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Deposed Catalan president Carles Puigdemont is due back in Belgian court on 4 December over the European Arrest Warrant (EAW) issued by the Spanish authorities. This post reviews the Spanish decision issuing the EAW and looks at three of the issues that have attracted attention and could arise in argument: proportionality, dual criminality and the discrimination argument.

Background to the case

The nature of the case against Mr Puigdemont is partly set out in the auto ordering the issue of an EAW. It centres on the assertion that he contravened Spanish Constitutional Court rulings and injunctions by holding an independence referendum and causing the Catalan assembly to make a declaration of independence on 27 October 2017.

Significantly, it includes some (oblique) assertions of force. These include crowd movements preventing arrests in September 2017 (the link with Mr Puigdemont is not clear); assaults upon police vehicles (ditto); and the support of the 17,000 strong Mossos d’Esquadra, or Catalan police, said to carry an intimidating effect. It is also said that he used public funds to pursue the referendum without lawful basis.

The Spanish judge has found that the acts described could potentially constitute three offences. First, “rebellion”, of which a person is guilty if they “rise up… violently and publicly” (my emphasis) for various purposes, including “to modify or suspend … the Constitution” and “to declare the independence of any part of the national territory”. Second, “sedition”, made out by the public and disorderly rising up to impede, by force or not by lawful means, the application of laws or any public authority’s legitimate exercise of its functions, or enforcement of court orders. Third, and more simply, embezzlement involving standard elements of misuse of public funds.

Based on that case, the judge has ordered the issue of an EAW, defined by the EAW Framework Decision (and Belgian implementing law) as a judicial decision issued for the arrest and surrender of a requested person for the purposes of conducting a prosecution.

Proportionality and lawful use of the EAW

For years, advocates like Fair Trials have criticised the practice among European judges of reaching for an EAW when the case is not actually at the stage of prosecution, when less draconian alternatives are available. Non-binding EU handbooks (see 2017 edition) suggest alternatives before issuing an EAW.

The handbook says that the EAW is not there for questioning suspects. That should be pursued via Directive 2014/41/EU on the European Investigation Order, which enables one EU country to order investigative measures (e.g. questioning) in another in lieu of seeking extradition – consistent with the EU’s founding principle of proportionality. Based on that idea, the argument has long been made that is disproportionate to issue an arrest warrant when an EIO has not been considered.

The auto rejects Mr Puigdemont’s request to be heard by videoconference, pursuant to provisions of Spanish law implementing a pre-existing intra-EU mutual legal assistance treaty. The decision does not address the EIO. It bears note that Spain is late implementing the EIO (which was due to be transposed by 22 May 2017), and it seems a little harsh for Madrid to rely on its own non-implementation to make this less coercive alternative unavailable.

However, the judge rejects the videoconference option for a reason that would presumably apply also for the EIO, namely that Mr Puigdemont had the chance to be heard in Spain and opted instead to travel to Belgium. There is no express proportionality bar in Belgium, but even if one were inferred (some EU case law supports this), in my view it is unlikely that a Belgian judicial authority would look behind the Spanish court’s express reason for not selecting an alternative measure.

Dual criminality

Dual (or double) criminality involves the assessment of whether an offence in an extradition request would also be an offence in the country asked to extradite. The EAW Framework Decision, in the name of simplification, removed this traditional requirement for a limited number of serious offences, but none appear likely to apply here so it looks like the Belgian court will have to perform this assessment.

This is, on the face of it, a more promising area for Mr Puigdemont. European Court of Human Rights case law finds violations of the rights to freedom of expression and assembly where a person is prosecuted criminally for matters which do not extent beyond the exercise of such rights (e.g. a genuine demonstrator convicted of rioting by a group). In line with this, there is an expectation that criminal statutes prohibiting the overthrow of government will require force (there is nothing wrong with just wanting change).

Our own House of Lords recognised fairly clearly in 2003 that 19^th century treason legislation would, in today’s world, require proof of force if it does not say so expressly. I welcome comments from any Belgian lawyers on what Belgian law provides – the Criminal Code includes offences like “rebellion” by private parties, or contravention of the law by public officials – and whether elements of force are required. However, force is a requirement of the Spanish law for both offences, and basic factual assertions purporting to satisfy that requirement are there in the auto, oblique as they may be. The element of contravention of Constitutional Court rulings is also significant, as most places have offences relating to contempt of court.

