What can we expect from the European judge?
The decision —rather, the decisions— will be formally national, but de facto European
From a formal viewpoint, there are four jurisdictional bodies from four European countries that need to rule on the European arrest warrant issued by Spanish judge Pablo Llarena. Each one is expected to issue a ruling on a single, individual case, except for the Belgian judge, who will do so on two cases. Therefore, we cannot speak of a single “European judge” who is expected to reach a decision, as the title of this article would suggest.
Nevertheless, while there isn’t a single European judge as such, I believe that de facto there is. Each and every one of the judges will decide on their own. But every one of them knows that the individual cases that they are expected to decide on are all linked by a common thread. And all of them realise that this affair has taken centre stage as far as Europe’s public opinion is concerned, as a browse through the papers will easily confirm. And it is not just Europe’s public opinion: recall the recent NYT editorial.
There are times when a decision by one nation’s jurisdictional body becomes a reference for the others. The case of the Canadian Supreme Court’s opinion on Quebec springs to mind. Even though it was not a ruling —it was not prompted by a court case, but by a formal enquiry from the federal government— and, therefore, it did not set a trial precedent, this opinion has become the single most influential piece of doctrine on what the right to self-determination is —and what it is not—, as well as on the conditions under which a secession referendum may be held within a democratic country.
The cases on which the German, Swiss, Belgian and Scottish judges must rule are formally separate and individual, but there is a shared link: what constitutes a crime of rebellion in a democratic European country well into the 21st century?
That is the question that must be answered by the four jurisdictional bodies of the four nations where the Catalan nationalist politicians are held and against whom the European warrant has been issued. And all four judges know that their answer will establish a European common denominator on the subject of rebellion crimes. Even if they do it in their own individual way, together they will decide what a crime of rebellion is and what it is not; what sort of “violence” is required for an event to be characterised as a crime of rebellion.
Make no mistake: the decision —rather, the decisions— will be formally national, but de facto European. Rather than four individual decisions, we will see four concurrent votes on a single decision. All of them will seek the European common denominator, something that can be objectively and reasonably justified in front of Europe’s public opinion.
At any rate, that European common denominator could never be the content of the brief or the warrant issued by Justice Llarena. On the subject of the crime of rebellion, all four judges will dismiss the arrest warrant. They will not allow the Catalan politicians to be tried for rebellion in Spain because it is impossible for the European judges to make that sort of collective decision. And they know that they cannot make contradictory decisions.
Spain’s Public Prosecutor, Audiencia Nacional and Supreme Court have been playing with fire and they will get their fingers burnt. It is impossible for Europe to agree with Spain’s top judicial bodies in their definition of the crime of rebellion in the case of the Catalan nationalist politicians. Some voices in media and academia have taken for granted that, following Carles Puigdemont’s arrest in Germany, the Catalan leader would be handed over to the Spanish authorities under the terms that Justice Llarena has laid out. It is not going to happen. All that Spain’s justice will achieve is to see its prestige in Europe eroded even further.