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://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 p