The Court of Justice of the EU has aligned itself this Tuesday with magistrate Pablo Llarena in the case that affects the Euro-order issued by the Supreme Court in which Belgium is asked to hand over Lluís Puig, one of Carles’ former consellers Puigdemont who fled in 2017. He has done so less forcefully than the general counsel, and leaving some loopholes, but giving him the green light to issue as many orders as he deems appropriate and limiting the maximum capacity of the Belgian authorities to continue denying the delivery of Carles Puigdemont and the rest of the defendants.
The judgment of the high court of Luxembourg establishes that a judicial authority cannot deny the execution of a European arrest warrant if the existence of “systemic or generalized deficiencies that affect the judicial system of the issuing Member State” is not demonstrated. That is: “in principle” Belgium cannot continue to deny the capture of the former minister, if there are no deficiencies of this nature, and it is not proven in the case of Spain, considered a full-fledged State by the Union. And neither can a denial be based on the allegation that the Supreme Court lacks jurisdiction just because Puigdemont and his former advisers say so. “A refusal decision, adopted after an adequate examination, must be of an exceptional nature,” the text clearly states.
The ruling, however, seems to leave open some loopholes that the defendants’ defense will cling to. Thus, the document reads that “the executing judicial authority that has to decide on the surrender”, that is, the Belgian, “cannot deny the execution of an arrest warrant on the grounds that that person runs the risk of being prosecuted, after delivery to the issuing Member State, by a court lacking jurisdiction for that purpose”. But it also adds a “unless that judicial authority has objective, reliable, precise and duly updated elements that reveal the existence of systemic or generalized deficiencies in the functioning of the judicial system of the issuing Member State or deficiencies that affect the judicial protection of an objectively identifiable group of persons to which the data subject belongs”.
Does Belgium have these objective, reliable and precise elements? Hardly, but a small margin of interpretation is generated. The pro-independence politicians have always declared themselves politically persecuted and “exiled”, which Belgium could at least use so that it is not something automatic. It is a possibility, albeit a remote one, and given the precedents, it is possible that the local magistrates take advantage of it if they believe “provided that, in the particular circumstances of the matter in question, there are serious and accredited reasons to believe that, given, in particular , of the data provided by the person who is the subject of said European arrest warrant regarding their personal situation, the nature of the offense charged against them, the factual context in which said European arrest warrant was issued or any subject to that person in the issuing Member State manifestly lacks competence to do so”.
The sentence says that the complaints of the defendants are not enough by themselves nor are they relevant for these purposes, but they can be one more element if evidence is accumulated to decide on the violations. But it’s not worth anything anymore. The CJUE limits its margin to the maximum and guides the process step by step. They should ask Spain, as an indignant Llarena said. And then follow a legal path in two binding phases. THE CJEU constantly refers to the Framework Decision and says that any analysis that questions the competence of Spain or the situation of the Rule of Law must come from there. Without strange reports or simply with the doubts of those claimed.
“That a person alleges that, once handed over to the issuing Member State, he runs the risk of being prosecuted by a court lacking jurisdiction for this purpose, the existence of a report from the Working Group on Arbitrary Detention that does not directly refer to to the situation of that person cannot justify, by itself, that the executing judicial authority deny the execution of that European arrest warrant”, the text says. But it adds that “the report may, on the other hand, be taken into account by said judicial authority, among other elements, for the purpose of assessing the existence of systemic or generalized deficiencies in the functioning of the judicial system of said Member State or of deficiencies that affect to the judicial protection of an objectively identifiable group of persons to which said person belongs”. And that identification would be the independentista politicians.
Since their arrival in this country, the judicial authorities have done everything possible not to arrest, retain and, of course, hand over Puig, Puigdemont, Toni Comín and Clara Ponsatí. The case of the last three is very unique, because they are MEPs with full rights, including immunity. Which makes them untouchable for now, at least until the various cases that are open are also resolved in the CJUE. Processes to rule on whether they are entitled to that immunity, if their accreditation is valid despite the fact that they never complied with the national procedures and if the request granted by the plenary session of the Chamber to lift their immunity and that they can be tried in Spain was in accordance with the norms or not, as they maintain.
But the case of Puig is the most striking. He is not a legislator, he does not have immunity nor is he claimed for sedition or rebellion, but rather for embezzlement. And yet Belgium says no. The last time he maintained that the Supreme Court is not competent to issue a Euro-warrant and that he had doubts about whether the rights of prisoners are respected in our country, totally buying the argument of the defense. Llarena in his letter denounces “the profound ignorance” of the Spanish system, since the Belgians assume the ability to decide which would be the appropriate one, and they invent a Supreme Court of Catalonia, which does not exist.
For this reason, Llarena, after years of being exposed by the judicial system of several European countries, decided to appeal to the CJEU with a series of preliminary rulings. Questions in which he asks to define what are the limitations of a European Arrest Warrant (EAW) and under what conditions they can be denied. Llarena wanted to know if EU law grants the executing body the power to control the competence of the issuing body. The question has a very deep charge, since the Framework Decision that regulates Euro-orders does not give any type of control power to the country that must execute it, since the very basis of everything is the principle of mutual recognition of judicial decisions. And if Belgium arrogates that power, Llarena affirms, the entire system would be undermined.
The Grand Chamber of Luxembourg establishes in its decision that the executing judicial authority, that is, the Belgian one, “may only deny the execution based on the lack of jurisdiction of the court that will prosecute the person sought if it concludes that, on the one hand, these deficiencies exist in the issuing Member State, and, on the other hand, the lack of jurisdiction of that court is manifest”.
Legally it should be clear, but the Belgian magistrates have been very receptive to the defense arguments. The team headed by Gonzalo Boye insists that the Supreme Court was not the right body, since the deputies were autonomous. The CJEU says that it is not up to Belgium to decide, but the lawyer has pointed to a paragraph of the sentence, number 100, assuring that “going through the CJEU will also make them lose in the Strasbourg Court of Human Rights”. Assuming, at the same time, that this is where the process will end, since the path of community justice is exhausted.
The ruling does not definitively close the door for Belgium or other countries to rule on other systems, but at the same time it greatly limits their margin of discretion. The Court of Justice adds that, “by virtue of the obligation of sincere cooperation, the refusal of enforcement based on a manifest lack of jurisdiction of the court that will prosecute the person sought must be preceded by a prior request for additional information to the issuing judicial authority, in accordance with the provisions of the Framework Decision”. In other words, he cannot decide on his own, but must consult his doubts directly, something he did not do with Puig.
Finally, the Grand Chamber says that Llarena can issue as many warrants as he wants as long as it is not disproportionate, since the legal framework “does not preclude the issuance of several successive European arrest warrants against a wanted person in order to obtain their surrender by a Member State after the execution of a first European arrest warrant directed against that person has been refused by that Member State, provided that the execution of a new European arrest warrant does not lead to the infringement of Article 1(3) , of Framework Decision 2002/584, in its amended version, and that the issuance of this latest European arrest warrant is proportionate”.
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