The Strange (German) Case of Mr. Puigdemont’s European Arrest Warrant
The Court of Justice is being kept busy with European arrest warrants lately. First, the Irish courts wondered if they should enforce European arrest warrants from the UK in light of the imminent withdrawal of this country from the EU. Then another Irish court raised its concerns about the enforcement of arrest warrants coming from Poland, in the aftermath of a reform of the Polish judiciary that has put the country on the brink of an Article 7 TEU procedure. Last week, the high court of Schleswig-Holstein ruled on another tricky case by refusing to enforce an arrest warrant launched by the Spanish Supreme Court, requesting the surrender of Carles Puigdemont, Catalonia’s ill-fated former President, in hiding in Belgium since October 2017 in order to escape from the current criminal proceedings taking place in Spain against the instigators of the terrible secessionist acts that took place then.
Brexit, illiberal democracies, and now Catalonia. The European arrest warrant (EAW) is proving to be the laboratory of many of the EU’s current headaches, many of them resulting from a new type of techno-populism based on propaganda, lies, obscure finance and a call on the sacred will of “the people”. Brexit, Poland and Catalonia find their roots in an ill-conceived conception of democracy, in which the people speak, no matter under what circumstances (fake news, lies, on-line ballots, violent-driven pseudo-referendums) and once the people have spoken the Constitution is put on hold in order to give way to the will of the people. British politicians are terrified of questioning Brexit, even of suggesting a second referendum, because of the will of the people. Illiberal democracies like Poland and Hungary are drifting towards autocratic democracies thanks to the will of the people. Catalan authorities decided to repeal the Constitution, the Catalan Statute of Autonomy and any inconvenient judgment of the Spanish Constitutional Court, because of the will of the people.
The will of the people is the revolutionary new normal, with an ability to destroy all the valuable achievements that European democracies have earned since post-war times. It is thus unsurprising that the will of the people has put its eyes now on the EU itself. As an apéritif, the first victim might be the European arrest warrant.
Last week, the Oberlandesgericht of Schleswig-Holstein shocked everybody in Spain (and elsewhere too) by refusing to surrender Mr. Puigdemont on the grounds of rebellion, following the European arrest warrant (EAW) issued by the Spanish Supreme Court on two counts (rebellion and embezzlement). In addition, the German court requested additional information from the Spanish Supreme Court on the other crime presumably committed by Mr. Puigdemont (embezzlement), in order to make a definitive decision on that point of the request.
The decision is astonishing on many grounds, and it is not a surprise that the Spanish Supreme Court and the Prosecutor’s office made it clear, shortly after, that once the final decision of the German court is rendered, the Spanish Court will make a reference to the Court of Justice.
There is an ongoing discussion in Spain on whether the Supreme Court can make such a reference, which, in my opinion, is a non-issue. The requesting court can always make a reference to the Court of Justice, even if the result is an indirect review of the decision of the executing judge. In the context of European judicial cooperation, disagreements between national courts must be resolved by the Court of Justice, as long as the discussion is based on a point of EU law. In this case, the Spanish Supreme Court has good reasons to disagree with the Oberlandesgericht’s interpretation of the EAW Framework Decision, a disagreement which is exclusively based on a question of interpretation of a rule of EU law which, eventually, must be solved by the Court of Justice.
What strikes me about the Puigdemont case is the euphoria and epic cries with which the Oberlandesgericht’s decision has been received by those most close to the Catalan independence movement. These voices have equated the decision to the House of Lords’ judgment in the Pinochet case, or to the US Supreme Court’s decision in Brown versus Board of Education, another example of the contribution of western courts to the defense of human rights.
Nothing is further from the truth.
The Oberlandesgericht’s decision is a flawed ruling that seriously undermines the EAW’s effectiveness, and I would even say its future survival. It is also a manifest example of mistrust between courts of Member States, the type of conduct that destroys the foundations of mutual recognition and judicial cooperation. The fact that the request is coming from a Member State’s highest court and it is being rejected by a regional court does not help in keeping the enthusiasm of Supreme Courts with the Area of Freedom, Security and Justice. Quite the contrary. And we all know that once the Supreme Courts of the Member States rebel against EU law, the countdown of the finale has begun.
First and foremost, there is a procedural flaw in the German court’s decision. In deciding on the provisional measures imposed on Mr. Puigdemont, the Oberlandesgericht rules ad limine that the request of surrender based on the offence of “rebellion” is inadmissible, because the conduct would not amount to a conviction in Germany. However, in Aranyosi and Caldararu (unquoted in the decision), the Court of Justice, sitting in Grand Chamber, clearly stated that when an executing judge has doubts that can lead to a refusal to enforce an EAW, it has a duty to request further information from the issuing judge (see Aranyosi and Caldararu, points 91 to 98). Despite the Court of Justice’s ruling, the Oberlandesgericht has decided unilaterally and ad limine, without giving the chance to the Spanish Supreme Court of enriching the German court’s understanding of the case, that Mr. Puigdemont cannot be surrendered on the grounds of the crime of “rebellion”. And this decision impedes the Spanish Supreme Court from putting Mr. Puigdemont on trial for this offence. The Oberlandesgericht has thus provoked, in a decision ruled in 48 hours and without full knowledge of the facts of the case, Mr. Puigdemont’s acquittal on this ground, which is the most serious of them all. Mr. Puigdemont cannot be put on trial in Spain now for that offence.
But above all, the decision provides a profound misunderstanding of the principle of double incrimination provided in Article 2(4) of the EAW´s Framework Decision. It is true that when an offence is not among those listed in Article 2(2), the enforcement judge must determine “whether the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described”. Thus, the Oberlandesgericht must appreciate if the conduct of Mr. Puigdemont constitutes an offence in Germany (in Germany, the equivalent to “rebellion” is the offence of “high treason”).
However, what the enforcement judge cannot do is go through a full review of the case and rule as if it was ruling on the substance of the case. This is what the Court of Justice has been debating lately in the cases of Grundza and Piotrowski (the latter in Grand Chamber, also ignored by the Oberlandesgericht), coming to the conclusion that the review by the executing judge of the application of legal requirements under its domestic law must be made in abstracto and not in concreto. The executing judge must make sure that the legal requirements under its national law are complied with through an abstract reasoning, but not entering into the details of the specific case, for the simple fact that, otherwise, the executing judge replaces the role of the issuing judge. And it is the issuing judge the one that has the information, the knowledge and the closeness to the facts, witnesses and locations relevant for the criminal proceedings.
I recommend the reader to read the Oberlandesgericht’s ruling, because it is a perfect example of what an enforcement judge is not supposed to do when evaluating if the facts constitute an offence under its domestic law. The decision basically states that the “violence” used in the events of October 2017 did not put the State or the authority of the State at risk, and that the violence used was insufficient to question the State’s ability to impose order. The decision relies on a judgment of the German Supreme Court of the 1950’s, in which the violent protests opposing the enlargement of a runway of the Frankfurt airport were considered not to be sufficiently severe to undermine the State’s ability to impose order. The Oberlandesgericht states that this is an “almost identical case”.
And thus, in 48 hours, ruling ad limine, without requesting further information from the Supreme Court, and on the grounds of a precedent based on an environmental protest of the 1950’s, Mr. Puigdemont has become acquitted of the most serious of the offences for which he would be put on trial before the Spanish Supreme Court.
The case is a good example of a flawed understanding of the Framework Decision and of the case-law of the Court of Justice, because it evidences how catastrophic this approach can be for the EAW as such. For the sake of argument, let’s suppose that Mr. X has a criminal plan that will take place, for example, in France. The first thing he must do is to adapt the plan and his conducts to one of the offences that are not enumerated in the list of Article 2(2) of the Framework Decision. Immediately after committing the offence, Mr. X moves to a nearby Schengen Member State, which is quite an easy thing to do, considering that Schengen provides an area of free movement with no frontier controls. It is important that Mr. X moves to a Schengen country in which the offence is slightly different to the offence under French law. And now, if Mr. X is requested to be surrendered by a French judge, he can be quite assured that nothing of the kind will happen. And if he is lucky, the enforcement judge will act as quickly as the Oberlandesgericht and in only 48 hours, after making a ruling ad limine on the substance of the case with no knowledge of the details nor testimony of the prosecutor, it will have acquitted Mr. X. A new category of free movement of presumed criminals, benefitting from the EAW and Schengen, would have emerged, to the surprise and joy of criminals throughout the EU (and beyond). Once “acquitted” by the executing judge, the French courts cannot put Mr. X on trial for that offence. Mr. X is now free to move, thanks to Schengen, and with the help of the EAW and a law-motivated (but naïve) executing judge.
There are no two identical offences between Member States, all of them have their own nuances, mostly as a result of the case-law of the courts of each Member State. The drafters of the EAW Framework Decision were well aware of this, and that is why they insisted in Article 2(4) that the acts have to constitute an offence, “whatever the constituent elements or however it is described”. This is a way to remind the executing judge that it cannot go into a detailed analysis of the offence in itself, nor of the facts of the case. Otherwise the EAW would become useless, or it would produce an anomalous substitution of roles by turning the executing judge into the judge of the case.
The Court of Justice, sitting in Grand Chamber, has also made this point quite clear when ruling on one of the grounds of non-enforcement of the EAW: that the person concerned is under sixteen years of age. In the case of Piotrowski, when an executing judge questioned if that ground could be applied to other persons older that sixteen, but considered to be in an equivalent position due to their specific psychological features in the law of the executing judge, the Court of Justice argued as follows:
“[…] as an exception to the general rule that a European arrest warrant must be executed, the ground for mandatory non-execution provided for in Article 3(3) of Framework Decision 2002/584 cannot be interpreted as enabling the executing judicial authority to refuse to give effect to such a warrant on the basis of an analysis for which no express provision is made in that article or in any other rule of that framework decision, such as the rule which calls for a determination of whether the additional conditions relating to an assessment based on the circumstances of the individual, to which the prosecution and conviction of a minor are specifically subject under the law of the executing Member State, are met in the present case.
[…] such a determination may cover matters which are, as in the main proceedings, subjective, such as the individual characteristics of the minor concerned and of his family and associates, and his level of maturity, or objective, such as reoffending or whether youth protection measures have previously been adopted, which would in fact amount to a substantive re-examination of the analysis previously conducted in connection with the judicial decision adopted in the issuing Member State, which forms the basis of the European arrest warrant. As the Advocate General observed in point 56 of his Opinion, such a re-examination would infringe and render ineffective the principle of mutual recognition, which implies that there is mutual trust as to the fact that each Member State accepts the application of the criminal law in force in the other Member States, even though the implementation of its own national law might produce a different outcome, and does not therefore allow the executing judicial authority to substitute its own assessment of the criminal responsibility of the minor who is the subject of a European arrest warrant for that previously carried out in the issuing Member State in connection with the judicial decision on which the warrant is based.”
It seems clear to me that the Court of Justice is very much worried about the enlargement of powers of executing judges, and that includes, of course, the powers to determine that certain facts “constitute an offence” in the executing Member State. If the executing judge is to undergo a detailed analysis of the facts of the case without having sufficient knowledge of the relevant facts, this, in the words of the Court of Justice (and AG Bot, who is well informed on these issues) would “allow [it] to substitute its own assessment […] for that previously carried out in the issuing Member State in connection with the judicial on which the warrant is based”.
It seems obvious to me that the Oberlandesgericht is not in a position to rule on the substance of the case, and the best proof of this is the way in which it compares Mr. Puigdemont with the leader of an environmental protest in the Frankfurt airport.
Mr Puigdemont was the President of an Autonomous Community in Spain, with full powers and command over all the departments of the regional administration, including the Police, which, in Catalonia, is fully autonomous and replaces in its territory the National Police (this only happens in the Basque Country and Catalonia). After voting in the Catalan Parliament a Referendum Bill that precluded the opposition of submitting amendments or having a debate in the Catalan Parliament, and after disregarding the judgments of the Constitutional Court declaring the Referendum Act (once voted) unconstitutional, Mr. Puigdemont called a referendum on 1 October 2017. This referendum had no electoral guarantees and was facilitated by the inaction of the Catalan Police, under the orders of the Catalan Minister of the Interior, following instructions of the Catalan Government (chaired by Mr. Puigdemont). A few days before the referendum took place, the Guardia Civil (after the High Court of Catalonia decided not to rely on the Catalan Police’s authority for obvious reasons) and the High Court’s staff were mass-assaulted while carrying a search in the Catalan Ministry of the Economy, in a pursuit for documents that proved that the referendum had been financed with public funds (another offence, embezzlement, on which the Oberlandesgericht has been requested to enforce the EAW). Special forces had to evacuate the agents of the Guardia Civil and the High Court through the roof-tops of the Ministry’s premises, while demonstrators vandalized the vehicles of the Guardia Civil parked outside the building. Many of the remains of these vehicles were found several hours later in Barcelona’s cemetery of Montjuïc (a nice final message from the demonstrators to the Guardia Civil).
A week later, on the day of the so-called referendum, police charges of the Guardia Civil took place, with the result of the awful images we all saw that day in the news. The Catalan Police refused to close down the electoral colleges (despite the Constitutional Court’s judgment ruling that the referendum was illegal, followed by an instruction of the High Court of Catalonia ordering all Police authorities to prevent it from happening) and the Guardia Civil was left all alone to enforce it. As a result of the Guardia Civil’s action, four civilians were hospitalized (one of them suffered a heart attack). In contrast, four-hundred and thirty-one police officers suffered injuries. Indeed, four civilians were hospitalized, but international media (the BBC and the Washington Post, among others) have confirmed that there was a spectacular use of fake news on social media, which manipulated and magnified the violence actually exerted on that day by the Guardia Civil.
On 10 October 2017, the Catalan Parliament, with Mr. Puigdemont among its leading members, declared the independence of Catalonia, relying on the “will of the people” after the results of the so-called referendum. Shortly before, Catalonia’s main credit institutions, CaixaBank and Banco de Sabadell, changed seats outside of Catalonia (to Valencia and Alicante, respectively), to calm investor and depositor unrest. Since late September until December 2017, a total of 3217 companies have changed seats from Catalonia to other parts of Spain. The Bank of Spain has confirmed in March 2018 that, since October 2017, 31.400 million euros in deposit accounts have fled from credit institution in Catalan branches.
These facts prove that the perception in Spain and in Catalonia was not that Mr. Puigdemont was leading a peaceful movement, similar to an environmental protest. As Joseph Weiler has recently argued, Mr. Puigdemont is no Nelson Mandela nor a Gandhi, quite the contrary. Mr. Puigdemont was the leader of a well-orchestrated political movement of break-up of a State, that has put a Member State of the EU in an untenable position, close to the brink of secession, with the assistance of the entire Catalan administrative machinery (including its Police and a well-dosed budget), in an effort to divert the attention of its voters from their real concerns (unemployment, austerity, corruption), of which the Catalan government is, of course, co-responsible.
