Article by:
Nicolás Zambrana-Tévar LLM (LSE), PhD (Navarra) KIMEP University (Almaty, Kazakhstan)
After a failed referendum for independence in Catalonia in October, 2017, involving violent clashes with the police, Spanish prosecutors charged a group of Catalan separatist leaders with disobedience, rebellion and embezzlement. Some of them fled to Germany, Belgium or Scotland and Spanish judges issued two subsequent European Arrest Warrants (EAW) under the EU Framework Decision of 2002, requesting their extradition. Last May, the Belgian court refused, arguing that the second EAW issued was invalid because a new Spanish arrest warrant was missing, which the Spanish Supreme Court said was unnecessary. The German court granted the extradition of former Catalan President Puigdemont in July, on the charge of embezzlement, but not rebellion. This case shows the limits of international judicial cooperation in criminal matters and why courts cannot replace politicians in the task of protecting their domestic constitutional order.
Concerning the charge of embezzlement, the German court concluded that, had the facts taken place in Germany, Puigdemont could be prosecuted there in accordance with German law (§266 StGB), so the principle of double criminality was satisfied. However, the court need not have analysed such principle because “corruption” is one of the offenses listed in art. 2.2 of the Framework Decision, for which automatic extradition is provided.
With respect to the charge of “rebellion,” which is not included in art. 2.2, the German court understood that the facts, as presented by Spanish authorities, did not correspond neither to the German offense of “high treason” (§81 StGB) nor to “disruption of civil order” (§125 StGB), because the acts of violence that had taken place seemed to have been committed by “autonomous groups” and Puigdemont would not only not have planned or even wanted such violence but would have only meant the referendum to be the prelude of negotiations with the Central Government. However, a referendum is arguably not an opinion poll; it is an act of Government and is meant to be acted upon. Besides, such negotiations never took place and were never announced by Puigdemont.
Furthermore, the German Court understood that the violence had not been intense enough nor qualitatively appropriate to put the Spanish constitutional order in danger, for which either “revolutionary fighting” or a complete paralysation of public life is needed. Such violent acts must be capable of forcing the authorities to submit to the demands of the perpetrators. This is in line with German academic commentaries (Harro, 2005, p. 476). The German court saw no real coup, no huge street battles and only 58 policemen wounded. It also said that Spanish authorities had not accused Puigdemont of ordering the Catalan police to attack the national police but just to remain passive or to facilitate the referendum.
Referring to the German Startbahn West case –where demonstrators had violently tried to stop the construction of an airport in 1983-, the same court insisted that neither the violence on the day of the referendum nor in the previous and following weeks, nor the referendum itself, would have necessarily led to secession or put the Spanish state in peril. However, the violence could indeed correspond to other criminal offenses like disobedience, assault or disruption of public order, if charged to the specific individuals involved. Going any further might risk criminalizing public discourse and civil and political rights.
With respect to the charge of “disruption of public order” it was similarly concluded that Puigdemont was neither present at the time of the violent acts nor could be considered its “intellectual instigator”. He could not control what was happening nor was he being accused of preparing a “battle plan”. He was only dealing with the organisation of the referendum.
Finally, the German court did not see any formal mistake in the Spanish EAW –as opposed to the Belgian ruling- and, for the second time, manifested that there was no risk of political persecution, were Puigdemont to be tried in Spain.
The German Court seemed well aware of the exceptionality of the double criminality principle, as requested by the European Court of Justice in the Grundza case. Such principle “must be interpreted strictly in order to limit cases of non-recognition.” This exceptionality is in accordance with the preamble of the Framework Decision: “(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States”. Art. 82 (and the following) of the Treaty on the Functioning of the European Union also provides that “judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions”.
The Grundza court also explained that “in assessing double criminality, the competent authority of the executing State must ascertain, not whether an interest protected by the issuing State has been infringed but whether, in the event that the offence at issue were committed in the territory of the executing State, it would be found that a similar interest, protected under the national law of that State, had been infringed.” Such interest is the integrity of the state and of its constitutional order. The German court considered that the violence in Catalonia would not have been enough to make the German state surrender but, in doing so, it was assuming that Germany and Spain are equally strong or equally weak, as states, which may not necessarily be the case. The German court also went as far as to manifest that neither the violence nor the referendum had been dangerous enough for Spain but, again, a German court is in an awkward position to assess the constitutional strength or weakness of a country, other than its own.
