11 April 2018

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.

SUGGESTED CITATION  Sarmiento, Daniel: The Strange (German) Case of Mr. Puigdemont’s European Arrest Warrant, VerfBlog, 2018/4/11, https://verfassungsblog.de/the-strange-german-case-of-mr-puigdemonts-european-arrest-warrant/, DOI: 10.17176/20180411-141130.


  1. Leser Mi 11 Apr 2018 at 15:08 - Reply

    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.

  2. Daniel Sarmiento Mi 11 Apr 2018 at 15:53 - Reply

    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.

  3. Frank Brennecke Mi 11 Apr 2018 at 16:28 - Reply

    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.

    • Daniel Sarmiento Mi 11 Apr 2018 at 17:04 - Reply

      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.

  4. Martin Holterman Mi 11 Apr 2018 at 18:43 - Reply

    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.

  5. Philipp Mi 11 Apr 2018 at 19:47 - Reply

    „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.

  6. patj Mi 11 Apr 2018 at 20:31 - Reply

    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.

  7. Daniel Sarmiento Mi 11 Apr 2018 at 20:43 - Reply

    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.

    • Martin Holterman Mi 11 Apr 2018 at 21:37 - Reply

      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.

      • Daniel Sarmiento Do 12 Apr 2018 at 00:31 - Reply

        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.

        • Philipp Do 12 Apr 2018 at 11:14 - Reply

          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.

          • Daniel Sarmiento Do 12 Apr 2018 at 14:06

            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

  8. Bernardino Correa Guimera Mi 11 Apr 2018 at 22:23 - Reply

    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.

    • Chris Do 12 Apr 2018 at 23:59 - Reply

      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.

      • Bernardino Correa Guimera Fr 13 Apr 2018 at 19:59 - Reply

        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.

        • Chris Sa 14 Apr 2018 at 22:06 - Reply

          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.

          • Bernardino Correa Guimera So 15 Apr 2018 at 03:34

            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.

  9. Ludger Do 12 Apr 2018 at 00:15 - Reply

    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.

  10. John H. Do 12 Apr 2018 at 00:16 - Reply

    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!

    • Daniel Sarmiento Do 12 Apr 2018 at 00:34 - Reply

      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.

  11. Oliver García Do 12 Apr 2018 at 02:11 - Reply

    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:

    „[…] instigators of the terrible secessionist acts […]“

    „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 […]“

    „The Oberlandesgericht’s decision is a flawed ruling that seriously undermines the EAW’s effectiveness, and I would even say its future survival.“

    „Mr. X is now free to move, thanks to […] a law-motivated (but naïve) executing judge.“

    Let me also precede my examination of your arguments by saying that I had read your article from 9 september 2017 (https://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://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:

    „En suma, los delitos a los que, en principio, sería reconducible la calificación suiza y harían posible la extradición,
    por darse hipotéticamente la doble incriminación, serían los de revelación de secretos del
    artículo 199 del CP […]

    A este respecto, estimamos imprescindible tener en consideración toda la información válidamente
    introducida en el procedimiento, la aportada por las partes y la existente en nuestra propia jurisprudencia, que
    se refiere a hechos y situaciones que se han dado por jurídicamente probadas […]

    Es, en definitiva, este planteamiento puramente formal, fragmentario y descontextualizado, en suma, desconectado de la verdadera complejidad real de los hechos, que constatamos presenta la fiscalía suiza, el que no puede compartir este tribunal a la hora de analizar la doble incriminación de la conducta atribuida al Sr. Falciani, ya que por su parte si debe tener en cuenta los hechos en su integridad. […]


    La conclusión a la que, en definitiva, llega el Tribunal es la falta de doble incriminación normativa en el caso.“

    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:

    „If reason and common sense prevails, politics and deliberation will recommence after 1 October 2017 and Catalunya and the rest of Spain will sit around a table and try to find a reasonable arrangement for the future.“

    I like this outlook better than fist-shaking towards Europe („Do not underestimate the consequences“, „ignited the fire“, „Is Mr. Puigdemont really worth it?“).

    • Daniel Sarmiento Do 12 Apr 2018 at 11:19 - Reply

      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.

      • Martin Holterman Do 12 Apr 2018 at 12:27 - Reply

        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.

        • Daniel Sarmiento Do 12 Apr 2018 at 13:41 - Reply

          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).

          • Martin Holterman Fr 13 Apr 2018 at 21:31

            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.

  12. Philipp Do 12 Apr 2018 at 12:18 - Reply

    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?

    • Daniel Sarmiento Do 12 Apr 2018 at 13:54 - Reply

      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…

      • Frank Brennecke Do 12 Apr 2018 at 15:51 - Reply

        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.

        • Daniel Sarmiento Do 12 Apr 2018 at 17:40 - Reply

          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.

  13. Josep Do 12 Apr 2018 at 17:38 - Reply

    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

  14. Josep Do 12 Apr 2018 at 18:03 - Reply

    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.

  15. PB Do 12 Apr 2018 at 19:18 - Reply

    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.

  16. Luis Arroyo Jiménez Do 12 Apr 2018 at 20:41 - Reply

    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.

    • Martin Holterman Fr 13 Apr 2018 at 19:57 - Reply

      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.)

  17. A (perfectly¿?) informed author Do 12 Apr 2018 at 22:48 - Reply

    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.

    • Daniel Sarmiento Do 12 Apr 2018 at 23:42 - Reply

      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.

      • A (perfectly¿?) informed author Fr 13 Apr 2018 at 01:10 - Reply

        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.

        • Daniel Sarmiento Fr 13 Apr 2018 at 08:09 - Reply

          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.

  18. Josep Fr 13 Apr 2018 at 08:42 - Reply

    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.

  19. Daniel Fr 13 Apr 2018 at 14:15 - Reply

    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