A majority of Catalans see Mr. Puigdemont in the same way (there is no pro-independence majority in Catalonia, it’s only thanks to the electoral rules that there is a majority of pro-independence seats in the Catalan Parliament). And I know of no fellow Spaniard outside of Catalonia that considers Mr. Puigdemont a peaceful protester. It is also very telling that the majority of Basque nationalists disagree completely with the way in which Mr. Puigdemont handled the events in Catalonia.
But the Oberlandesgericht of Schleswig-Holstein did not see it this way, ruling in 48 hours, inadmitting the EAW ad limine, comparing Mr. Puigdemont with an environmental protester, irrespective of whatever other facts might have been relevant and which the Spanish Supreme Court could have provided, and ignoring the case-law of the Court of Justice of the past fifteen years.
The decision is good evidence that a strict scrutiny of the principle of double incrimination when enforcing EAWs is a questionable practice. The Spanish Supreme Court has now the perfect excuse to cry foul and become an EAW skeptic and, who knows, maybe a euro-skeptic court thereafter. The judge of the Spanish Supreme Court that issued the EAW is currently under Police protection and his summer house in Catalonia was vandalized two weeks ago, provoking a reaction from the European Association of Judges in support of the judge. Seeing Mr. Puigdemont (the leader of the revolt) turned into the heroic victim, and the law-enforcing judge as the villain, with the help of a regional court of another Member State, are the kind of situations that turn a Court, particularly a Supreme Court, into a believer or a disbeliever in integration.
Or it can rely on the tools of the Treaty and make a reference to the Court of Justice, so that the Luxembourg court fixes this terrible and potentially devastating mistake.
This article has been previously posted on the author’s blog Despite Our Differences and is republished here with kind permission.
What additional information could the Spanish court have given regarding the use of violence? I think a request for additional information can only be called for if there is a potential to get anything relevant. If the warrant already gave all the needed information, why ask for more?
And that the federal court judgement the OLG Schleswig relied upon was from 1950 doesn’t say much. The understanding of the term violence and the law about high treason hasn’t changed much in that regard since then. That may be surprising, but that doesn’t make it wrong.
The Oberlandesgericht did not believe that Mr. Puigdemont’s actions were enough to force the will of the State because it did not properly understand the circumstances that took place in September/October in Catalonia. In that case, the duty of the court was to refer back to the Supreme Court its doubts. An executing judge does not receive a lot of information (it has to be translated and thus judges tend to be concise and go to the point, thus the duty to refer back in case of doubt).
It is only my personal experience, but I can state that on the eve of the declaration of independence many lawyers in Catalonia were unable to assure their clients that, on the day after, the Spanish tax and Social Security laws would apply in Catalonia. Do you think that a lawyer has such doubts and inform his client in such terms simply for the intellectual pleasure of doing a hypothetical exercise, or because there was a genuine feeling in Catalonia, among informed citizens, that on the 2 October 2017 the Spanish State could lose control over the territory?
That is exactly what the Supreme Court could have explained to the Oberlandesgericht in more detail, but the latter, in all its wisdom, and in 48 hours, knew better.
I fully understand the writer’s position and his arguments. But the Puigdemont case never was a legal case only – it is a political case, and it should be solved between the Spanish government and the Catalan regional government. In addition, Pablo Llarena himself showed a remarkable enthusiasm with extending the Spanish rebellion paragraph to possible violence of others – never done before in Spain. In my opionion, Spain may go to European Court of Justice, but they will lose this case.
Therefore, your point is that the Court of Justice will dismiss the Supreme Court’s legal arguments because this is a political case. Interesting.
I also believe that the Catalan issue is political, but unfortunately Mr. Puigdemont and his Government decided to unilaterally declare the independence of a part of Spain, causing severe damage (not only institutional and political, also economic and social), fracturing Catalan society like it was never fractured before, and provoking a constitutional crisis never seen since the days of the transition to democracy in the 1970’s. Not bad for a “peaceful and democratic movement”.
This has led Mr. Puigdemont and other members of his Government to be subject to criminal proceeding, of which the last word will not be the Supreme Court’s, but Strasbourg’s (many tend to forget that, Spain is a rule of law, but it is also subject to external human rights control by the European Court of Human Rights, a point that Mr. Puigdemont willingly ignores when he calls himself a political prisoner).
In the meantime, the Oberlandesgericht has ruled in a way that is inconsistent with the EAW Framework Decision, that’s all. Whether we like it or not, it’s not about courts supporting political causes, it’s simply about courts implementing rules. The Court of Justice should amend a decision that is legally wrong, that’s all.
A different story is whether Spain will collectively manage to solve the Catalan issue, which is a complex one and requires time and political skill (not much of that on both sides for the time being, I’m afraid). But that’s not for the Supreme Court, the Oberlandesgericht or the Court of Justice to solve. It’s for the Spanish people, which are much more sensible and reasonable than many of their political representatives to date. Trust me on this.
I guess that Spaniards proved the world in the 1970’s how to do an exemplary peaceful transition from a dictatorship to democracy. I’m sure we can manage something as complex as that in the present times, but don’t be mistaken: Spain is not a autocratic dictatorship nor a failed State. And the more that this message is being circulated abroad, the higher the chances that the Catalan problem will simply turn for the worst.
It is understandable that the author, being Spanish, has strong feelings about this case. This once again demonstrates why (as someone wrote in a blog post I can’t find right this minute) it isn’t the worst thing that this case is currently before a court in a country that has “no dog in this fight”, to put it colloquially.
I have no doubt that many Spanish people felt aggrieved in their sense of national pride and/or their national identity by the defendant’s actions to the point where they experienced those actions as a mode of violence, but that does not change the fact that the suggestion that violence was used by the defendant is patently absurd, and that no amount of clarification from Madrid can change that. And, like Leser said above, it is not obvious how an obligation to seek clarification can exist where the response can’t possibly have any influence on the decision.
I suppose the only option open to the Spanish authorities is to once again drop the EAW, and wait until the defendant sets foot in an even more sympathetic jurisdiction.
“These facts prove that the perception in Spain and in Catalonia was not that Mr. Puigdemont was leading a peaceful movement, similar to an environmental protest.”
Bestätigt Herr Sarmiento hier nicht unfreiwillig die These von Ulrich Preuß (https://staging.verfassungsblog.de/spanische-tragoedie/), wonach auf Seiten der spanischen Justiz/Jurisprudenz das Merkmal der Gewalt im Rebellionstatbestand kaum überhaupt noch für der Prüfung bedürftig gehalten wird, weil die Anmaßung einer Volkssouveränität durch die katalanischen Institutionen für sich genommen schon als gewalttätig gewertet wird? Nüchtern und von außen betrachtet ist der spanische Haftbefehl beängstigend unrechtsstaatlich und die noch nicht in einem Schema von Gut und Böse denkenden Anhänger der Verfassungsstaatlichkeit in Spanien sollten es als Chance begreifen, dass ein ausländisches Gericht (nebenbei: in Belgien sah man es wohl nicht ganz anders als jetzt in Deutschland) sich in einer verfahrenen Situation einmischt, aus der die Konfliktparteien selbst wohl keinen vernünftigen Ausweg mehr finden.
First of all, it would be helpful to provide a link to the full text of the 16-page order – https://www.schleswig-holstein.de/DE/Justiz/justizministerialblatt/AktuelleEntscheidungen/_documents/Auslieferung.pdf?__blob=publicationFile&v=2 – if one recommends readers to review it.
I am not convinced by the author’s concerns about the allegation of rebellion. Why does it even matter if there is a comparable crime under Spanish law? The OLG Schleswig specifically stated that it does not matter (p. 6), and the author here does not cite to any provision that would say otherwise. The question is whether “THE ACTS for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State” (Art. 2(2) Framework ecision; emphasis added). All the arguments here and in other places about the offenses under Spanish and German law being similar in nature strike me as entirely irrelevant. Where does that even come from?
The Piotrowski case appears easily distinguishable. Fist, it concerns a different provision of the Framework Decision, so I wonder why the author would be surprised it isn’t cited in the OLG Schleswig’s order. Second, the provision concerned – Art. 3(3) Framework Decision, which discusses instances where the extradition shall be refused due to that person’s age – is an exception to the principle laid down in Art. 1(2) Framework Decision, according to which “Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition”. This is of paramount importance as this was the key to the CJEU’s decision: Because Art. 3(3) is an exception to the rule, it had to be narrowly construed (recital 47-48). But here what is in doubt is precisely whether the alleged act is “mutually recognized” in first place. In other words, we are not discussing the interpretation of an exception to the principle; we are discussing whether we are within the scope of the principle.
Finally, the author’s claim that the OLG Schleswig went through “a full review of the case and rule as if it was ruling on the substance of the case”, is plainly wrong. The Court assumed the facts alleged in the warrant as true, going so far as to construe a hypothetical case of a secessionist movement within a German state with the same features (p. 7). That is a far cry from a de novo review.
It is obvious that for many observers this is not a legal case, but a political platform to show solidarity with a political movement (of which many are ignorant) and nudge the Spanish State into reaching a political agreement. That’s all very well, but I think that it keeps missing the point.
The question being raised here is simply one of interpretation of a rule of a Framework Decision which, we like it or not, needs to be properly interpreted. It is strange that Spanish lawyers, with their ability to find loopholes in the rules, have to explain to their European colleagues that political conflicts have, at times (and alas), to be solved through jurisdictional means subject to rules of law. Mr. Puigdemont’s case is only a minor fragment of a much bigger political issue, but it is a jurisdictional fragment, not political.
The only contribution of a German or a Belgian court to the Catalan conflict should be, if we really are within a common area of security and justice, to cooperate loyally in enforcing correctly EU law. Otherwise, as I explain in the post, a Member State like Spain, subject to a terrible constitutional crisis involving the commission of several criminal offences that require enforcing an arrest warrant, could simply decide to step out of the Area of Freedom, Security and Justice. Do not underestimate the consequences of a lack of European solidarity with Spain’s handling of the crisis. Another traditionally pro-European Member State could be on its way to turn against integration, in the same way that Italy has now.
And of course, it could be argued that if a German court was overruled and forced to act differently as the Oberlandesgericht did, Germany could decide to step out too.
But then we will have ignited the fire that destroys judicial cooperation and mutual trust entirely, after many years of hard work and valuable contributions from all Member States and national jurisdictions. Is Mr. Puigdemont really worth it?
For those of you who show solidarity with this supposedly peaceful movement, think twice: it is not peaceful, it is not democratic, and it is not foreign to the populist rage that is destabilizing our democracies. Think twice before giving a helping hand.
Far be it for me to risk having this comment thread devolve into a shouting match, but it strikes me as particularly misguided that you of all people would accuse the other commenters here of putting politics over the law. Simply put, the only one looking for loopholes here is you.
With all due respect, none of us have a dog in this fight as far as I can tell. This being a law blog, it stands to reason that it would attract readers who generally prefer if the rule of law and human rights are somewhat protected, but otherwise the issues you raised are – again based on what everyone has written – of purely academic interest to everyone but you.
And given how many commenters have specifically cited their sources, and given how many articles have already been published on this blog about Catalunya, it seems particularly unfortunate that you should accuse your interlocutors of being ignorant of the facts.
Dear Martin (if I may),
My apologies if my comments have hurt anyone’s feelings, but my point is still quite straight-forward and strictly attached to a point of interpretation of the law. I think that Bernardino Correa’s comment below provides additional arguments of the legal flaws of the Oberstergerichtshof decision. That’s the point of this discussion, I agree.
However, referring to the publication of blog posts on Catalonia does not turn any of the readers into insightful and knowledgeable experts of the Catalan crisis. I think you would agree that my readings of The Economist on the latest developments of German trade does not turn me into an expert on the matter. On the contrary, I would be rather ignorant on the topic, but interested as a reader.
And that is the unfortunate result of this sad saga: we have reached a point in which the Member State that has been seriously attacked from its insides is now being pictured as an autocratic dictatorship closer to Franco’s regime than to the modern democracy that Spain actually is. Any assertion of the kind is the result of sheer ignorance. I am not saying that you share that opinion, but unfortunately it is present in many of the opinions appearing lately in the international press.
How could foreign observers not find it puzzling (or even frightening) that within Spanish media or academia only small minorities seem to uphold constitutionalism in the light of the obvious autocratic tendencies in the Spanish criminal justice system? In a country with a functioning civil society, people like Joaquín Urias would not be isolated voices of reason amid an agitated crowd of conformist intellectuals, for which the nationalist end (protecting the unity of the ever so glorious Spanish nation) always justifies the means.
In forty years Spain has been declared in violation of the European Court of Human Rigths in 157 times.
997 in the case of France (signatory for a longer time, but quand même…), 386 in the case of Austria (considerably smaller country) and 1145 of Poland (not a bad score!).
The closest country to Spain in terms of time and number of violations in the statistics is… Finland.
Where’s the agitated crowd of Spanish nationalists in all this?
The sources, of course: https://www.echr.coe.int/Documents/Overview_19592017_ENG.pdf
I too was taken aback at reading the Oberlandesgericht Schleswig-Holstein’s decision concerning, inter alia, Mr Puigdemont’s release to Spain on charges of rebellion. My impression was and remains the same: appallingly amateurish. So far, my provisional conclusion is that it was not written by a professional judge but by some intern.
Making a ruling on such complex matters in less than two days, without any attempt made at obtaining additional information from the issuing judge (incidentally not some magistrate’s court but the Tribunal Supremo, that is the highest judicial authority in the realm), is tantamount to a judicial insult. Especially, since the bizarre German system does not allow for a review of the contested decision (why?). But, perhaps, the decision constitutes an even greater insult to the competence and reliability of the executing court and to the German legal system as a whole.
There’s indeed no indication in the judgment that the Oberlandesgericht had any understanding of the European Arrest Warrant. The decision hardly cites any authority. It is devoid of any reference whatsoever to the case-law of the European Court of Justice (scarce but conclusive as it is). Most awkwardly, it seeks support in an academic work co-authored by the defendant’s legal counsel!!! (have these judges ever heard from the subjective perception of impartiality?)
The decision solely and completely relies on the Frankfurt Airport Extension precedent, which dates back to the early 80’s. According to the OLG this all-illuminating precedent “is not only comparable but in many aspects identical” to the case in issue. Utter nonsense! Although not an expert in German criminal law, I feel quite comfortable to raise the following issues:
The Frankfurt Airport case involved, not article 81 StGB (high treason), but article 105 StGB (coercion of a constitutional institution). The OLG seems to have seen it fit to transpose the findings from a different crime, without further ado, based only on the identical wording of the critical excerpt (“mit Gewalt oder durch Drohung mit Gewalt“). In so doing, it has grossly overseen the possible difference in nature between these two crimes.
Coercion (105 StGB) concerns itself with violence exercised with a view to force an institution into adopting a specific policy option. But this policy option is always a legal one (within the institution’s powers -“Befugnisse”-). In the Frankfurt Airport case, the Land Hesse had to decide whether or not to extend an airport’s runways, a decision which lay clearly within its powers. High treason (81 StGB), on the other hand, deals with a form of coercion whose aim is the very existence of the Federal Republic, an aim which is obviously illegal and, moreover, inconstitucional. It can at least be argued that the former’s primary aim is public order and the latter’s the preservation of constitutional order and that ‘violence’ should therefore be interpreted in consequence and autonomously. I’m not saying a different threshold should result, only that it may.
