Carles Puigdemont and the European Arrest Warrant: Frequently Asked Questions – an update

After the recent arrest in Germany of Catalan leader, Carles Puigdemont, under a European Arrest Warrant, Fair Trials has updated our previous FAQs on the case to bring you an updated 10 Frequently Asked Questions on the European Arrest Warrant in the Puigdemont case.

What happened to the European Arrest Warrant (“EAW”) proceedings in Belgium?

On 5 December 2017, the Spanish Supreme Court withdrew the European arrest warrant for Mr Carles Puidgemont and four other Catalan politicians that had been originally issued when they fled to Belgium in October 2017.

However, Mr Puidgemont and the other Catalan politicians still faced criminal prosecution if they returned to Spain.

Why was the EAW initially withdrawn by Spain?

The EAW involves a judicial procedure in which governments, in principle, do not have a role to play.

When the EAW was first examined by the Belgian court overseeing the request from Spain, it was reported that Mr Puidgemont’s legal counsel argued that his client’s fundamental rights, including his right to a fair trial, would not be guaranteed in Spain.

Further, it was expected that the Belgian court would seek clarification from its Spanish counterpart regarding the offences on which the EAW was based (misuse of public funds, sedition and rebellion). The Belgian court may have sought to confirm that the Spanish law offences of “sedition” and “rebellion” were also foreseen in Belgian law. In this respect, the EAW allows the executing State (the country that is being requested to surrender the individual) to refuse to execute an EAW in certain limited circumstances, including, in respect of certain offences, where the EAW is based on an act which does not constitute an offence under the law of the executing Member State.

The Belgian court could, therefore, have refused to execute the EAW or accepted to send Mr Puidgemont back to Spain subject to a guarantee by Spain that Mr Puidgemont would not be tried in respect of any offence not recognised under Belgian law, including rebellion and sedition. This would have had a significant impact on the Spanish prosecution, as rebellion was the main offence carrying a prison sentence of up to 30 years.

What is the difference now?

On Thursday 22 March, Mr Puidgemont travelled from Belgium to Finland. The next day, the Spanish Supreme Court formally charged Mr Puidgemont for sedition, rebellion and misuse of public funds and issued an EAW. Mr Puidgemont proceeded to travel by car from Finland back to Belgium and was arrested by German police after he crossed the border from Denmark on the morning of Sunday 25 March.

On Monday 26 March, the Court in the northern German town of Neumeunster decided to remand Mr Puidgemont in custody until the court decides whether to execute the EAW. Interestingly, the Belgian judge had released Mr Puidgemont subject to conditions.

What happens now in Germany?

Germany now has 60 days to decide whether to execute the EAW and send Puigdemont back to Spain for prosecution.

During this process, the German judge can also ask for relevant information from the Spanish authorities to help reach a decision.

If Mr Puigdemont objects to the surrender, one of two things can happen:

• The German judge refuses to surrender Mr Puigdemont to Spain, in which case he is released without any conditions.

• If the judge decides to order Mr Puigdemont’s surrender, he will be able to appeal the decision.

What arguments could Mr Puigdemont present to the court in Germany to prevent the EAW from being executed?

There are several arguments that can be made to challenge an EAW. These include the following examples given below:

• The execution of the EAW could be refused if the facts of the alleged offence are not considered to be a crime in the executing state. In this instance, Mr Puigdemont was charged in Spain for “rebellion” and “sedition”. The “high treason” offence in Germany appears to be comparable to the Spanish offence of “rebellion”. However, German criminal law experts have indicated that the German offence requires evidence of “violence or threat of violence” by the accused, which may be difficult to prove in this case. The German court will have to consider whether, if those same acts had taken place in Germany, they would have constituted a crime.

• On the other hand, Mr Puigdemont is also being prosecuted for misuse of public funds, which is recognised as a crime in Germany.

• Mr Puigdemont could also challenge the EAW on the grounds that it is a ‘disproportionate’ measure (see below for an explanation of the term ‘proportionality’). He could argue that there are other measures that would enable his investigation without being surrendered from Germany to Spain. These alternative measures include the European Investigation Order (“EIO”).

• Finally, Mr Puigdemont could also argue that his fundamental rights, including his right to a fair trial, as protected by the EU Charter on Fundamental Rights and the European Convention on Human Rights, would be put at risk if he were to be surrendered to Spain.

What fundamental rights arguments could Mr Puigdemont present?

In theory, Mr Puigdemont could argue that his surrender would violate a number of his fundamental rights, including his rights to liberty, to a fair trial, to freedom of expression.

In addition, the European Court of Human Rights has found that excessive periods of pre-trial detention could be linked to degrading or inhuman treatment, in addition to the violation of the right to liberty.

What is Spain’s record on pre-trial detention?

A 2015 report coordinated by Fair Trials identified a number of issues regarding pre-trial detention in Spain including the following:

• Poor and belated access to the case-file for defence lawyers. Access to the case-file is not provided at all in the context of Spain’s secret criminal proceedings, called secreto de las actuaciones, which are not uncommon. That kind of proceedings may significantly disadvantage for the defence.

• Over-reliance by judges on arguments put forward by the prosecution at the expense of those of the defence.

• Abstract, unclear reasoning in judges’ decisions, without due attention to specific circumstances.

• Insufficient use of alternative measures to detention, like electronic tagging, or travel bans.

• Ineffective and irregular judicial reviews of pre-trial detention decisions.

What criticisms have been made by Fair Trials related to the EAW?

We have long been campaigning for the reform of the EAW in order to solve several critical problems, for instance when:

• People are extradited when there is a real risk they will be subjected to serious human rights abuses;

• The EAW is used when less severe alternatives could be explored;

• The EAW is disproportionately issued for minor crimes;

• Procedural safeguards, including a right to legal advice in both countries, are not respected.

What is proportionality?

In the context of EAWs, proportionality is the requirement that the EAW should not be used excessively, and be proportionate to its impact on the affected individual. EAWs can have a devastating impact on people’s lives. For example, it can cause a person to lose their job and leave their family. An EAW issued for a very minor offence, or in circumstances where less detrimental alternatives are available, could be regarded as ‘disproportionate’.

How are fundamental rights risks assessed in the context of an EAW?

When deciding on an EAW, courts must assess the implications on the fundamental rights of the individual wanted for surrender. This was sanctioned by the Court of Justice of the European Union (“CJEU”) in April 2016 in the joined cases of Aranyosi and Caldararu relating to prison conditions. According to this decision, the national court should refuse the surrender of the individual, if it finds that this would result in the violation of their fundamental rights. It is not yet fully clear how the courts should measure the risks of fundamental rights violations, and what sources of information they should rely on.

In the context of EAWs, the two fundamental rights that are most frequently threatened are the right to be free from inhuman and degrading treatment and the right to a fair trial. In order to ensure the smooth running of the EAW among EU Member States, the EU has adopted a set of binding laws to set minimum standards for procedural safeguards in criminal proceedings, such as the right of access to a lawyer and the right to be presumed innocent.

Fair Trials recently sought to intervene on the risk of a violation of the fundamental right to a fair trial in the context of the EAW in the Irish case of The Minister for Justice and Equality and Artur Celmer and argued that the CJEU should develop a brand-new test for national courts to apply where the court believes that there are risks to the right to a fair trial as established in EU law, such as threats to the independence of the judiciary, in the receiving country.

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