Much, then, will turn on the content of the allegations, the approach taken to dual criminality and the elements of relevant Belgian offences.

Political offence or motivation

Extradition treaties often feature two exceptions to give refuge to those wanted for political activity.

One is the “political offence”, a concept relating to things such as treason, espionage or criminal offending which was proportionate to a political objective. The other is the “discrimination clause”, providing for the refusal of extradition where the request has in fact been made in order to prosecute someone on account of, or they will be prejudiced by reason of, inter alia, their political opinions.

However, the EU is founded upon shared principles of democracy and the rule of law, so the EU legal system treats the possibility of persecution (including by means of prosecution) as remote. This is visible in the regulation of asylum law. The EU asylum directives apply only to “third-country nationals”, and EU members are deemed safe countries of origin for asylum purposes – a provision originally pushed by Spain because of its experience of alleged members of ETA (the Basque separatist organisation) claiming asylum in, among other places, Belgium. It is also visible in the EAW Framework Decision, which has no formal refusal ground incorporating either the “political offence” or “discrimination clause” tests.

The demise of the “political offence” exception is less remarkable, as it has lost some currency (it no longer exists in the UK, though it still features in other countries’ laws and the EU/Iceland/Norway extradition treaty). But it appears that some member states did not believe that EU law could actually do away with the “discrimination clause” (described by the Swiss Federal Court as a peremptory rule of international law akin to the ban on torture). Thus, recital 12 to the EAW Framework Decision sets out a “discrimination clause” in non-binding form, probably a concession to that position in the negotiations. An express refusal ground on that basis appears in France and in the UK.

Belgium, for its part, has a general human rights refusal ground referring to Article 6 of the Treaty on European Union, which incorporates the Charter of Fundamental Rights. The question is whether those rights include the protection conferred by, in particular, the “discrimination clause”. That protection does not feature in the Charter, though general non-discrimination clauses in the Charter may provide a vehicle. Article 6 TEU also includes the so-called “constitutional traditions common to the Member States”, which are general principles of EU law and may be another gateway.

The lack of clarity on this point could be something justifying the involvement of the CJEU. It may not be that esoteric a question. Further arguments of this nature could realistically arise (e.g. from Poland and Hungary, where there has recently been international concern about encroachment upon the independence of judges and the stifling of civil society and political activism).

Belgian courts have, despite the strong presumptions in favour of mutual trust (clarified in C‑404/15 and C‑659/15 Aranyosi and Caldararu), invoked the human rights bar before – including in relation to Spain. In 2013 a Court of Cassation (Supreme Court) judgment declined to interfere with an appeal court’s ruling that a requested person would be held in a restrictive procedural regime used in terrorism cases which had been heavily criticised. However, the EAW Framework Decision approach is that the executing court should leave it to the issuing state’s courts to protect against such violations, so any argument under this head will have significant hurdles to overcome.

It all comes down to trust

Clearly, this case probes the boundary between unlawfulness and criminal activity.

Declarations of independence are not per se against international law, as the International Court of Justice has said in relation to Kosovo. Independence referendums are supposed to be done with consent of the parent state – think Scotland, but also Crimea! –  and the Spanish Constitutional Court rulings make it clear that the Catalan regional authority did not have such powers. But holding an ultra vires referendum and issuing an ultra vires declaration of independence is different from using force to overthrow the constitutional order.

While I am not a Spanish lawyer, my reading of the auto is that the Spanish judge is clear on the distinction, drawing attention to the requirement for force in the Spanish legislation and appearing almost sceptical about the prosecution’s allegations of force. Yet those allegations are there for the time being and, if they do pass the dual criminality test as a result, much of this case comes down to whether the Belgian judge trusts the Spanish judge to protect Mr Puigdemont from conviction should his actions amount to unlawfulness only, not criminality proper. Few are the examples of EU judicial systems not extending such trust to one another.