The OLG has also squarely disregarded that in the Frankfurt Airport case the violence was committed by and in the name of private citizens (Bürgerinitiative), whereas in the Puigdemont case the perpetrator was the highest representative of the State’s authority in the regio. Equally the OLG has not considered whether the alleged connivance of the regional police in the rebellion, as the issuing judge suggests in his decision, could serve to qualify the nature of the violence.
Such fundamental differences in fact and in law should have, at the very least, moved the OLG to exercise considerable judicial restraint. As it happened, it did exactly the opposite.
At any rate, the test applied by the OLG in the context of 105 StGB, whereby the requisite threshold of ‘violence’ is one that would force the institution to effectively submit to the agitators’ demands (“geeignet … den … Willen des Verfassungsorgans zu beugen“), can hardly be transposed to 81 StGB without producing intolerable results. In the case at issue, the OLG refused to acknowledge that the violence threshold was attained because, “as shown by the course of history” (“wie auch der Lauf der Geschichte zeigt“), it ultimately failed to bring about the perpetrators’ objectives, namely the independence of Catalonia. If such should be the appropriate test, Article 81 StGB, which seeks to protect the very existence of the Federal Republic (“den Bestand der Bundesrepublik“), could only be applied if, as history would in due course show, the degree of violence effectively exercised was such as to destroy the Federal Republic. I very much doubt that the Bundesgerichtshof would accept this type of preposterous reasoning. In fact, if the violence required by article 81 was of such consequence as to blow up the Republic, there may very well not be any Bundesgerichtshof to ask the question.
Quite contrary to the OLG’s hurried and unsupported assumption, the issue of the requisite degree of violence under Article 81 StGB seems far from being “elucidated in the highest instances” (“höchstrichterlich geklärt“). I fully agree with you that the OLG should have abstained from ruling on the merits of the case (thereby with the click of a thumb effectively acquitting Puigdemont for the crime of rebellion), but all the more so when such an ad limine decision is based on a (final!) interpretation of national law that is so shaky, incomplete and unconvincing.
I am taken aback by your comment. It seems to me that you misjudge the decision in form and content by expecting to find things which are not common in German court decisions. (My apologies if I am mistaken here.)
You say the decision does not cite authority – but that is neither necessary nor overly common in German court decisions, except maybe for the highest courts (especially the BVerfG likes to quote its own previous decisions).
The OLG refers to legal commentaries – which are of high importance in German law – in certain matters. It also discusses the relevant decisions of the BGH quite thoroughly, the line of argument is – in my view – stringent and convincing. The decision fulfills all requirements for a decision of a German court. I have no experience how this matters are dealt with in Spain, but for a German court, this decision does not strike me as unusual in form and content.
That one of the defendant’s counsels has written the part of what you describe as an “academic work” (legal commentaries are at least as relevant for legal cases as decisions of other courts are, if not more) is utterly irrelevant. The commentary has certainly been published long before the author started to represent the defendant. Judges can be trusted to be able to differenciate between a legal brief regarding a brief for a specific case and a commentary which is an abstract discussion of the article of the law. It only shows that the defendant is represented by a lawyer who seems to know what he is doing.
Also, the issues raised with the interpretation of §81 StGB by the OLG miss the point:
The OLG has not “seen it fit to transpose” the definition of violence. It has explicitly stated that the BGH, in its decision regarding the Frankfurt Case, made a connection between the definition of violence in §§105 and 81 – which is, that the definition of violence in §105 is to be interpreted “in dependence upon the definition of violence in the crime of high treason” (in Anlehnung an den Gewaltbegriff im Tatbestand des Hochverrats zu bestimmen, BGHSt 32, 165, Rn. 13), because the BGH sees both crimes as “closely related” (eng miteinander verwand).
The OLG not only recites the BGH judgement, regarding the definition of violence and the connection between §81 and §105, it uses the exact language of the BGH judgement while explaining the defintion of violence and the relation between both crimes. The BGH could of course come to another conclusion in the reasoning developed therefrom, but this reasoning seems to me what a german lawyer would call defensible (vertretbar) and in light of the Frankfurt judgement of the BGH a correct etrapolation of the judgement of the BGH. If there has not been some doctrinal change in this matters (which does not seem likely), it doesn’t strike me as wrong.
So, as the OLG says, the matter is indeed if not elucidated, than at least soundly based on BGH jurisprudence.
I cannot assess possible problems with the Framework Decision, but regarding to its form and content regarding German law, there is nothing “appallingly amateurish” in it, and the commentator above seems to be mistaken or have false expectation of an arrest warrant issued by a German court.
And, finally: I find the argument made by the author as well as by the commentator above that the decision of the OLG would be an “insult” to the Tribunal Supremo somewhere between absurd and risible, to put it frankly. If the highest spanish judged feel insulted by a decision of the competent court of another country, they maybe shouldn’t have involved themselves in a matter in which it is guaranteed that it would not be decided by the highest court of another country. Although I trust that the Tribunal Supremo does not feel “insulted” by a procedure according to the law of the respective country and know that jurisdiction trumps equality of rank of the courts.
And, a personal disclaimer: In my personal opinion, Puigdemont should already stand in front of a Spanish judge for trial, and the EAW should be much more streamlined in General. But it isn’t, and the relevant law has to be followed.
Thank you wholeheartedly for sharing your views. You seem to be one of the few commentators here who has actually read the OLG ruling!
With all due respect, however, I’m permitted to think that you may have misunderstood to some extent the object of my comment by refuting different arguments individually and also selectively. My basic point was that the matter of whether Mr Puigdemont should be handed over to Spain on charges of rebellion deserved a much more careful examination than the one expedited by the OLG in less than two days. It is a poorly reasoned decision however you look at it. The importance of the case, the at variance position of the Generalanwaltschft, the inconclusive character of the case-law relied upon and the sheer lack of necessity for such a far reaching pronouncement at this stage of the proceedings smack of arrogance or incompetence, whatever you find less offensive. I chose the latter.
The decision does not cite any relevant authority (with the exception of the Frankfurt Airport case, which I’ll come back to below). You say that this is not necessary or overly uncommon. That’s your perception. Again, in such a dubious case and having regard to the fact that the ruling is not open to challenge, I feel that it’s in the best interests of justice to issue a decision as convincing and armoured as possible. If relying on various authorities (including, incidentally, perhaps the ECJ!) is not overly common in Germany, this is definitely a case where it should have been. Failing that, my impression is that the OLG didn’t add any further authority because there were none or out of ignorance.
Precisely when your authority record is so dismal, it is striking that one of the very few privileged sources of support should come from a book co-authored by the defendant’s legal counsel. The ECHR has repeatedly stated that courts should exercise utmost discretion to avoid giving the impression of bias. I’m not implying that this detail is in itself a proof of partiality but it is very inelegant. A court must not only be virtuous but must appear to be so. It only adds to the amateurish flavour.
I agree with you that the OLG has referred to the connection made by the BGH between §§ 105 and 81 StGB in the Frankfurt Airport case. But you may agree with me that such an ‘Anlehnung’ all it does is beg the question. The BGH In that case did not elaborate on this “enge Verwandschaft” in a manner that could be relevant to this case. It almost did not elaborate at all, probably because it didn’t need to. I find a fundamental difference in the circumstance that § 105 deals with coercion within legal options and § 81 foresees a situation radically illegal and unconstitutional. This is no minor difference, I hope you’ll agree. Also, the fact that the perpetrator is a State authority, acting with the connivance of the regional police, in defiance of precise courts’ orders (a part of the State rebelling against other branches of the State) should have induced the OLG to prudence. As the BGH clearly states, the notion of violence cannot be interpreted in abstracto but having regard to the particular circumstances of the case (“der Vorgang ist vielmehr im Zusammenhang mit dem vom Tatbestand vorausgesetzten Ziel des Handelns und in seinem Verhältnis zu den Personen zu beurteilen, die betroffen oder beeinflußt werden sollen”). In my view, the OLG failed to see the abysmal differences between the Frankfurt Airport ‘Krawalle’ and a collectively and carefully orchestrated insurrection aiming to declare the independence of Catalonia.
Most tellingly, after accepting the BGH’s necessary threshold of violence, under § 105, as to one that would lead to the capitulation of the constitutional institution to the agitators’ demands (“diese Ausschreitungen somit nur dann Gewalt im Sinne des § 105 StGB, wenn der von ihnen ausgehende Druck einen solchen Grad erreicht, daß sich eine verantwortungsbewußte Regierung zur Kapitulation vor der Forderung der Gewalttäter gezwungen sehen kann”), the OLG transposes it, rather clumsily in my view, to the events in Catalonia. It did not reach the required level because Catalonia did not become independent. Therefore, because the State was able to put an end to the secession attempt, because the masses did not invade the streets, because the solemn Declaration of Independence did not get any international recognition, that qualifies the level of violence retroactively? I.e., if Catalonia had become independent the violent used would have morphed into more serious? Reassure me, please, that you don’t think this way of reasoning is legally sound.
Finally, the OLG made no attempt at “trying“ this very test within the internal context of § 81 StGB. And you have not provided any enlightenment on this. Would the law in Germany require for a coup d’Etat to be punishable that it was of such violence as to be successful (Kapitulation vor der Forderung der Gewalttäter)? Really? Some issues no need much legal thinking but a tad of common sense.
Thank your for you replay!
You are clearly right that the OLG could have (an may be should have) be more thorough in explaining its reasoning or underlining it, but one has to keep in mind that this is first and foremost (only) an arrest warrant to keep Mr Puigdemont unter arrest (but free it on bail). Until this warrant issued, there was only a provisional “Festhalteanordnung”, and the German law requires such warrants to be issued without delay (unverzüglich).
So the OLG – not being required to do give a detailed reasoning – did not have time to get an extensive reasoning for its decision about the arrest warrant, neither for an in depth examination of the case, an oral argument of all the other proceedings required by the IRG and the Framework Decision. It had to decide on the prima facie information provided by the EAW how to proceed with the arrest warrant.
The substantive parts of the proceedings are yet to come. Hence, I am quite confident that we will get a longer and more detailed reasoning in the final opinion on the permissibility of the extradition (Entscheidung über die Zulässigkeit der Auslieferung according to §32 IRG) to Spain, because it most likely will be disputed at the BVerfG and/or the ECJ and/or the ECHR.
Regarding the threshold for violence for §81, the reasoning is indeed not as convincing and clear as it should (and in the final decision hopefully will) be, but – in my view – sufficient for the summary and urgent examination necessary for the arrest warrant.
It nonetheless seems unquestionable that the “hightened definiton of violence” will be one – or the – point of contention for the assessment of §81. I agree with you that the BGH decision is quite sparse in regard to §81, but – as you mentioned – §81 was not the crime in question, so there was no reason for long treatises on that matter. The OLG will need to be much more precise on this issue in its final ruling.
But I have to admit, in my first reading of the Frankfurt decision, I had a moment where I thought “So, is it only high treason if it is sucessful? That cannot be.” (and thereby ignore that it may very well be, because if it is the law, is does not necessary need to make sense…)
However, I would think that this would be an improper interpretation, but I can assure you only so much: I think the result – i.e. Catalonia not becoming independent, and not nearly suceeding in doing so – could and will be used to qualify the amount of violence, as in “As long as there was no real danger of the spanish national government (with the spanish military and the national police forces) losing the control over Catalonia, it was not enough violence.”
That interpretation honestly seems quite strict, but in light of the very narrow interpretation required for §81 StGB, that would be a possible transposition of the Frankfurt decision.
However, this may be only one point of contention, another is: Is Mr Puigdemont responsible for what violence has happened in Catalonia, and if so, to which degree? It is obviously not the case that he was lead a mob trying to bring down the Spanish state, nor was he involved in violence himself, so there must be another connection, obviously due to his position as a political leader of the autonomy government of Catalonia. I honestly have no idea what – if any – the established rules for that in §81 are, and I am not sure if this has ever been properly defined (yet). Because if one cannot establish a responsibility of Mr Puigdemont for the violence in the first place, the question of “was there enough violence” is moot.
With this two major problems in the definition of §81 StGB, I would not be suprised if either the OLG or the Generalstaatsanwaltschaft call upon the BGH to define this issues. This is possible if these issues constitute “legal questions of fundamental importance” (Rechtsfragen von grundlegender Bedeutung), according to §42 IRG.
I expect that we will get a lot more interpretation of the definition of violence in the crime of High Treason in Germany from the OLG and possibly from the BGH, thanks to the Catalonia independence movement… and I expect that the final decision in this case may be issued a long time after the 60 days required for normal cases in the Framework Decision.
Thank you very much, Chris, for your very informative contribution and for your conciliatory tone, at odds with my somewhat provocative style. I was perhaps misled by the very definite language used in the order as to the qualification of the alleged offence. There was no caveat in the form of ‘the Court provisionally finds…”. I also had no idea that there was a possibility of bringing the case to the BGH at a later stage. I stand corrected.
I too expect the extent of violence needed under art 81 to be reformulated at some stage.
To be quite fair, before the order was issued, I also personally believed that the EAW’s weakest point might be the establishment of a link of personal responsibility on the part of Mr Puigdemont for the violence occurred, but this the OLG accepted without any discussion. To my surprise and disappointment.
Daniel Sarmiento has dealt with all the issues arising from the Frame Decision and I fully agree with him on that. Let’s see what the next steps bring us. It promises some excitement.
The Schleswig Court made a political statement, that was totally unnecassary for the case. The discussion of the violence or it missing is a political statement, since it could just have determined, that a rebellion in spain isn’t a high treason against the very existence of the Federal Republic of Germany. Neither Germany nor a Republic. If there was a violent crime done by Puigdemont, Spain could ask on grounds of similar violence crime laws.
The German court was right and the EAW is a problematic system whereby rights of the suspect were risked in the name of efficiency. However, the last years showed that problems with definition of judicial authority (Article 6 FD 2002/584/JHA), lack of an explicit fundamental rights non-recognition ground (without a high standard common harmonisation) – let me remind you about the problem with prison conditions), lack of minimum common legal standards (at least in most EU Member States it is not normal to be able to limit right to a lawyer for terrorist suspects as is in the case of Spain), the problems with primacy of EU law in comparison with higher constitutional standards (Solange, Melloni, Taricco, etc.),or streching abolition of dual criminality to a-typical definitions, etc., cannot be put under the carpet. The German Court decided correctly and in line with fundamental rights (for the moment). I might politically agree or disagree with a judicial decisions, but from a rule of law perspective the German court was right!
There is not a single reference to human rights or to the rule of law in the Oberstergericht’s reasoning. It’s a strictly procedural decision that interprets the Framework Decision with not a single reference to the Court of Justice’s case-law, neither on the EAW nor on EU fundamental rights. I don’t believe that that makes the decision correct from a rule of law perspective, quite the contrary.
Dear Mr. Sarmiento,
this is one of the most unsettling pieces of legal reasoning I have read in a long time.