The drafters of art. 472 CPe (i.e. rebellion) only had Spain in mind, a heavily decentralized State, but not a federal one, with its own history of regional aspirations and separatist struggle. Taking this argument to the extreme, it could be said that the Spanish crime of rebellion simply has no corresponding crime in the German criminal code because the victims or protected interests in both cases –Spain and Germany- are different and are not comparable as such victims, even though they are both sovereign nations, each one having their own respective peculiarities and capacity –or lack of capacity- to resist the kind of violence Spain suffered in the present circumstances.
The German court stated that it is very difficult to bend the will of any Government but if the crime of rebellion required the kind of violence necessary to put a state on its knees, rebellion would hardly ever be prosecuted, because once the rebellion was over there may no longer be a state which could prosecute such an aggression. The German court seemed aware of this logic but it did not consider that, as the history of nationalist terrorism in Europe shows, such organizations never rely on violence alone, for their political purposes. They usually have, in their organic structure, one or several completely legal “political arms” or even parties, which openly justify the “armed struggle” and work towards the same goals in a more or less coordinated way.
The extreme constitutional sensitivity with which Germany has treated EAWs may also help understand the German court’s reasoning. Not only did the German Federal Constitutional Court initially declare that the law that introduced the EAW was unconstitutional but German courts have set very high standards to control the procedural guarantees of European countries issuing such warrants. This German approach has also had the ECJ’s blessing on at least one occasion (Aranyosi and Căldăraru case).
On the other hand, it can help understand the attitude of Spanish courts to remember that during the nineties, the expression “low intensity terrorism” was coined to refer to the extremely violent riots that repeatedly took place in different parts of the Basque region, organised by several minority Basque separatist organisations, some of which were either an organic element of the terrorist group ETA or were coordinated with it. On several occasions, Spanish courts understood that such violent riots were simply part of the same terrorist secessionist strategy, which additionally involved ordinary political activities. Terrorist attacks by separatist organisations from other parts of Spain have been comparatively much milder, with only a few mortal victims by Catalan separatist groups such as the Exèrcit Popular Català and Terra Lliure.
However, more than 100 Spanish professors of Criminal law signed a manifesto in November, 2017, where they anticipated some of the arguments later upheld by the German court. In their view, the absence of acts of violence directly perpetrated by those now accused of rebellion prevented the application of art. 472 CPe, which was actually drafted so as not to make non-violent separatism punishable by law. In fact, the Spanish Constitutional Court has said, on several occasions, that the pursuit of independence within the Spanish democratic framework is permissible.
In fact, in Spanish recent history, the most flagrant case of rebellion has been the long prison sentences given to the leaders of a failed military coup in 1981, were a group of high ranking officers and soldiers stormed the Spanish Parliament and held all MPs hostages for a few hours, as well as assaulted some official buildings in other parts of Spain.
Arguably, if a single rogue military officer with a single gun tried to highjack a whole Parliament, his action would most probably be unsuccessful but, for the significance of the highjacked institution and the significance of the attacker, such an officer would be charged with the crime of rebellion. However, as mentioned above, the strategy of violent separatist organizations has not necessarily been to try to break the state by sheer force. Violent confrontation with the state rather seeks to call the attention of the international community to the “brutality of the state repression”, following the acts of violence, in the expectation that the international community will be sympathetic and become involved, as it is commonly the case. Thus, a relatively minor degree of violence in the face of a much better armed police force can be much more destabilising and effective, politically, without probably falling within the definition of “rebellion”.
It seems as if the highly criticized passivity of the Spanish Government, in the face of Catalan separatism, which is basically a political issue, has infuriated some Spanish judges, who have tried to replace politicians as best they could, in the fight for the unity of their country. In addition to the fact that criminal courts are not the ideal mechanism for the defense of the constitutional order, those judges have tried to involve their European counterparts in their particular crusade. Nevertheless, EU law instruments of judicial cooperation in criminal matters were definitely not designed with these kind of crimes or situations in mind. Since the EAW has now been lifted by the Spanish Supreme Court, the trial in Spain is due to commence without its leading characters.