Monday, May 29, 2023
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Francisco J. Bastida

​The breach that the German decision on Puigdemont causes in the EU

Professor of Constitutional Law

The institution of the European arrest warrant and surrender procedures was created in 2002 by a Framework Decision of the Council in the European Union. Its objective was to create a European judicial sphere for the prosecution of certain crimes, so that extradition from one country to another in the European Union was not a governmental decision (political) but rather judicial.

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The basis of this Euroorder was the mutual recognition of the Member States of the Union judicial systems. On the basis of this principle of trust, the Euroorden states that the Member States will execute all European arrest warrants. Therefore, it is not a question of passing judgement on the facts allegedly committed by the person arrested in the country receiving the Euroorder; nor to question whether the Euroorden issued by the judge is well argued because of the facts that justify the request for arrest and surrender.

The matter is of a more formal nature and basically consists of verifying whether the crimes attributed to it are on the list of the Framework Decision and whether they have their equivalence in the criminal code of the country receiving the Euroorder.

It seems clear that, although with a different denomination, the crime of rebellion in our penal code is comparable to that of high treason typified in the German code. However, the German Court that decided the case of the former Catalonian president did not limit themselves to this formal contrast. They went on to analyze whether the valuation of the events reported in the Euroorden filed by Judge Llanera and described by him as a crime of rebellion fit in the de facto case of the crime of high treason. The same with regard to the facts constituting a supposed embezzlement of public funds.

The reason for this apparent judicial activism finds its explanation in that the German law that specifies that Framework Decision does not adequately translate the terms in which it establishes the principle of mutual recognition of criminal decisions in the area of freedom, security and justice in the European Union. Far from forcing the German judge only to a mere formal contrast of crimes, it recognizes a margin of interpretation of the facts reported in the Euroorder, to check whether their qualification made by a judge from another Member State in the European Union fits in the event of a similar crime typified in the German criminal code, and this is what the Territorial Hearing of Schweslig Holstein did.


From the legal point of view, the resolution of this judicial body on the Euroorden made by Judge Llarena has two aspects. With regard to the European Union, it shows that the German law allows the Framework Decision to be contravened and that the Hearing failed to comply with the principle of the primacy of Union law over the law of a Member State. Its resolution -and the law on which it is based- torpedoes the European judicial area. In relation to this specific case, the margin for interpretation was partly beneficial for the interests of Spain, because it has served to affirm, first, that Carles Puigdemont is not persecuted for his pro-independence ideas, he is not a political prisoner, as regards the facts constituting a crime; secondly, that in the Euroorden an activity appears to be accredited that fits in with the crime of misappropriation of public funds; and thirdly, that the violence imputed to the former president of the Generalitat is accredited in the story that appears in the Euroorder. However, for the German court, the crime of high treason requires a degree of violence intense enough to break the will or ability of action of constitutional bodies and, in their view, in the Euroorden does not state that the violent acts that in it they relate has had that intensity and effectiveness.

The German court's decision has to be appealed at the European Union Court of Justice, given that it contravenes the Framework Decision and opens a breach in the judicial cooperation system between the Union member countries. 

However, this will take time. Meanwhile, it has caused a procedural mess to try Carles Puigdemont and the other leaders of the "proces" in Spain and, incidentally, an injection of morale for the independence movement, accustomed as it is to distort reality.

It remains in the air what qualification the German courts would give to those same violent acts if they had happened in a process of unilateral secession of a "land" promoted by their own institutions and by social movements harassed and financed by them. Those of us of a certain age remember how Andreas Baader, Ulrike Meinhof and their other companions died in German prisons.

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