Let me start by quoting a few gems to catch the mood – before going into a examination of the actual legal parts in between:
Let me also precede my examination of your arguments by saying that I had read your article from 9 september 2017 (https://staging.verfassungsblog.de/the-eu-and-the-catalan-crisis/) and that I could – and can – subscribe to most of what you said in it. It is also my opinion that the steps taken by the Catalan independence movement (known as the “procès” – not to be confused with the Kafka novel) are a flatly unacceptable breach of the constitutional order of a democratic society. The “Rechtsstaat” (estado de derecho/state governed by the rule of law) has the right and the duty to take all appropriate and legal actions to counter such an attack (you can read, if you want, my musings from 8 october on the legality and legitimacy of the procès: https://staging.verfassungsblog.de/the-spanish-constitutional-crisis-law-legitimacy-and-popular-sovereignty-in-question/#comments). I find the handling of the crisis by the Rajoy government especially praiseworthy (some details like the police deployment in the lead-up to 1 october are debatable; the terrible excesses of police force that happened that day I don’t attribute to the government but to mistakes by local police leaders that where amended by the government as soon as they transpired).
But one thing is constitutional law, policing and politics and another is criminal law. The awareness of the fundamental difference between these repressive approaches is what is so painfully missing right now in the heated siege climate that has taken hold of a great part of the Spanish society. I find it ok to use terms like coup as a way to express political anger about the (past and ongoing) events. Such language can serve to make a point. The late Prof. Joachim Vogel once used the word “Staatsstreich” to criticize judgments by the ECJ (http://www.strafverteidiger-stv.de/system/files/users/user5/StV-05-2013_Editorial.pdf). The current situation in Catalonia is, of course, a most serious case, but the criteria of criminal law must not be mixed up with political necessities in a constitutional state of exception. Over the last couple of months we have seen in Spain’s leading circles a growing psychological need that the criminal conviction must match the political vocabulary. Ever since the late General Attorney had the idea of activating the “rebellion” provision its peculiar shine has increased and cast a spell on a large part of the public opinion. Now more and more there is a sentiment that anything below this magic “rebellion” label is an unsufficient description of this whole situation. I find that some expressions in your article reflect this sentiment.
These days Spanish newspapers keep publishing a stream of articles by law profesors and other legal professionals who apparently have never dabbled in extradition law but have transformed over night into experts in this field and declare authoritatively that the OLG decision is a blatant breach of the EAW system. Within this narrative we see some recurrent themes like: It’s an outrage that a provincial court defies the finding of a Supreme Court (ignoring that the OLG is not a provincial court but a superior court and functionally equivalent to the Spanish Supreme Court in that it’s a court of “cassation” [Revision] in many criminal cases); it’s an outrage that a court 2000 km away from the events thinks it knows the facts better (which is especially juicy since two Madrid courts 600 km away from the facts have taken the procedures out of the hands of the local judiciary, through most dubious interpretations of the laws governing their jurisdiction).
I don’t mean to question your overall expertise in the EAW system and extradition law in general, but your claim that the OLG has deviated from the settled understanding of the dual criminality rule (Article 2(4) of the Framework Decision) is simply not true. I’ll give you that a new interpretation more in line with your vision is possible (although not likely), initiated by some innovative/activist court via the preliminary ruling procedure. But unlike you imply here (and said explicitly elsewhere, http://agendapublica.elperiodico.com/una-prejudicial-factible-pero-peligrosa/) the OLG had no obligation to consult the ECJ because the dual criminality rule presents no difficulty in this case. There is no “profound misunderstanding” on the OLG’s part because it’s not true that “the application of legal requirements under its domestic law must be made in abstracto and not in concreto”. There is no jurisprudence to support this claim. You cite two recent judgments by the ECJ but admit yourself that these only serve as a hint to a recent tendency. Even that can at best be said for only one of them. In Grundza (https://dejure.org/2017,55) the ECJ only clarifies that the dual criminality rule of the Framework Decision operates implicitly with the same transposition clause that the German law has laid down explicitly (§ 3 Abs. 1 IRG: “oder wenn sie bei sinngemäßer Umstellung des Sachverhalts auch nach deutschem Recht eine solche Tat wäre”). This clause has been applied by the OLG naturally in this case (high treason against Spain is not a punishable crime in Germany but for EAW purposes we assume it is). That’s all what Grundza is about. The second judgment you cite, Piotrowski (https://dejure.org/2018,656), exclusively deals with the scope of Article 3(3) of the Framework Decision. The problem was not the dual criminality rule of Article 2(4) (as you admit) but whether the two jurisdictions must have matching rules regarding the responsibility of minors. As I said, I agree that there is a similarity which could allow to draw arguments from this constellation for our case but that doesn’t mean that this judgment has already revolutionized the understanding of dual criminality in the sense you propose. One is a ratione materiae question, the other is ratione personae.
Let me give you an example that shows that the OLG’s approach is generally accepted and observed. The Spanish Audiencia Nacional had to decide whether the “data thief” Hervé Falciani (who now has eerily been drawn into the Catalonia extradition dispute orbit, see https://politica.elpais.com/politica/2018/04/10/analitica/1523387232_082048.html) could be extradited to Switzerland. Yes, Switzerland and you might object that’s not an EAW case; but the dual criminality clause has the same meaning in the EAW context – as far as it still applies there – and outside of it. The Audiencia Nacional made a thorough analysis of whether Falciani’s acts would have been subject to punishment in Spain, spread over 20 pages full of legal interpretation and assessment of facts (http://www.derechos.org/nizkor/espana/doc/falciani2.html). Some excerpts:
There is not much of your “in abstracto and not in concreto” approach to be found here. Of course, you might say that the Audiencia Nacional (also, a court second in rank deciding at first and last instance, which hopefully isn’t perceived as offensive by a foreign Supreme Court in the case of a rejection) got it all wrong too, especially since it didn’t have in mind that a few years later a new interpretation of dual criminality would be urgently needed.
Regarding your criticism of the OLG’s ruling what strikes me is that while you urge all to read the court’s reasoning you misrepresent it throughout your own article. Of course I don’t mean the minor slip that you place the Schubart case in the 1950s (instead of the 1980s) but the fact that you keep insisting that the court compared Puigdemont with Schubart. While there is indeed a comparison between the tumultuous events of Frankfurt and the events in Catalonia (b.t.w you imply that such a comparison is inappropriate; others do too, but in the opposite sense, saying that the “war-like” scenario of Frankfurt – as described by the courts at the time – has been obviously missing in Catalonia: http://www.lavanguardia.com/politica/20180410/442377206333/caso-schubart-puigdemont-precedente-tribunal-schleswig-holstein.html) what the OLG does in quite some detail is compare Puigdemont with a hypothetical prime minister of a German federated state who proceeded exactly like him. I wonder how you could miss that. The Schubart/Frankfurt case serves in this context as a precedent which allowed the Federal Court to develop the requirements of the violence test.
Going back to the general observations: While you denounce the populists traits you see in the Catalan independece movement (which to some extent probably exist) just a few paragraphs onward you go on to contrast the perception by the Spanish people (the correct perception) with the perception by the OLG Schleswig (the wrong perception): “A majority of Catalans see Mr. Puigdemont in the same way … And I know of no fellow Spaniard outside of Catalonia that considers Mr. Puigdemont a peaceful protester. … But the Oberlandesgericht of Schleswig-Holstein did not see it this way“. Well, that’s a nice anti-populist stance.
I could go on, but it’s late. Let me close with a quotation from your article of 9 september 2017 (when the law of disconnection had already been passed by the Catalan parliament and you seem to have anticipated that the illegal and ineffective referendum will take place:
I like this outlook better than fist-shaking towards Europe (“Do not underestimate the consequences”, “ignited the fire”, “Is Mr. Puigdemont really worth it?”).
Hi Oliver,
Thanks for your comments.
I still purport what I said last year and I sincerely hope that, at some point, Spanish politics finally finds a way to sit around a table and puts a political solution to the Catalan issue, instead of putting all the burden on the courts. I am very critical with Rajoy’s approach to the management of this crisis, which has been passive and cowardly.
However, after the publication of my September post many things have happened, in particular the approval of a referendum and secession Act in the Catalan Parliament (in very questionable conditions from a Parliamentary law perspective), the holding of a pseudo-referendum and a declaration of independence. When all those events take place (plus violence from both sides, but one of the sides has the legitimate use of force, we should not ignore that, particularly criminal lawyers), circumstances have changed and a criminal proceeding is now under way. Of course this criminal proceeding could have been avoided if Mr. Puigdemont would have decided to hold an election instead of declaring independence, but that is entirely his choice and he should assume the consequences of his political decisions.
Having said that, just two quick comments to your reply:
1. The Falciani case is exactly good proof of what I am arguing. There is no EAW between Spain and Switzerland, we have ordinary extradition procedures, and thus a traditional double incrimination test must be made. The EAW is not an ordinary extradition, and the offences outside the list of 2.2 FM are not subject to extradition procedures, quite the contrary. That’s the point and the underlying rationale of Grundza and Piotrowski. There is a double incrimination test, indeed, but in the context of a system based on mutual trust and mutual recognition, which does not exist in the case of ordinary extraditions with third countries. I suggest you read the Opinion of AG Bobek in Grundza, which refers explicitly to 2.4 when refusing double incrimination controls “in concreto” and purports controls “in abstracto”.
2. Having worked at the Court of Justice on EAW cases will not make of me an expert criminal lawyer, I agree. But I am comfortable enough to express my opinion on the interpretation of the EAW Framework Decision. Of course, I can be wrong (I usually am), but I don’t tend to write publicly about topics of which I am blatantly uninformed of.
In the meantime, I sincerely hope that the Catalan crisis is solved by political means. But that doesn’t absolve Mr. Puigdemont and his crew of the terrible decisions they voluntarily made on October 2017.
Having said all that, I think many readers of the Puigdemont saga outside Spain are missing a point: there is a lot of discussion in Spain, among criminal lawyers, of whether there is a breach of the offence of rebellion in this case. But that is something that the criminal judge competent to rule on the case should decide, not the executing judge. And if any of you are suspicious of the ability of Spanish courts to handle this with sufficient impartiality, rest assured: the judgment will be taken to the European Court of Human Rights, there is no doubt about that. In the end, Mr. Puigdemont’s fundamental rights will prevail, even if he is put on trial in Spain.
To be perfectly candid, I think a lot fewer people would have concerns about this case if it there was some reliable safeguard short of going to Strasbourg. But unfortunately, Spain has had problems with judicial independence for some time (see, for example, the figure on p. 37 of the most recent EU justice scoreboard: https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2017_en.pdf). And I don’t think the events surrounding 1-10 have particularly helped that reputation abroad. An independent judiciary would have presumably acted as a check on which charges could be filed, making sure that they were prima facie plausible. Instead, as far as I can tell from Spanish reporting and from what judgements have been delivered, the courts and the prosecutors have acted in lockstep to bring the gravest charges possible. Therefore, as I said before, it’s probably good that this matter is looked at a bit more closely than a normal (art. 2(2) or even art. 2(4)) case would be, given that this is probably the only time Puigdemont will come before a truly independent court until he gets to Strasbourg.
Your comment is purporting the repeal of mutual recognition among EU courts, the end of the area of freedom, security and justice and the abrogation of the Schengen framework. In the end Mr. Puigdemont will destroy not only Spain, but the EU too. Not bad for a mediocre local politician.
To argue that the executing judge of an EAW is the only chance of the accused to get a fair trial, is good proof that (1) we should get rid of the EAW altogether, or (2) my bias on this matter has been generously superseded by the bias of others.
Sadly, these arguments are confirming my initial criticism of the Oberlandesgericht decision: these good-hearted judges probably thought that they were upholding rights and the rule of law. What they ignore is that they are ignoring the purpose and content of the Framework Decision altogether. And that’s not good law. It’s a different thing, of which I have not had the courage of accusing those judges (in contrast to the accusations that Spanish judges have received in this sad affair, and in this thread).
I don’t think that first sentence is right. The EAW is based on mutual trust. That’s why it is so important for the EU to enforce its rule of law principles in countries like Hungary and Poland. This was articulated (outside of the EAW context) by the ECJ in its recent Associação Sindical dos Juízes Portugueses judgement.
Whether the rule of law is adequately safeguarded in Spain is a separate issue from the question whether the EAW regime itself continues to be viable. Like I said, I understand that it is difficult to hear, but Spanish judicial independence isn’t exactly what it could be.
I’m sorry, but any description of the case that exclusively blames one side of “terrible decisions they voluntarily made”, is evidently biased.
By the way: Any honest and fair account of the facts would include the discussion about whether or not independence was really declared by Puigdemont. This has been, as the perfectly informed author must know, object of both legal and political debate in Spain (and Mr. Puigdemont and his party have been criticized by radical Catalan separatists for their halfheartedness). Is, for example, publically claiming one’s right to unilaterally declare independence the same as exercising such a right?
A perfectly informed author should know that this law was solemnly enacted by the Catalan Parliament: http://exteriors.gencat.cat/web/.content/00_ACTUALITAT/notes_context/Law-on-Juridical-Transition.pdf
A perfectly informed author should also know that on 27 October 2017 the Parliament of Catalonia voted and solemnly declared the independence of Catalonia.
There were doubts as to the legal effects of a dubious declaration made by Mr. Puigdemont shortly after the 1/10 pseudo-referendum. During that time until 27 October Mr. Puigdemont was intended to hold regional elections as a means to challenge Rajoy and win a larger majority in the Catalan Parliament. However, at the last minute he decided not to call an election and proposed that Parliament declared independence. As it actually did.
If the president of a German Land or of a French region displayed such conduct, I wonder what the German or French courts would have to say about it…
Well, you can not ignore a true majority in cases of independence for long periods of time. The English did right, let the Scots decide after a true and honestly discussion. (And they went wrong with the Brexit and its fake news). I don’t know what we would do with an elected Saxonian or the Bavarian government, if they woud try to separate from Germany. But I hope we would know better than accusing them on state conspiracy. If there’s no argument to convince them to stay, let them go. But on the other side, I believe that there are many arguments to make them stay – and I hope also this is still the case with the Catalan people. In my understanding, an amnesty as an act of grace and afterwards negotiations abnout the Catalan position in Spain would be much better than following the current way. Spain already did this for far worse offenders in the Semana proamnistía de mayo de 1977.
I don’t think that the 1977 amnesty is comparable to the present situation, unless you assert that political prisoners under Franco’s military dictatorship are in the same position to a convicted felon by a court of law of a democratic state of the EU subject to ECHR external control.
Just for you to know, in the past months many of those who benefitted from the 1977 amnesty have been speaking out to remind the public that they were genuine political prisoners, imprisoned by a ruthless dictator, in contrast to what the independence movement is now claiming of its leaders. The comparison has been offensive to those who were genuine political prisoners under Franco.
I also agree with you that a referendum will be inevitable at some point, but that does not justify the events of October 2017. Puigdemont chose that course of action. He could have held an election and win an even bigger majority, but he decided to do otherwise.
