU in Luxembourg. That is if Spain does not revoke when it turns out things are not going its way.

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Note: This article gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics.

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About the author

Auke Willems – University of Liverpool / LSE

Auke Willems is a Lecturer in EU Law at the University of Liverpool and a Visiting Fellow in the LSE’s European Institute.