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—Antoni Abat i Ninet, Professor Constitutional Law, Faculty of Law – University of Copenhagen and Joan Queralt Jiménez, Professor of Criminal Law, Faculty of Law – University of Barcelona
Sixteen Catalan representatives and the leaders of two grassroots associations are currently facing severe criminal charges in Spain for organising and celebrating a referendum of self-determination of 1 October 2017. This consultation was banned by the Constitutional Court and repressed violently by the Spanish armed police.
Unlike the previous criminal charges against former Catalan representatives for organising a symbolic popular consultation on independence on 9 November 2014, nine people have to this day been imprisoned for more than 175 days, in pre-trail detention and facing charges of rebellion (among others) which carries a maximum sentence of 30 years in prison, if found guilty. The pre-trail imprisonment of these political leaders and grassroots activists in undignified and inhumane conditions is unjustified in the view of many. The nine political prisoners are imprisoned in the Madrid area at 600 km from home. The policy of dispersal under which prisoners are removed from their families is in addition a punishment for the prisoner’s family and loved ones, since they are forced to undertake long and difficult journeys, involving a high risk of accidents.
The rest of seven accused are currently “in exile” and the judiciary of Belgium, Scotland and Germany have been asked to execute the European Arrest Warrants and to deliver these Catalan representatives to the Spanish justice. Switzerland, a non-member of the European Union will apply the Treaty of extradition with Spain of 1883, the European Convention of Extradition of 1957 and the Swiss Federal Act of 20 March 1981 on international Mutual Assistance in Criminal Matters.
As is usual in any procedure of involving the European Arrest Warrant (EAW), the competent judicial institution will analyse whether the request fulfills some basic legal requirements in order to be executed. As the European Commission remarks, the EAW is a judicial decision enforceable in the Union that is issued by a Member State and executed in another Member State on the basis of the principle of mutual recognition. The grounds for refusal of execution are limited and exhaustively listed in Articles 3, 4 and 4a of the Framework Decision on EAW. There is no verification of double criminality as a ground for non-execution and non-surrender with regard to 32 categories of offences listed in Article 2(2) of the Framework Decision on EAW, as defined by the issuing Member State, where those offences are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years.
The Spanish Supreme Court first issued an EAW to arrest President Puigdemont and other members of the former Catalan Government residing in Belgium. In an odd decision the Magistrate in charge of the procedure, Llarena, decided to withdraw the EAW. The withdrawal was justified basically with three arguments. The first was the possibility that the exiles in Belgium would return (which seemed to be more wish-full thinking than a real possibility). The second argument focused on the multi-subject character of the cause, specifically that there are many imputed that have to be treated equally. Finally, a third reason was the need to avoid the risk of a potential refusal of any surrender to the Spanish justice due to the lack of sufficient guarantees being given.
Months later, and in a different stage of the criminal procedure but still in the pre-trial stage, the same Magistrate issued a new EAW ordering the arrest of the Catalan representatives in exile. President Puigdemont was arrested in Northern Germany after crossing different EU countries and with a GPS tracker in his car. The second EAW was then initiated and the Spanish judiciary, political parties and media celebrated the capture of the fugitive and expected a fast hand over to the Spanish authorities.
However, on 5 April, the High Court of Regional Land of Slesvig-Holstein decided to release on bail the Catalan President and not to grant the extradition for the charges of rebellion (the worst charge). The fears that had motivated the withdrawal of the first EAW increased.
Today there is real anxiety that the Spanish request will not overcome the screening process of democratic justices on matters of rebellion, sedition and misappropriation. To this we might add serious concerns with breach legal and procedural guarantees for the prosecuted (such as the assignment of the case to a judge predetermined by law).
The German decision on the EAW request on President Puigdemont will be limited to the charges of misappropriation. It would be imprudent to predict a result but this decision and the forthcoming judgments in Belgium, Scotland and Switzerland can prompt a recognition within the Spanish government that the solution to the Spanish-Catalan conflict is political and not criminal.
Suggested Citation: Antoni Abat i Ninet & Joan Queralt Jiménez, The Scope and Limits of the European Arrest Warrant: The Case of Catalan Exiles, Int’l J. Const. L. Blog, Apr. 20, 2018, at: http://www.iconnectblog.com/2018/04/the-scope-and-limits-of-the-european-arrest-warrant-the-case-of-catalan-exiles
 Commission Notice of 28.9.2017, Handbook of How to Issue and Execute a European Arrest Warrant.