Mass media spanish newspaper El Pais published one article 2 days ago explaining that Madrid was going to “activate” law experts in the media to support their view of the case. This seems, translated, that they were going to buy propaganda. I recommend the autor of this article to get in contact with Madrid authorities if he did not already yet, because this article would be well paid. Here you can read the “buying propaganda” article. https://politica.elpais.com/politica/2018/04/09/actualidad/1523305046_583227.amp.html
Regarding the “assault” that he relates, the juditial spanish police chief in Catalonia tweeted few days before of it that resistance to the authorities would be sedition crime.
Publico newspaper discovered it, he was tweeting from an anonymous account. How he may imagine the crime 2 days before they were going to enter to the catalan economy department?
Same day, spanish police tried to register one of the catalan parties headquarter without any judge order.
Police left weapons inside the police cars. Doors open. Cars in the middle of the street. That operation was called Anubis. It is the main argument the judge Llarena uses to jail catalan governement and catalan civil leaders, with no trial.
Does this seems just to me a trap to charge with sedition and rebelion the governement?
Regarding the violence in the referendum, thanks god all the world saw who used the violence.
Must be said that the police chief who coordinated the spanish police operation against the voters, coronel De los Cobos, was few years ago charged with torture of a ETA prisoner. He was acquitted.
Spain has been condemned several times by the TEDH to allow torture and do nothing about it.
There are more and more lies in the spanish version of the facts, but they have the media, the power and the catalan govenement jailed and suspended.
But the truth will prevail, I hope.
I hade a vague feeling of unease with this decision, but, being far away from the substance matter of the European Arrest Warrant, I couldn’t put my finger on it. Thank you for this post!
Would have enjoyed some links, like to the media reports on fake news or Jospeh Weiler’s statement.
You are completely right. Here they go.
The BBC link: http://www.bbc.com/news/world-europe-41981539
The Washington Post link:
https://www.washingtonpost.com/news/worldviews/wp/2017/10/19/how-fake-news-helped-shape-the-catalonia-independence-vote/?noredirect=on&utm_term=.acc8fedccce4
Weiler’s comments were made orally in Madrid, in a lecture that was reviewed with considerable detail here: https://confilegal.com/20171118-el-politologo-joseph-h-weiler-alerta-de-las-connotaciones-franquistas-del-nacionalismo-catalan/
The statement that the German case is “probably the only time Puigdemont will come before a truly independent court until he gets to Strasbourg” simply cannot be taken seriously by a fair observer of the Spanish judicial system.
On the other hand, the implication that this article has been paid by the Spanish Government is unacceptable. I honestly think that such a comment should be rectified or erased.
One can disagree with Daniel’s views, but he has made some plausible legal points. Let’s keep the discussion focused on them.
For the record, I did not mean to say or imply that this article has been paid by the Spanish Government.
(And I don’t think I did. In fact, I don’t think anyone else did either.)
I will not enter into the discussion on the technical issues of the EAW debate, although it seems pretty clear to me that the German court did not extra-limited itself, it merely examined if the facts, as described by the Spanish judge, corresponded or not to the similar crime as categorized in Germany.
However, let me point out a couple of things of your article, which in my opinion reflect that your views are far from being neutral or based exclusively in legal arguments.
First, you quote the official report on the alleged number of injured within the Guardia Civil (431), but you do not mention the one provided by the Catalan government (more than 1.000). Of course, few people in Catalonia seems to believe the report from the Guardia Civil, nor most of Spanish people likely believe the report from the Catalan government either. However, you only quote one and remain silent about the other. It doesn’t look like the most objective way of writing about what happened that day…The fact that some fake images may have been used on October 1st does not mean in any case, as you implicitly suggest, that the use of force by the Guardia Civil and the Policía was not excessive and disproportionate (see the conclusions of Human Rights Watch, among many others). And, may I add, this was the only violence that lots of citizens saw that day.
Secondly, apart from the exaggerated and alarmist description of the facts of the 20-S, could you please explain from a legal point of view, where is the violence required by the crime of rebellion (“alzamiento público y violento”)? Because the rest of your points are political and not legal, or intentionally miss the point. Puigdemont may not be similar to Mandela or Gandhi, however this is totally irrelevant for the legal debate. You also say that Catalan’s main credit institutions changed seats outside Catalonia. Apart from the fact that you keep silent again on those details that do not help your version of the whole story (that is, that those institutions changed seats encouraged by the Spanish State to do so), you claim that this is the proof that the perception of the pro-independence movement was not considering it as a peaceful movement. Again, this is not what must be discussed in order to know if Puigdemont and others must be charged or not with the crime of rebellion. You also claim in one of your comments that the Catalan pro-independence movement has fractured Catalan society, which is “not bad for a peaceful and democratic movement”. One can agree or not with that view, but this is nothing more than a political observation, not a legal point.
Certainly, we all have a political view on the issue, specially those like you and I who are Spanish, but we should be honest enough to keep the legal discussion within strictly legal terms.
Thank you for your comments.
I disagree, I believe that the facts you mention are relevant for the legal arguments of the post: by comparing the Frankfurt runway case with the events that took place in Catalonia in September/October 2017, the Oberlandesgericht’s ruling plainly shows its flaws. That’s not a political or ideological argument, it’s simply an opinion on a judicial decision whose author should have, before proceeding any further (and certainly not ad limine and in 48 hours, at least we should agree on that), requested further information from the issuing court. That’s how the principle of sincere cooperation, as stated in Article 4 of the Treaty, is supposed to work.
You may disagree with my exaggerated account of the events of 20 September, but unfortunately those events happened. We may disagree on how many wounded were hospitalized on 1 October, but it happened (and some used the force under legal authority, others did not). We can disagree on whether 3200 companies and the main credit institutions fled Catalonia for convenience or due to political pressure, but it happened too.
In sum, the degree of institutional, social, economic and (now) international damage that has been made to the country, and particularly to Catalonia, is quite severe. And on top of it all, it was all closured with the fanfare of a declaration of independence and the enactment of a juridicial transition law that paved the way to a constitutional rupture that is, by all means, the legal expression of a unilateral and unconstitutional secession, unacceptable under any regime governed by the rule of law (a crucial value of the EU, as Frans Timmermans has reminded Catalan leaders over and over for the last months, to no avail).
These assertions are not my political biases (which we all have, and you can see that I am no big fan of Catalan nationalism, the same way that I abhor Spanish nationalism too), they are simply arguments to prove that an environmental protest in which things get out of hand is not “an identical case” to a thoroughly orchestrated constitutional rupture organized by the very representatives of the State in the territory of an autonomous region, reliant on the budget (financed by all citizens, including those who oppose independence), the school system and the Police.
That’s the point, which is a point of law, inasmuch we are comparing two factual sitautions for the purpose of determining if the standards of “violence” are comparable.
Once it is assumed that they are not, the next step in the legal argument is whether the executing judge should undergo an “in abstracto” or “in concreto” analysis of whether the facts amount to an offence in Germany.
So far, all quite legal to me. Discussing on the facts (or correcting me with others) does not turn this into a ideological brawl.
Thanks for your reply. I may have wrongly expressed myself. As I said, I didn’t pretend to enter into the technical discussion of the EAW, nor if the German court should undergo an “in abstracto” or an “in concreto” analysis.
What I meant is that the very basis of the case, that is, if there’s been or not the violence required by the crime of rebellion, is based in your article (as well as in other pieces that I have read from you) not so much in purely legal terms as you claim to be. Again, you say that Catalan leaders are responsible of several damages and that their constitutional rupture is unacceptable. It’s true that unilateral secession clearly breaks Spanish constitutional law. No doubt about it. But (unfortunately for some) the crime of rebellion requires not only that this secession takes place or that independence is declared, but also a public and “violent revolt” or “uprising”. Like the case of 23-F, Tejero, you know that, as much as I do. And a closer and legal look on the facts rather points in the direction that this simply not existed.
Against this background, I think that your points are mostly based on political considerations or in legal arguments that, in my humble opinion, are incorrect. First of all, the description that the Supreme Court does of the facts of 20-S is not appropriate since the intention of both “Jordis” (and certainly neither the one of the members of the Catalan government, most of them didn’t even call to take part in that demonstration) wasn’t to preclude the Spanish authorities to do their job, and even less to provoke a violent situation. This is not a kind of psychological statement of what they pretended or not, the images and videos of what happened that day and the behavior of Catalan leaders are public. Also, whatever disturbance that may have taken place that day cannot be attributed to those who called the demonstration but rather to those who committed them, under the principle of personal responsibility in criminal law.
Secondly, the other main argument of the violence by the Catalan leaders is, essentially, that they were aware that on October 1st some violent episodes could take place and they only did nothing to stop the referendum but also encouraged the Catalan people to take part on it, knowing that the Spanish State may legitimally defend itself. Considering the principle of legality, this argument is clearly not enough to attribute a “violent revolt” to the Catalan politicians. Their attitude may be condemned from a political point of view and can certainly constitute a crime of disobedience. But not rebellion. The main violence that existed that day was the one by the Guardia Civil and cannot be attributed to those who organized the referendum or asked the citizens to disobey the law and, eventually, resist in a peaceful way.
Finally, the fact that the governmental or parliamentary actions are considered by the Supreme Court as part of the crime of rebellion is just another proof, if needed, that attributing the crime of rebellion to the main Catalan political figures is simply out of place. Rebellion requires a “violent revolt”, and people voting whatever they consider in a Parliament can certainly breaks the law, but never be considered as a violent revolt.
When I referred to keep the discussion in legal terms, I was thinking more or less in all this. The question is not if Puigdemont is the “new Gandhi”, nor if the political consequences of the actions of Catalan leaders are devastating for the Catalan and the Spanish society. This is another debate. A political one, and very interesting. But the relevant point here, and only this is relevant, is if they can be considered responsible of a crime of rebellion.
Thank you again, but I think you are missing the point.
I never intended to enter into a discussion about the crime of “rebellion” under Spanish law, or “high treason” in Germany. The precise details as to whether Mr. Puigdemont has committed the offence is not something that should be ruled definitively at the time of the arrest. This is a decision that must be made by the competent judge. And you will probably agree (if you are a trial lawyer, but your anonimity precludes me from knowing) that in order to ensure a fair criminal trial it is better to be judged by a court of law with all the necessary guarantees (witnesses, documentary evidence, right to be heard as many times as necessary, right to an appeal, external human rights control in Strasbourg, etc…), rather than by a court lacking jurisdiction, knowledge or access to the file.
My considerations as to the degree of violence were simply made to make an argument: it is not wise to compare Mr. Puigdemont’s case with the Frankfurt runway case. Also, it is unwise to make a ruling on the substance of the case in order to determine if Mr. Puigdemont has committed an offence in Germany or not. This is not what an executing judge is meant to do: it must determine if the facts, in an overall evaluation of the description provided by the issuing judge, are apt to be considered, in abstracto, an offence in the executing Member State. If otherwise, the executing judge becomes the judge of the case, putting the jurisdictional rules of criminal proceedings in all Member States upside down.
On the substance of the case, I honestly believe that it is up for the Spanish Supreme Court to say. And for those of you who are so skeptical about the Supreme Court’s impartiality in all this, you should know that there is currently an intense debate going on among Spanish criminal lawyers (and in the criminal chamber of the Spanish Supreme Court) as to whether Mr. Puigdemont is, indeed, guilty of a crime of rebellion or not. Mr. Puigdemont (and his crew’s) future has not at all been sentenced in advance. That is not my feeling of how the procedures will take place.
But that is for the Supreme Court to decide, and eventually for the European Court of Human Rights to ensure that whatever the Supreme Court says has ensured the fundamental rights of Mr. Puigdemont. But it’s not the task of a regional court in Germany, ruling on the security measures, ad limine and in 48 hours. That’s the point I’m making, nothing more, nothing less.
The supreme court in Spain is holding public elected representatives jailed without trial.
A single judge has more power than all the people who went on election to decide who should rule Catalonia.
This grotesc situation is holded by a invented violence with the purpose to disable the rights of the catalan politics to be elected.
There are just 2 crimes that allow a judge to void public representatives before trial:
Terrorism and rebelion.
This is why the German court decision breacks all their plans which are to use the juditiary to kill those who do not share their idea of just one unbreakeable Spain ruled by parties filled with politics with fake degrees and bachelors as you may read in the recent news.
Spain is using the EAW for political reasons, and who breaks the trust and the EAW system is who abuses it, not who detects it.
Dear Mr Sarmiento,
for the sake of clarity, would you be so kind and clarify what you mean exactly by the term “ad limine” which you use so frequently. I am not familiar with it and failed to locate it in Black’s Law Dictionary, Jowitt’s Dictionary of English Law and the OED.
By the same token, I think it would be worthwhile to elaborate on your understanding of the terms “in abstracto” and “in concreto” that feature prominently in your essay. Their recurring use might cause misunderstandings, as AG Bobek explains in his opinion on Grundza to which you have referred yourself:
No. 23: “That terminology is frequently used in criminal law doctrine. The specific and precise content of those terms (in concreto and in abstracto) is, however, less clear. It seems to be understood differently by various authors.”
No. 26: “The written submissions as well as the discussion that unfolded at the hearing demonstrate that considerable diversity exists among the Member States as to the exact understanding of the notions of in concreto and in abstracto in the context of double criminality.”
No. 28: “Where then is the dividing line between in abstracto and in concreto to be drawn? Similar to the position expressed by the Commission at the hearing, I am of the view that arguing about these notions and their specific content is perhaps not entirely helpful for the purpose of providing the national court with a useful reply in this case. Moreover, in view of the diversity in the understanding of the intervening Member States of how precisely the terms in abstracto and in concreto are to be defined, attaching terminological ‘stickers’ might be potentially misleading, since it is bound to be understood differently.”
Finally, I would be thankful if you could point out where exactly AG Bobek makes an explicit reference to article 2(4) of the framework decision in his opinion on Grundza, as you claim in your reply of 12th April at 11:19.
Thank you for your comments and queries. I will try to briefly respond:
1. Ad limine, or In limine decisions are preliminary decisions ruling on a motion prior to the ruling on the substance. See https://www.merriam-webster.com/dictionary/in%20limine
2 and 3. The AG rejects the distinction proposed by the Commission between a scrutiny in abstracto and in concreto, but he eventually assumes that the control must be general and not substantive, so that the executing judge does not replace the decision of the issuing judge (this is equivalent to what the Commission calls a scrutiny in abstracto).
The case refers to Article 7 of Framework Decision 2008/909, which is identical to Article 2(4) of the EAW FM.
The AG states quite clearly, ad limine (If I may…), that the FM under scrutiny follows the same rationale as the EAW FM. In point 40 he adds:
“It is important to keep these historical dynamics in mind when considering the function of the double criminality condition in Framework Decision 2008/909. The operation of that rule under Framework Decision 2008/909 should not produce less developed or more cumbersome interactions between the Member States, compared to the previous less integrated system based on the aforementioned international law instruments.”
In other words, the double incrimination test under these instruments is NOT the traditional test for extradition procedures with third countries. This is a point on which the Court will rely on extensively in its judgment.
