Just over a month later, a day after the 14 December 2017 extradition hearing was set by the Belgian court, the issuing judge, Pablo Lahren, withdrew the EAW against all five individuals. What was the reason? Judge Lahren explained that the EAW may complicate the investigation. The Spanish Supreme Court said that the withdrawal of the EAW would prevent the involvement of multiple jurisdictions. What does this mean?

The alleged offences

The allegations centre on the assertion that Puigdemont contravened Spanish Constitutional Court rulings and injunctions by holding a referendum on the issue of independence for Catalonia. It is asserted that he caused the Catalan Assembly to make a declaration of independence on 27 October 2017.

Significantly, it includes some assertions of force. These include crowd movements preventing arrests in September 2017, assaults upon police vehicles and the support of the 17,000 strong or Catalan police, said to carry an intimidating effect. The nature of his criminal responsibility for these events is unclear. It is also said that he used public funds to pursue the referendum without lawful basis.

The Spanish judge has found that the acts described could potentially constitute three offences. First, ‘rebellion’, of which a person is guilty if they ‘rise up… violently and publicly’ for various purposes, including ‘to modify or suspend… the Constitution’ and ‘to declare the independence of any part of the national territory’. Secondly, ‘sedition’, arising from public disorder to impede, by force or unlawful means, the application of laws or any public authority’s legitimate exercise of its functions, or enforcement of court orders. Thirdly, and more simply, embezzlement involving the standard elements of misuse of public funds.

Back to basics: the EAW system

An EAW is a judicial decision issued for the arrest and surrender of a requested person for the purposes of conducting a prosecution or in respect of a convicted person for them to serve the sentence imposed. It was designed to expedite the surrender of criminal suspects between EU states. It is predicated upon mutual trust and confidence between member states. One of the means by which the process simplified previous extradition arrangements was that the requesting state no longer has to provide an extradition request, they simply complete a pro forma document that is signed by a judicial authority. The process is supposed to be completed within 60 days – our European counterparts are rather better at achieving this than we are.

Process in Belgium

A few days before the EAW was issued, the five individuals left Spain and flew to Brussels. Puigdemont had been summoned to appear at Spain’s national court on 2 November 2017 to give evidence relating to possible charges of sedition, rebellion and misuse of public funds. In Belgium, Puigdemont surrendered himself to the police. After a ten-hour hearing, a Belgian court released him on bail. On 4 December 2017 an extradition hearing was listed for 14 December 2017. If the EAW had not been withdrawn, what would have the arguments been?

What might have been raised in legal argument?

Dual criminality

Extradition can only be ordered if the principle of dual criminality is satisfied; namely that the conduct in respect of which extradition is sought are also offences in Belgium. It is being reported that the only conduct which the Belgian court would have found was an extradition offence was the misuse of public funds. Why?

Referendums on independence are supposed to be conducted with the consent of the parent state and this was why the independence referendum was judged to be illegal by the Spanish courts. However, an International Court of Justice Advisory Opinion on Kosovo in 2010 stated that international law does not specifically prohibit unilateral declarations of independence, and that international law only condemns declarations of independence procured through an illegal use of force. Indeed, Serbian President, Aleksandar Vucic, criticised the EU for ‘hypocrisy’ over taking a difference stance towards the Catalan independence vote when the EU had essentially ‘blessed’ the Kosovar secession from Serbia in 2008. ‘Force’ appears to be the key concept here. Holding a referendum and declaring independence in a fashion which is ultra vires is different from using force to overthrow the constitutional order.

The European Court of Human Rights has held it is a violation of the rights to freedom of expression and assembly for a person to face criminal sanctions for matters that do not extend beyond the exercise of such rights, eg a genuine demonstrator convicted of rioting. In line with this, there is an expectation that criminal statutes prohibiting the overthrow of government will require force. There is nothing wrong with just wanting change.

If Puigdemont was discharged in respect of all offences bar misuse of funds, then he could not have been prosecuted for the other offences under the doctrine of specialty. If the Spanish authorities suspected that this was the case then this would be a strong incentive for them to withdraw the EAW and hope that the five individuals will at some point return back to Spain.

Wanted for interview not charge

Puigdemont requested to be heard by videoconference, pursuant to provisions of Spanish law implementing a pre-existing intra-EU mutual legal assistance treaty (EIO). This request was refused but the decision did not address the provisions of the EIO. Spain is late in implementing the EIO, which was due to be transposed by 22 May 2017. Puigdemont may well have argued that it was disproportionate for Madrid to rely on its own non-implementation to make this less coercive alternative unavailable. The Spanish reply would undoubtedly have been that they rejected his request because Puigdemont had the opportunity to be heard in Spain and opted instead to travel to Belgium.

"In the United Kingdom, it would be possible for Puigdemont to argue that his extradition was barred because he was sought for ‘extraneous considerations’"
Political offence

In the United Kingdom, it would be possible for Puigdemont to argue that his extradition was barred because he was sought for ‘extraneous considerations’. In other words, extradition may be refused if there are objective reasons to believe that the extradition request has been issued to prosecute or punish someone on the grounds, amongst other things, of their political opinions. In Belgium, Puigdemont would have likely have had to frame this argument with reference to the European Convention on Human Rights or perhaps the abuse of process jurisdiction. This is because Belgium relies on the Framework Decision, rather than adding in provisions as the UK has done in the Extradition Act 2003. Whether those rights include the protection from extradition for political offences might be a point of argument.

In November, Puigdemont told the Belgian public TV channel RTBF: ‘It’s obvious it’s politicised. The guarantees are not there for a fair, independent trial.’ However, notwithstanding Puigdemont’s defiant confidence, this would have been difficult to successfully argue. The EAW system is founded on mutual trust, shared principles of democracy and the rule of law. The system treats the possibility of persecution, including by means of prosecution, as remote. Indeed, in asylum law, EU directives apply only to ‘third-country nationals’ because EU members are deemed safe.

Whilst the case is exceptional, the issue of political opinion being relevant to an extradition request has broader import, even within the EU to the discomfort of judges who will not want to be drawn what appears to be political comment. Poland, for example, has been subject to much criticism this year including that criticism of laws that seemingly politicise judges in Poland. The same might also apply to Hungary which has been subject to recent criticism about the stifling of civil society and political activism.

What now?

Although the EAW has been withdrawn and Puigdemont has been discharged by the Belgian court, there is an extant domestic warrant for his arrest in Spain. This means that he is liable to arrest if he sets foot on Spanish territory. With all five persons indicating that they would return to Spain to take up political office, politics certainly may determine whether these fugitives will face the charges.

Contributors Gemma Lindfield and Amelia Nice are barristers at 5 St Andrew’s Hill