The cause of 1-O Judge Llarena withdraws the crime of sedition against Puigdemont but keeps him prosecuted without lowering the embezzlement
Catalonia Puigdemont will continue on the run: "I will not return handcuffed or surrendered before a Spanish judge"
The Court of Justice of the EU has given the reason to a large extent to magistrate Pablo Llarena on Tuesday in the case that affects the Euro-order issued by the Supreme Court in which Belgium is asked to hand over
, one of the former ministers of Carles Puigdemont who fled in 2017. But he has done so with less forcefulness than the general lawyer, opening some loopholes in principle to the doubts of the Belgian Justice.
The judgment of the high court of Luxembourg establishes that a judicial authority cannot deny the execution of a European arrest warrant based on "the risk of infringement of the right to a fair trial of the requested person", at least not if the existence of "systemic or widespread deficiencies affecting the judicial system of the issuing Member State".
That is: "in principle" Belgium cannot continue to deny the capture of the former
, because if there are no deficiencies of this nature, and it is not proven in the case of
, considered a full-fledged State by the Union, it cannot be founded a refusal on the allegation that the Supreme Court lacks jurisdiction.
The sentence, however, seems to open some cracks.
Thus, the document reads that "the executing judicial authority that has to decide on the surrender of a person against whom a European arrest warrant has been issued", that is, the Belgian one, "cannot deny the execution of said arrest warrant on the grounds that that person runs the risk of being prosecuted, after his surrender to the issuing Member State, by a court lacking
jurisdiction for that purpose".
But it adds "unless that judicial authority has objective, reliable, precise and duly updated elements that reveal
the existence of systemic or widespread deficiencies in the functioning of the judicial system of the issuing Member State or of deficiencies that affect the judicial protection of an objectively identifiable group of persons to which the data subject belongs, in light of the requirement of a court established by the law, which imply that the affected parties are deprived, in general, in said Member State, of an effective legal channel that allows controlling the competence of the criminal court that has to prosecute them".
Does Belgium have these objective, reliable and precise elements?
In principle no, but a small margin of interpretation is generated.
The pro-independence politicians have declared themselves politically persecuted, which Belgium could at least use so that it is not something automatic.
There is a possibility, albeit remote, and given the facts, it is possible that the local magistrates cling to that possibility, that of having "verified that, in the particular circumstances of the matter in question, there are serious and accredited reasons to believe that, taking into account, in particular, the information provided by the person who is the subject of the European arrest warrant regarding his personal situation, the nature of the offense charged against him,
The sentence says that the complaints of the defendants are not enough by themselves nor are they relevant for these purposes, but they can be one more element if evidence is accumulated to decide on the violations.
THE CJEU constantly refers to the Framework Decision and says that any analysis that questions the competence of Spain or the situation of the Rule of Law must stop there.
"That a person alleges that, once handed over to the issuing Member State, he runs the risk of being prosecuted by a court lacking jurisdiction for this purpose, the existence of a report from the Working Group on Arbitrary Detention that does not directly refer to to the situation of that person cannot justify, on its own, that the executing judicial authority deny the execution of that European arrest warrant," the text says.
But it adds that "the report can, on the other hand, be taken into account by said judicial authority, among other elements,
Since their arrival in this country, the judicial authorities have done everything possible not to arrest, retain and, of course, hand over Puig, Puigdemont, Toni Comín and Clara Ponsatí.
The case of the last three is very unique, because they are MEPs with full rights, including immunity.
Which makes them untouchable for now, at least until the various cases that are open are also resolved in the CJUE.
Processes to determine if they are entitled to that immunity, if their accreditation is valid despite the fact that they never complied with the national procedures and if the request granted by the plenary session of the Chamber to lift their immunity and that they can be tried in Spain was in accordance with the norms or not, as they maintain.
But the case of Puig is the most striking.
He is not a legislator, he does not have immunity nor is he claimed for sedition or rebellion, but rather for embezzlement.
And yet Belgium says no.
The last time he maintained that the Supreme Court is not competent to issue a Euro-warrant and that he had doubts about whether the rights of prisoners are respected in our country, totally buying the argument of the defense.
Llarena in his letter denounces "the profound ignorance" of the Spanish system, since the Belgians assume the ability to decide which would be the appropriate one, and they invent a Supreme Court of Catalonia, which does not exist.
For this reason, Llarena, after years of being exposed by the judicial system of several European countries, decided to appeal to the CJEU with a series of preliminary rulings.
Questions in which he asks to define what are the limitations of a
European Arrest Warrant
(EAW) and under what conditions they can be denied.
Llarena wanted to know if EU law grants the executing body the power to control the competence of the issuing body.
The question has a very deep charge, since the Framework Decision that regulates Euro-orders does not give any type of control power to the country that must execute it, since the very basis of everything is the principle of mutual recognition of judicial decisions.
And if Belgium arrogates that power, Llarena affirms, the entire system would be undermined.
The Grand Chamber of Luxembourg establishes in its decision that the executing judicial authority, that is, the Belgian one, "may only deny the execution based on the lack of jurisdiction of the court that will prosecute the person sought if it concludes that, on the one hand, these deficiencies exist in the issuing Member State, and, on the other hand, the lack of jurisdiction of that court is manifest".
It is one of lime and the other of sand.
Thus, apparently it opens the door for Belgium or other countries to pronounce on other systems, but at the same time it greatly limits their margin.
The Court of Justice adds that, "by virtue of the obligation of sincere cooperation, the refusal of enforcement based on a manifest lack of jurisdiction of the court that will prosecute the person sought must be preceded by a prior request for additional information to the issuing judicial authority, in accordance with the provisions of the Framework Decision".
In other words, he cannot decide on his own, but must consult his doubts directly, something that he did not do with Puig.
Finally, the Grand Chamber says that Llarena can issue as many warrants as he wants as long as it is not disproportionate, since the legal framework "does not preclude the issuance of several successive European arrest warrants against a wanted person in order to obtain their surrender by a Member State after the execution of a first European arrest warrant directed against that person has been refused by that Member State, provided that the execution of a new European arrest warrant does not lead to the infringement of Article 1(3) , of Framework Decision 2002/584, in its amended version, and that the issuance of this latest European arrest warrant is proportionate".
According to the criteria of The Trust Project
Ministry of Defence
Pablo Llarena Conde