After rejecting the distinction between in abstracto and in concreto control which you refer to, the AG proposes a rather flexible way forward, which is, in fact, and following the Commision’s terminology, an “in abstracto” scrutiny:
“In other words, in my view, the approach that should be adopted to the assessment of double criminality under Framework Decision 2008/909 relies on generalising at a higher level of abstraction the conduct that was considered and sentenced by the court of the issuing State. That generalisation necessarily implies some flexibility in the process of conversion during which the act concerned is examined by reference to the various available definitions of criminal offences in the executing State.”
I think that his rationale is quite clear: the test must entail “a higher level of abstraction” applied to the scrutiny of the conduct that was considered by the issuing State.
This is the same line of reasoning followed by the Court of Justice, when it states the following, as a way of conclusion in its judgment:
“46 It follows from the foregoing considerations that the condition of double criminality is an exception to the general rule of recognition of judgments and enforcement of sentences. Accordingly, the scope of the grounds for refusing to recognise a judgment or enforce a sentence, on the basis of lack of double criminality, as provided for in Article 9(1)(d) of Framework Decision 2008/909, must be interpreted strictly in order to limit cases of non-recognition and non-enforcement.
47 Accordingly, the purpose of the assessment of double criminality by the competent authority of the executing State, to which Article 7(3) of Framework Decision 2008/909 refers, is to verify whether the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing State, would also, per se, be subject to a criminal penalty in the territory of the executing State if they were present there.”
The Court is clear: (i) the double incrimination test is different to the test under extradition law, (ii) the double incrimination test must be applied in a restrictive way to impede the undermining of the judicial cooperation, and (iii) this test imposes on the executing judge an analysis “per se” of the facts, not an analysis on whether the accused would be convicted in the executing State.
I will finally add that Grundza concerns the enforcement of a criminal judgment (not an arrest for the purpose of judging), but that does not change the conclusion as to the scope of the double incrimination test.
Kind regards.
Dear Mr. Sarmiento,
thank you for your immediate clarification.
I suspect that the rigour of your assessment might stem, at least in part, from a misunderstanding of the nature of the decision taken by the Oberlandesgericht. My suspicion arises from the observation that you repeatedly point to the ruling to have been a preliminary one, that you label it as an acquittal and that you assume that Mr. Puigdemont cannot be put on trial in Spain now for that offence any more. If your assumptions turn out to be incorrect, as I think they are, you might want to reconsider your assessment.
It is commonly known that the Oberlandesgericht has not yet rendered a final decision according to art. 15(1) FD on the surrender. What might be less obvious is the fact that its decision of April 6th is not even a preliminary part of it. You seem to assume – correct me if I’m wrong – that the opinion of the court is at least partly definitive, insofar as it rules out a surrender based on the charge of “Rebellion”. But it’s not. The court is still free to decide either way.
Its assessment as to the permissibility of a surrender was only part of a decision whether Mr. P. shall remain in detention or not. Art. 12 FD demands the executing Member State to take such a decision, but refrains from setting a certain standard and leaves it to the law of the executing Member State. According to domestic German law, such a detention is only possible “if it appears ab initio that extradition will not be granted”. Please read this carefully: The test for custody is only the “appearance”. This is usually characterised as a temporary prognosis on the probable outcome of the surrender procedure. Nothing more.
Why such a lax standard, you might ask. Another judge has put it thus: If, according to the submitted documents, double criminality is lacking, so the intrusion in the fundamental right of liberty will not be justifiable by the possibility that further inquiries might lead to a different assessment. You can agree with this consideration or not, but it seems to me to be well inside the leeway given to the member states by Art. 12 FD.
So the decision of April 6th is not the end of the journey. Actually, it’s not even the beginning: At this stage, the Oberlandesgericht would simply lack the competence to rule definitely, even in part, on the surrender. This competence is subject to an application of the public prosecution service to that effect. No such application has been submitted yet. The applications by the public prosecution service were limited to the question of custody.
The limited scope of the decision taken on April 6th should also make it clear that it was nothing like an “acquittal”. But the comparison with an “acquittal” would seem misleading to me even if, hypothetically, the court should stick to its assessment when it finally renders its definitive decision according to art. 15(1) FD and declares the surrender partly inadmissible. I do not share your view that such a decision would have the effect that “Mr. Puigdemont cannot be put on trial in Spain now for that offence”. He could, of course. It would be weird (and probably contrary to the Kossowski ruling of the ECJ) if it was otherwise, and imagining that you assume it to be otherwise, I can understand your anger. But please consider: That ban in The legal consequence of Art. 27(2) FD – the ban on criminal prosecution for offences other than those for which the requested person was surrendered – is subject to the surrender being executed. Until that hour, the Spanish judiciary will still be able to revoke the EAW, as it has done before. In that case, the surrender will not take place, and the ban will not take effect. So there can be no unilateral “acquittal” by the executing Member State in the surrender procedure. Moreover: The ban in art. 27(2) FD is subject to serious limitations, included in art. 27(3) FD. In particular, prosecution in Spain for other offences will be possible even after a limited surrender if the requested person remains, after its final discharge, in Spain for more than 45 days. Also if he leaves Spain in this period, but returns thereafter. And there is nothing in the FD to stop the Spanish judiciary to issue another EAW for “Rebellion” while he stays abroad. Germany will probably not surrender him then, bot other countries just might. This does not sound like an “acquittal” to me.
So much for now. I hope that I will find another opportunity to elaborate on the “in abstracto” standard of scrutiny. If you have made it until this sentence I thank you cordially for your patienceThe relevant German law, the IRG (Gesetz über die Internationale Rechtshilfe in Strafsachen = Act on International Cooperation in Criminal Matters), is available in English at http://www.gesetze-im-internet.de/englisch_irg/englisch_irg.html#p0081. The rules I have mentioned in my contribution are to be found in § 15(2) on the test for custody, § 29(2) on the requirement of an application by the prosecution service and § 32 on the final decision by the court. These provisions not only apply to ordinary extradition cases, but also, according to § 78(1) IRG, to the EAW.
Best regards
Of course I’m talking of the decision of April 5th throughout! I am sorry to have erroneously used a wrong date. Why does this feel so familiar in this context?
Thank you so much for your very clarifying comment.
I am aware that the decision concerns only the provisional measures. My analysis is based on the assumption that the final decision will be in line with the decision of 5 April. At least I am assuming that the arguments that can be extrapolated to the final decision will still be there. As a question of coherence, I assume that the Court will be coherent with itself!
These arguments are subject to criticism, even in the decision on the security measures. For example, the use of the Frankfurt runway precedent in the decision and the reference to it as an almost identical case to Mr. Puigdemont’s is a questionable assertion that, if the Court is coherent, it would be applied in the provisional and also in the definitive decision. Thus my critique.
In addition, I still believe that that such a precipitated decision (taking into account the background of the accused, who has been on the run from justice since October 2017) should have at least relied on additional information and not a preliminary declaration of inadmissibility, which facilitated the release of Mr. Puigdemont. In the same way that the decision requests further evidence from the Supreme Court on the count of embezzlement, it would have been more cautious to also make an additional request on the point of rebellion. Having seen the new information provided by the Supreme Court, maybe its analysis (despite its particular interim context) would have been different.
But thank you for clarifying the point. For the reasons I have just explained, I still purport my arguments as presented in the post.
Kind regards.
The decision regarding the Rebellion charges do indeed seem quite definitive in the wording, but that still does not necessarily mean that – during the proceedings – the court my change its opinion in light of information requested from the Spanish authorities or presented by the Generalstaatsanwaltschaft. It is only an arrest warrant, and changes to arrest warrants during proceedings or in light of a final decisions.
However, I think this very unlikely indeed. The Frankfurt runway case makes quite clear statements in regard to the interpretation of §81 StGB.
In reading the opinion, I might agree with the reasoning of the OLG that under no circumstances could the level of violence in Catalonia amount to the level prerequsited to constitute “violence” according to the definition of §81, as defined by the BGH. The position of Mr Puigdemont seems not relevant for that assessment.
And I don’t think it would be held a constitutional implementation of the EAW act to extradite a defendant based on an abstract comparison if he cannot have fulfilled under any circumstances an element of the crime for which he would be extradited. And the EAW act has had not the best reputation in BVerfG judicature, even being nullified once before.
Your article and your comments seems to me a perfect example of cynicism, and I will explain myself. You slide all over your article that the Spanish judicial system is right in its position, you blame exclusively one side of the story (the Catalan one, that you almost portray as the responsible of all calamities one could imagine), you claim that the Catalan pro-independence movement isn’t peaceful or that you don’t know anyone outside Catalonia that consider Puigdemont as a “peaceful protester”, that he isn’t the “new Gandhi” and that he is the “leader of the revolt”. But when someone wants to open a discussion about the very essence of the whole thing, that is if the pro-independence movement is violent or not and, most importantly, if there’s enough legal basis to establish that Catalan leaders, at this stage of the judicial procedure, should be charged with the crime of “rebellion” that requires a “violent revolt”, then you say that this is missing the point, as you cover yourself behind a supposedly “aseptic” analysis of the EAW technical issues. You therefore avoid any debate that doesn’t interest you even if it was you the one who opened it with your considerations in your article. If you really wanted to exclusevily do an “aseptic” analysis of the EAW question, then there are lots of comments and statements in your text that should not be there. On the contrary, if you do all these considerations beyond the topic you pretended to limit yourself, then you should accept the debate on those issues too.
Apart from that, it’s not strange than someone could think that you manipulate the facts by presenting those parts of the story that benefit your version while hiding those that don’t, and trying to amplify the anecdotical phenomenon of the use of fake images on October 1st to implicitly suggest that the use of force that day wasn’t as important or condemnable as most people think. Of course, you ignored my references to reports like the one of HRW which explicitly denounced the excessive and disproportionate action of Spanish police, but you insist in claiming that there was violence from the side of the Catalan citizens who went voting, even if this a statement that few people outside Spain could likely agree with.
It’s a pity that your brilliant qualities as a lawyer are used in such a way, and that despite the fact that several legal guarantees and fundamental rights have been violated by the Spanish judicial system these last months in their reaction to the Catalan issue, the only thing that seems to be important for you is the fact that the German regional court decided not to send Puigdemont back to Spain for the crime of rebellion. But this is of course a political and ideological choice that you make, and all choices are legitimate, nothing to say about it. The only thing I would say is that at least you could be honest about it, as well as coherent with the kind of debates that you accept or not considering what you wrote.
I think this argument is unfair. My post is a rather straight-forward legal case and critique of a judicial decisionm that’s all. I may be right or I may be wrong, but my legal case stands on its own two feet, with all its virtues and flaws, irrespective of my personal opinion.
The only point in which I make comments about Mr. Puigdemont’s conduct is when I describe the events that took place in October 2017, on which we can debate, but which I think we cannot ignore or refuse their existence. I never ignored that there was violence on 1/10, I simply said that the violence was there. There were fake news as well and we can debate about how effective they were in sending the right or the wrong message abroad, but fake news they were. The remains of Guardia Civil patrol cars were left in the Montjoïc cemetary by the demonstrators that tried to stop a search ordered by a Barcelona judge. That happened. You can argue that that’s simply a funny joke. For me, it’s a very serious coercion against State authorities, improper of a peaceful movement.
And finally, the reference to Mr. Puigdemont as “leader of the revolt” in the last paragraph of my post is simply to make a contrast between the paradoxical situation in which we currently stand: the offender is the hero and the judge is the villain. Considering that the judge is a very well respected magistrate of the Supreme Court (former president of the Barcelona high court, thus quite knowledgeable of the Catalan situation), I believe that the narrative that the independence movement is trying to build is a very dangerous one. An attempt to destabilize the rule of law in a democratic country like Spain (which is a democratic country, despite the efforts of the independence movement to argue the contrary) is, in my opinion, a flawed strategy for a peaceful movement.
My point was duly confirmed yesterday, when the President of the Catalan Parliament, Mr. Torrent, announced that the institution he presides will bring criminal charges against the Supreme Court judge that issued the EAW. I have never in my life seen a Parliament bringing criminal charges against a judge. Our readers outside Spain probably haven’t, either. That’s the result of the narrative being built, in which Puigdment is Robin Hood, and the Supreme Court judge is the Sheriff of Nottingham.
The rest of the comments you mention were made in the context of this very long and intense discussion we have held in the blog with many of its readers, which I have very much enjoyed in almost all cases, but which at times has been tricky to handle, considering how passionate and biased some of the comments have been. I have tried my best to keep the discussion within the legal confines that belong to this blog. I might have succeeded or might have not, but in any case I think it’s unfair to say that my effort to keep a civilised legal discussion is characterized as an act of cynicism.
Dear Mr. Sarmiento,
as an interested legal amateur myself, I am quite surprised about the questionable quality of this reasoning written by a law professor.
To start with the most blatant aspect: As Daniel has already stated above, the OLG decision is in no way an acquittal of Mr. Puigdemont for the Spanish crime of “rebellion” — of course, a German court does not have the power to do that. This judgement can only lead, for a legally determined time period after an extradition from Germany, to a procedural bar on prosecution for this crime. Thus, this use of the word “acquittal” is highly inappropriate in a legal analysis.
The OLG also did not obviously overreach in its analysis of the alleged crime. The court did not act as a trier of facts but rather evaluated the legal meaning under German criminal law of the acts Mr. Puigdemont is accused of in the EAW. How the assessment could (and should?) be more abstract you do not really explain.
The decision in no way implies that “the executing judge replaces the role of the issuing judge”: The issuing judge examines whether there is sufficient evidence for the accusation and whether these facts constitute a crime (in the issuing state). The executing judge can only assess if “the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State” (Article 2(4) of the EAW Framework Decision), which requires some looking at the factual accounts contained in the EAW. (In contrast, the existence of “two identical offences” in the two member states involved is not relevant.)
The German law already contains a transposition clause corresponding to the ECJ interpretation of the Framework Decision; and the OLG has soundly taken that clause into account, as Oliver Garcia has explained in his comment.
(The only point of your criticism that could in principle have some merits under the ECJ jurisprudence concerns the possibility of requesting further information. In this case, the OLG seems to consider the information available in the EAW sufficient for this part of its decision.)
To go just a little bit into the details of the case: If violent events at some demonstrations are considered a use of force by Mr. Puigdemont, he certainly did not try to exact actual Catalan independence by force. What he may have tried to carry out by some amount of force, with partial success, is the (illegal and therefore — under Spanish law — null and void anyway) independence referendum. I think that this difference could be of some importance for the criminal offences of “rebellion” and “Hochverrat”.
Had Mr. Puigdemont further, e.g., tried to use the Catalan police to implement Catalan indepence by forcefully preventing the Spanish National Police from entering and operating in Catalonia, he probably would have committed a crime with sufficient force to fall under the scope of German “Hochverrat”. But as far as I know, he is not accused of this or comparable acts.
Banks and other companies moving their seats out of Catalonia is no proof for the independence movement generally not being peaceful. These actions seem to be motivated not by fear of physical force but by the economic uncertainty resulting from the escalating political conflict about Catalonia.
Your further points about a request “coming from a Member State’s highest court […] being rejected by a regional court”, potential “catastrophic” consequences for the EAW and the risk of the Spanish Supreme Court going to the Dark Side of euro-scepticism appear to me as alarmist rhetoric, which supports my conclusion that this post is not, in fact, a merely legal analysis, but rather in many ways a political statement.
You seem to be neither a friend of the Catalan indepedence movement, which is understandable, nor of the German court, which is unfortunate in my opinion.
What really bothers me is that you thereby continue the intermingling of political and legal matters that has aggravated the Catalan conflict and stalled any solution in the last years. The Spanish conservatives have rather thoroughly avoided dealing with the problem in the realm of politics, where it rightfully belongs. Instead, they have used, and arguably abused, the judicial system to suppress the Catalan independence movement. That this strategy is not sustainable, we have seen; in addition, it seems to have greatly harmed, in the eyes of at least a considerable minority of Catalans, the reputation of Spanish courts and the confidence in the fairness of their decisions.
Of course, a clear separation between law and politics is not always possible. Like Oliver García, however, I think that in the area of criminal law, it is strictly necessary to avoid confusing the legal reasoning with emotions and arguments belonging to the political sphere.
Thank you for your comments.
I believe, alas, that several commentators to this post have fallen under the tempting trap of “political crimes”. Maybe I have too, but my feeling is that some commentators have definately done so.
Rebellion or high treason are, in their very nature, “political” criminal offences. They are included in criminal codes in order to punish an attempt to subvert the constitutional order by means that are absent in the constitutional framework. The accused of such crimes will always defend a political cause, and they will do so by circumvecting the Constitution. If the constitutional order must be amended, the rules on constitutional amendments must be used, not alternative means, and definately not means that might entail unilateral movements that impose by force a new legal order. The Catalan independence movement attempted to impose a new legal order on 11/10 and they almost succeeded. They way in which they attempted to impose that new legal order to the entire Catalan population (knowing as they did that they lacked a majority), and using all the means in their hands provided by the regional administrative powers that the Constitution bestows upon them (education, security, health, media, etc..), is what the Supreme Court has explained to the Oberlandesgericht.
It is very tempting, if one sympathises with a political movement, to defend that anybody leading such political cause should be immune from criminal prosecution. However, the fact that the offence is “political” in its very nature (because the offender is purporting a political cause) does not necessarily turn those who critizise such opinions into cynical lawyers defending a political cause with apparent technical legal arguments.
Having said that, I would defend the same argument that I have purported in this blog if the offence under consideration would have been, for example, traffic-related, and the accused was an anonymous Slovak citizen under prosecution for driving drunk in the Czech Republic. If the Slovak judge would have undergone a detailed analysis of the facts in order to determine if the accused had indeed complied with all the necessary requirements to amount to a conviction, I would still argue that that kind of analysis is in breach of Article 2(4) of the EAW FM. That is also what the Oberlandesgericht did in its decision, and thus I was, and still is, critical of that way of reasoning and approaching enforcement of EAWs. In such case, I very much doubt that your critique of my analysis would focus on my political preferences. But the truth is that the outcome would be the same, whether the accused’s name is Mr. Spac, Mr. O’Neill, Mr. Larseen or Mr. Puigdemont.
As to your critique of my use of the term “aquittal”, please note that in a recent judgment (M.A.S.) the Court of Justice has been successfully nudged by the Italian Constitutional Court to admit that a time-bar of a criminal offence is materially equivalent to an acquittal. You might be surprised that I use such term, but the decision to refuse an EAW on a specific ground raised by the issuing judge amounts to a preclusion of criminal prosecution, which, in accordance with current case-law of the Court of Justice, is materially equivalent to an acquittal. Thus, if Mr. Puigdemont’s EAW is refused, he would be in a position materially equivalent to an acquittal of the offences he presumably committed in Spain.
I think poitical crimes shouldn’t result in an extradiction. They are exclusive in each state, which makes rebellion a spanish thing. An other thing is a crime, you can exclude from the political, a violence crime or embezzlement.
I have just read an excellent article by Rafael Mateu de Ros, published in Agenda Pública, in which he explains why Mr. Puigdemont is probably not responsible for a crime of “rebellion” under the Spanish criminal code. He also explains how in a recent Order of the Supreme Court concerning Mr. Puigdemont, in one of the preliminary decisions the chamber made prior to the investigating judge’s decision of prosecution (and prior to the issuing of the EAW), the Supreme Court already points out to such doubts (the chamber expressed the possibility that the acts could be considered to be a conspiracy to commit an offence of rebellion, but not rebellion in itself).
Unfortunately this article is in Spanish, but if any of the readers of this thread have the possibility of reading it I suggest you do. It’s good proof that Mr. Puigdemont’s case before the Supreme Court is by far not a given case. The charges against him on the grounds of rebellion are raising many doubts among criminal lawyers in Spain and within the criminal chamber of the Supreme Court.
But that, as I have over and over stated in this post and in these threads, is something for the Supreme Court to decide, not an executing judge in another Member State, with the excuse of an intensive double incrimination test (which is, in my humble opinion, improper of the EAW mechanism and the principles of mutual trust and sincere cooperation).
The link to Mateu de Ros’ article: http://agendapublica.elperiodico.com/consideraciones-sobre-el-procesamiento/
My comment was not focused on specific “political preferences” but rather the general approach of your reasoning, even though I am not sure about the ECJ’s actual view on the matter at hand. I think the extensive interpretation of legal provisions to achieve some political intention can be quite problematic. In the past, the ECJ has been criticised for several decisions that entail a restriction of the fundamental rights — of the European Charter as well as in the legal orders of individual member states or the ECHR — in this way.
In the area of criminal law, including the criminal procedure, it is particularly important to have clear and precise rules. Although Italian jurisprudence seems to be unusually strict with respect to limitation periods, I certainly agree with the Italian Constitutional Court that those legal provisions can not simply be disapplied by the criminal courts on account of vague considerations pertaining to European interests. For the sake of a clear and coherent structure of criminal law, it can only be tightened by express amendment in parliament, even if it does not fully conform to the European law.
This point nicely illustrates my point of view, but is not too relevant in detail for the Puigdemont case: The OLG decision is not based on some kind of acquittal — I still do not consider this word useful in this case — or limitation period argument. The preclusion of criminal prosecution applies only in connection with the possible surrender — technically not called “extradition” according to the EAW Framework Decision, as I have read now — and is not final, unlike in the case of an expired limitation period above. (Is that why you compare it to an acquittal, which I do not read from the M.A.S. decision?)
However, my rationale is applicable here, too. The EAW is a mechanism of criminal law and involves, in fact, a restriction of the personal freedom. Therefore it is not justifiable, in my opinion, to extend its scope beyond the wording of the Framework decision. The relevant part: “For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described” does not imply that the executing judge is barred from assessing the factual account in the EAW, which German law requires, on the other hand.
Perhaps it would be more convenient for the political aim of “the EAW’s effectiveness” under “the principles of mutual trust and sincere cooperation”, but the law says otherwise. I am confident, by the way, that without unconditional cooperation between the member states in the field of criminal prosecution, the “Area of Freedom, Security and Justice” can still thrive, too.
Dear Mr Sarmiento,
your assertion that the charges against Mr.P on the grounds of rebellion are
“something for the Supreme Court to decide, not an executing judge in another Member State” is correct, but beside the point, because the German court has not ruled on the charge of rebellion according to Spanish criminal law, but only on a point of German criminal law. It even has stated explicitly that the legal analysis in Spanish law could very well lead to a different result than German law.
Moreover, I do not see any basis for your claim in a previous post that a refusal of an EAW by the executing state amounts to a preclusion of criminal prosecution in the issuing state. As I have already explained at length before, Spain would have several options to proceed with its criminal prosecution. This would be a far cry from “a position materially equivalent to an acquittal”. Nothing else can be deducted from the M.A.S. case, which had nothing to do with the EAW, let alone with the specific effects of a refusal in particular.
Dear Daniel,
thank you for your reply (of 12 April 2018). Unfortunately I’m currently not able to participate in this discussion as much as I’d like to.
My biggest problem with your article – next to its emotionality – is that you don’t put your – absolutely valid – critisism of the OLG into perspective and fail to disclose the difference between what is a desideratum of yours and what is (or is not) currently widely accepted in the interpretation of EU law (the Framework Decision). Here’s what I mean: Your argumentation revolves around the in concreto/in abstracto axis of how the dual criminality rule (Article 2(4) Framework Decision) should be interpreted. Following our exchange of arguments I think it’s safe to say that we agree on two things: First, in the traditional extradition regime it is generally accepted that the dual criminality test requires an in concreto view (see the Falciani case as a – maybe extreme – example). Second, until now – 16 years after the enactment of the framework decision – we have no jurisprudence that says that the traditional understanding of dual criminality has undergone a modification within the area of application of the framework decision. You present no such jurisprudence. What you do present and base your case on are two judgments by the ECJ and their previous opinions by the AG which don’t directly deal with this question but may rather serve as arguments within our current discussion. Please correct me if I’m wrong and we don’t agree on either of these points.
Because if we do I find the characterization of the OLG ruling you convey throughout your article highly inadmissible. Any non-initiated reader who comes to your article to inform themselves must get the impression that the OLG has acted as a renegade court who has put itself outside a well established consensus – for whatever nefarious reasons (possibly anti-Spanish bias) – where the opposite is true and the OLG has only failed to make this individual case a turning point in the interpretation of dual criminality, setting a new precedent (via the preliminary ruling procedure).
Here are just a few quotations in that sense from your article:
Only at one point of your article you give a glimpse – a rather surprising and maybe confusing one compared with the rest of the text – that there might be a difference between practice and the proposed better solution:
As I’ve said before, advocating for an in abstracto approach is a perfectly fine position worthwhile the discussion. It’s the rhetoric that is out of place.
For lack of time to bring much to this discussion itself, here’s just a thought: I’m very much in favour of having the current controversy decided by the ECJ. Like you I believe that there are clever ways in which Llarena can take this case to the ECJ. But I don’t think such as design is necessary. The OLG can and should do it instead. Even though my opinion is that originally the OLG had no obligation to refer to the ECJ when it sticks to the traditional interpretation I think we have a new situation when the requesting judge insists in his request with an elaborate argumentation on points of EU law. It is well established jurisprudence by the ECJ that in order to refrain from making a referral “the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other member states and to the court of justice” (CILFIT [https://dejure.org/1982,19], paragraph 16). And such a conviction in my opinion can’t be maintained when the requesting judge brings strong arguments to the contrary (even where there is no direct communication between the judges, the views of the latter at least can be conveyed to the former by the General Prosecutor who is party in the procedure).
Hi Oliver,
Thank you for your comments. I think that we are still disagreeing on the major points, but also on format.
As to your accusations of being too passionate about this topic, it feels strange having to argue what is obvious to me, but nevertheless allow me to remind you that this is a blog. Furthermore, my post is an authorized reproduction of a post of my blog, Despite our Differences, which has been running for almost three years.
There is not a single post of mine which doesn’t use an informal, straight-forward and, yes, passionate approach towards legal discussions which in practice tend to be quite dull. In my blog I discuss all kinds of topics, mostly EU fundamental rights and other topics of EU constitutional law. I have published on Catalonia only on three occasions.
I think you are mischaracterizing my personal closeness to the topic of Catalonia. My style in this post is practically equivalent to all the other posts I have published in the past three years, but it is a conscious and deliberate option why I intentionally use to have an additional source of communication with readers and colleagues. I assure you that I write lots of boring and technical papers throughout the year, and my blogging posts are the occasion I use to express myself in more coloquial and informal terms.
My style is not the result of Catalonia. It’s about a choice of style and format which I have practiced for a few years. You might like it or not, but I think it’s a legitimate stylistic choice.
I appreciate that you bring this up, because I’m afraid that several other commentators (who have probably never read any of my previous posts on other topics) tend to believe that I am a passionate Spaniard writing with my hurt national pride. I’m sorry to dissapoint, but there’s nothing about national pride in my posts on internal situations and freedom of movement, Poland, the ECHR accession Opinion or the Deggendorff case-law. Nothing exceptionally passionate either in my post about Mr. Puigdemont neither.
As for your additional comments on substance, I think you are still missing the point. The fact that the Court has remained silent for the past fifteen years has nothing to do with the correctness of the Oberlandesgericht’s decision. Please note that it took the Court of Justice fifty years to say, for example, that a national court has no duty to make a reference before setting aside a national statute. It also took the Court another half century to openly state that decisions to refer a preliminary reference cannot be appealed before domestic courts. Very basic but crucial issues of procedure that took a very, very, very long time to confirm.
I still insist on my point as it is portrayed in the post: by entering into a detailed analysis of the facts and claiming that there was no sufficient violence as required under German statutory law, the Oberlandesgericht has undergone an extraditional test that is not what the EAW FD requires from national courts. Otherwise, the FD would simply refer to national law and allow Member States to preserve their bilateral extradition agreements, something that Member States have not done since enacting the EAW.
And so far, the case-law of the Court is pointing exactly at the direction I am arguing for. In an provision to Article 2(4), in Grundza, both the Court and the AG argued that such a provision is proof that the double incrimination test has evolved from the extraditional test, and that such test must be done with a sufficient “degree of abstraction” in order not to replace the EAW with an extraditional test that has been superseded under EU law.
Finally, there have been some previous comments about the risk towards individual freedom that an interpretation as the one I am purporting would entail. However, the argument is completely missing the point. The EAW is necessary not for the sake of it, but because we are living under the Schengen framework, which has created an area of free movement with no border controls among Schengen States. In order for free movement to work, there must be complete and unconditional mutual recognition among courts and police authorities. Otherwise, Schengen becomes a scape route for offenders and criminal activity that would surely put the initiative to rest.
The EAW and its proper functioning is a trade-off between the enhanced freedom that Schengen provides to all EU citizens and residents, which allows them to move with no frontiers throughout the continent, and the need to ensure efficient security and judicial enforcement. That is why questioning the EAW is the first step into questioning Schengen too. And if we start on that path, who knows where we will end…
To me, the original post as well as parts of the discussion appear to come from a political standpoint, not a legal one.
One may disagree with the OLG’s decision. But to paint it as a mistake, to accuse the judges of practicing law on an intern level, to critize the amount and quality of research done – well, that’s not very courteous, and doesn’t help to give credibility to the arguement.
At least in German-speaking academic circles, which this blog focusses on, one doesn’t accuse each other of being wrong, idiots or illiterate, but try to persuade – using reason, not insults.
The court has given its ruling, it has given its reasons, it has based its reasons on previous rulings and academic research – regarding the quality, it seems to be average among OLG decision (which is an average of a high standard).
Still, one may disagree, but if you attack the quality of research, you attack the quality of legal work in Germany as a whole. Again, that’s a standpoint one may take. But… well… it’s one man against a lot of windmills.
Personally, politcally, I disagree with Mr. P. Declaring independence without a supporting legal framework is reckless, creates chaos and throws lawyers into a pit of uncertainty.
But seriously: If you, the author, didn’t know what law would apply the next day, that doesn’t constitute violence from Mr. P. In fact, it puts your whole standpoint into question: Did you really doubt that Spanish law would continue to apply?
As a fellow lawyer, I share the outrage about the legal chaos some politicians create. They throw laws at us nobody understands. They change some laws each season, as if the law was a product of the fashion industry. They often ignore the laws they themselves created, casting doubt on the legitimacy of the whole process.
But that’s not violence. That’s idiocy. And if idiocy were a punishable offence, we’d all be convicts.
P. S.:
The OLG’s decision reads a bit funny, I think. It appears the judges wanted to make it easier for non-lawyers to understand. That is commendable and also shows that the court did see the political perspective. But it does make the decision a bit unusual regarding the language and structure – but not worse or less well though out, but a bit easier to read.
They not use the big words. They use the small words. But they still be correct.
I would very much appreciate if you point out at which point of my post (or of my comments) I have called “idiots” or “illiterates” the judges of the Oberlandesgericht. I think it is an unfair characterisation of what, so far, and despite the difficulties of the subject-matter, has been a rather civilized debate in a blog.
What also strikes me of your comment is that. as you say, by stating that a judgment is “wrong”, such a statement becomes an insult or an offensive assertion. I don’t think that stating and arguing the wrongfulness of a legal argument is anything that should offend a lawyer, and particularly a judge, whose decisions can (and must, for the sake of the rule of law) be reviewed by another jurisdiction. In fact, you are yourself arguing the wrongfulness of my interpretation of EU law, and I would never consider it an offensive statement on your part.
I never used the term “amateurish”, that’s another commentator who did. But I still think that the critique strikes a fair point when referring to the sources of the decision under discussion here. And here I completely disagree with your comment: a judicial decision has to stand the test of criticism, and such criticism can be based on the solution, the arguments and the sources relied on. I am not a big fan of judgments quoting legal scholarship, so I will not criticise the decision for its lack of empathy with the scholarly opinion in the field. What I do think is questionable is that not a single reference to the case-law of the Court of Justice can be found in the judgment, particularly after the two relevant precedents in Grundza and Piotrowski. That is very worrying for a court that is about to rule as a last instance jurisdiction. From the perspective of the Court of Justice, that would NOT be a good practice and definitely not an “acte clair” approach towards the interpretation of EU rules by a court of last resort. Probably this might change when the OLG renders its final decision, but so far, it looks more like the OLG fighting (or running away) from the Luxembourg windmill.
And that’s a much bigger windmill than German legal scholarship, believe me.
I referred to “the original post as well as parts of the discussion”. Who used which phrase is, in my view, of little concern – the complete style of discussion is a bit out of bounds here in my opinion. One may critize a court – of course, and it’s even our duty as academics. But the tone used by some here is a bit too strong for a serious discussion. One may disagree. But that doesn’t make the other party an idiot.
For example, I still don’t see how doubt about which law would be applicable after the declaration of independence constitutes violence. I can accept that you have another opinion on that. But that makes neither of us a fool, or either of our opinions the first step of the downfall of the rule of law. And the OLG Schleswig can take either stance, too, without bringing about Europe’s collapse.
Nobody said that the judges of the OLG are idiots, I think that that is an unfair attempt to discredit the position of some of the contributors. You might have a distaste for a more informal style of reasoning (unsurprising in a blog, even if it is a legal blog, in which anybody can participate), but I think that the legal criticisms made to the OLG can stand on their own two feet. In an application, a defence or an academic publication, all of us would have used a different style, but the core of our arguments would still remain.
I will also remind you that in previous comments I have indirectly (to put it mildly) been accused of being paid by the Spanish government to publish this post. It strikes me that you find more offensive the critiques (when no insult has been made) to the OLG than the (rather insulting) doubts that were spread on this author.
In any case, and to recap a legal reasoning that has been repeated over and over through these comments, try to understand the case of Mr. Puigdemont with another person, and with another offence. Take away the politics of the case and try to see it as an ordinary EAW case. Seeing it without the noise of the independence movement can be very helpful. And in that context, if an executing judge undergoes a double incrimination test that is tantamount to a test on whether the facts lead to a conviction, rather than making a general assessment of the offences under consideration, that way of approaching article 2(4) is, in my humble opinion, contrary to the FD and to the principles of judicial cooperation in criminal procedures that the Court of Justice has been developing to date.
My comments as to the impact of a restrictive interpretation of the FM in a case like Mr. Puigdemont’s are not overalarmist. If a Member State like Spain, after having gone through one of its most terrible constitutional crisis, with a civil coup orchestrated from the very authorities that are supposed to represent the State in the territory of Catalonia, has to assume that the Member State to which the leader of the movement has fled to, cannot be put on trial because of a strict principle of double incrimination that was supposed to have been eradicated with the EAW (and which is nowhere to be found in the FD), there are good reasons for that Member State to become a Schengen-sceptic. And its courts too. And others will agree (France was never a big fan, needless to say the opted-out States like Denmark or Ireland). And that’s not a zombie apocalypse, of course, it’s simply the crisis and decline of a project of judicial and security integration among sovereign State that, one day, decided that it might not be worth the sacrifice. That is all I am saying. But of course, the European Union will still be there.
Who used what phrase is of some importance. I called the OLG’s ruling amateurish and I stand by this qualification. It is a very poor decision, no matter what one’s standpoint is. I’ve presented the following riddle twice in this learned thread and so far have received no solution. I’ll try once again.
The OLG has ruled that the violence at issue had not reached the required threshold because, as events later showed, Catalonia did not become independent. It used a precedent under Article 105 StGB that it considered identical, despite the very obvious differences. Article 81 StGB punishes those who endanger the existence of the Bundesrepublik. If the same level of ‘efficient violence’ is transposed (as the OLG should have done if only for the sake of testing the soundness of its reasoning) to Art 81, we come to the absurd result that high treason can only exist if the perpetrator has used enough violence as to destroy the Bundesrepublik. Can any reasonable mind accept that such was the will of the legislator?
I agree that both “sides” went over the edge in some posts. And even if somebody was paid by one government or the other – that wouldn’t invalidate the arguement.
Regarding the case:
The question the court asks seems plausible to me: Would the head of a German regional government be accused of high treason if he held an illegal ballot and declared indepence?
One must now ask two questions:
– Is the premise correct, i. e. should be compare Mr. P.’s case to a corresponding one in Germany? That’s a question of EU law, which I’m not an expert on – but as far as I understand, that was a general assumtion so far, and it seems plausible. I understand that you disagree, but seem to have no hard precedence to support that claim. Is the OLG’s decision then a.) wrong or b.) at least legally viable, even though not everybody agrees with it? I think b.).
– Is the answer to that question correct? Would a German MP have been accused (or even convicted) of high treason? That’s a question of German criminal law. The court negates the question, and I tend to agree. German courts require a high degree of violence for “Nötigung eines Verfassungsorgans” (blackmail of a constitutional power). It’s at least viable to translate that to high treason. And that requirement hasn’t been met here, even with all the chaos the indepence movement caused. The comparison with the Hessian case shows that: violent protests for several hours with the proven intent to bend the government’s will weren’t enough. The scuffles before and during the election were, without a doubt, worrying, but nothing near an armed uprising. They were a side-effect of the referendum, not a mean to make the Spanish government capitulate.
Could the OLG have given the Spanish court a chance to give more facts? Of course.
Should it have? That requires a balancing act between the Spanish court’s interest and Mr. P’s right to freedom. One has to consider that the Spanish court had had all the time in the world to prepare its case and is the legal expert. And even if all it had said was assumed to be proven fact, it didn’t constitute violence. What else should the OLG have asked?
At least in German legal proceedings, if a party doesn’t have legal standing even if all its claims are assumed to be true, the legal claim is rejected outright.
As they didn’t give a final decision regarding the misuse of public funds anyhow, yes, they could have used the time to ask two questions instead of one. But I very much doubt that anything that could have been given would have helped to support the claim of high treason. The indepence movement just wasn’t violent enough.
Let me ask another question: Did the Spanish court do its job? It obviously failed to convice the German court. Even if one sees the German court’s decision as wrong, maybe there’s a little tiny bit of blame to be put there, too?
Again, for clarity’s sake: I probably agree with you on a political perspective. The independence movement is, as far as I can judge that from here, misguided. But that shouldn’t influence the legal judgement on whether that’s high treason. If it was, what about a myriad of other political blunders?
The 70-page long Order of the investigating judge on which the EAW is based is quite revealing to me.
I ignore what contents of it, or what summary may have been translated in the context of the EAW against Mr. Puigdemont, but the narration of events, the description of the violent acts that took place prior to the referendum and during the referendum, and above all, the internal documents of the independence movement in which they openly state that civil society must be used by all means to pressure and force a reaction from the State, are quite revealing, to say the least. The footnotes of the Order, with ample references to communications among the leaders of the movement, prove how serious (and worrying for any democracy) the effort of subversion and use of civil society was.
The full text is available here:
http://www.poderjudicial.es/cgpj/es/Poder-Judicial/Noticias-Judiciales/El-juez-Pablo-Llarena-procesa-por-un-delito-de-rebelion-a-13-de-los-investigados-en-la-causa-por-el-proceso-secesionista-de-Cataluña
One final comment on how stringent the violence has to be for the State to be put under an irresistible pressure that is relevant under German criminal law. If the narration of the Order does not lead to a conclusion that the State was put under an irresistible pressure, I am assuming that the relevant test is one in which the State does eventually succumb to such pressure. Since that is a ridiculous interpretation, because at that point there would be no State at all to enforce the Criminal code, it is obvious to me that the OLG is doing a substantive evaluation of the facts that leads it to determine if there is a conviction or not. And that is NOT for the executing judge (in this case, or any other case) to do. It lacks the means, the knowledge, the proximity and the jurisdiction to do so.
Doing that in the context of an EAW, in 48 hours, without requesting any further evidence and taking into account the specific features of this case, seems rather dubious to me.
The German court tested one condition for the German law (and therefore double incrimination) to be fullfilled. You can dislike the decision and call it ridiculous and wrong, but to test the accusaion in light of German law is still the task for a German court to do.
“If the narration of the Order does not lead to a conclusion that the State was put under an irresistible pressure, I am assuming that the relevant test is one in which the State does eventually succumb to such pressure. Since that is a ridiculous interpretation, because at that point there would be no State at all to enforce the Criminal code, it is obvious to me that the OLG is doing a substantive evaluation of the facts that leads it to determine if there is a conviction or not.”
You’re right in saying that the suffiency of the pressure cannot simply be judged only by its success. However, the OLG did not decide whether Mr. Puigdemont would be convicted in Germany for the acts described in the EAW — that would be undue in just 48 hours. It rather determined that he could *never* be guilty of Hochverrat due to actions like those he is accused of. This seems to be sufficiently obvious, in the eyes of the court, that it ruled that part inadmissable in the first place.
Unlike you claimed in your answer to my first comment, the Catalan independence movement did not use “all the means in their hands provided by the regional administrative powers”: As I have already stated above, the regional government did not direct the Catalan police to forcibly implement their independence; neither did they use any other sufficiently organised and violent or armed force (to my knowledge — unfortunately I cannot read the Spanish text).
The independence movement certainly pursued a serious escalation of the conflict — even without having a popular majority — but they did not want to risk an actual civil war. That would probably be an example for the kind of violence or force implied in “Hochverrat”. In contrast, a state might be expected to be able to deal with some amount and a certain degree of violence at a regional riot. Of course, violent acts remain punishable as ordinary (non-political) crimes.
So while in Spanish jurisprudence, it may not be clear yet whether there was a “rebellion” in Catalonia, the OLG is strictly convinced, at least for the time being, that Hochverrat it could not possibly have been. And I still see no sensible reading of the legal basis of the EAW that would bar the executing court from making this kind of determination, which I do not consider a “full review of the case”.
Concerning the underlying issue here, I’d like to add:
You may envision “complete and unconditional mutual recognition among courts and police authorities”, but a design choice of the EAW is the possibility of having some kind of double criminality requirement (subject to several explicit restrictions in the Framework Decision). I would argue that a closer cooperation would necessitate far more harmonisation among the EU states. In any case, that is something the legislature needs to decide.
All too often, the ECJ has simply restricted fundamental rights protections to the lowest level by means of a new interpretation of the law. That is not the kind of “Area of Freedom, Security and Justice” I want to live in. Instead, there should be thorough deliberation and debate about harmonisation decisions that affect fundamental rights. The results should then be written, not just interpreted into the law.
I quite agree with you, Mittelwert, that the OLG seems to have no doubts that the facts at issue could ever constitute Hochverrat. And that’s precisely what amazes me, since it bases its ruling, not in any convincing analysis of the text and function of Art 81 or any ample and solid höchstrichterlich case-law, but on a single precedent which dealt with a different provision and a very significant difference in factual context whose extrapolation is highly questionable.
Anyone who can read Spanish should have a look at this detailed analysis of the OLG’s ruling by Professor Gimbernat. He too comes to the conclusion that the OLG has made article 81 inapplicable. He adds that if the OLG thinks the Schubart and the Puigdemont cases are that similar, it should have considered requalifying the facts as disturbance of peace and general coercion (Landfriedensbruch in Tateinheit mit Nötigung). This approach would also have better served the purpose of proactive mutual trust enshrined in the Framework Decidion.
http://www.elmundo.es/opinion/2018/04/16/5ad34048268e3ee23d8b45d9.html
The Frankfurt Airport Schubart Case is used to test the violence aspect against, because in the case there WAS a high level of violence and it MEANT for the purpose and that was still not enough to reach the necessary violence level.
The EAW in question is not available under the link Sr. Sarmiento has given. Please correct if possible.
It is not the EAW, it’s the Order of formal accusation of the investigative judge, prior to the opening of the criminal procedure. This is the Order (and facts) on which the EAW issued by the same judge is based on.
The Order is the first of the first three links at the end of the webpage.
http://www.poderjudicial.es/cgpj/es/Poder-Judicial/Noticias-Judiciales/El-juez-Pablo-Llarena-procesa-por-un-delito-de-rebelion-a-13-de-los-investigados-en-la-causa-por-el-proceso-secesionista-de-Cataluna
Personally, I wouldn’t call myself qualified to apply Spanish criminal law correctly. I find it interesting how many Spanish legal experts feel confident in applying German criminal law.
Overall, the quality of the Spanish legal branch seems to be better: They not only write better rulings, but also have an instant grasp of foreign law.
Minor detail: the Spanish branch is not interpreting or having a take on the correct interpretation of German law. The Spanish branch is arguing that a ruling of a German court is not in line with an EU Framework Decision.
You can at least give us a say (with some, not much, authority) on that.
One hardly needs a lawyer, let alone a criminal lawyer, to see the obvious flaws in the OLG’s ruling. Common sense and basic analytical skills suffice, as I have pointed out above. Instead of making blank accusations as to Spanish lawyers supposedly usurping the robes of German legal specialists, it might prove more constructive to throw some light into how those misgivings are effectively, in your view, ill-founded.