Misc 27/03/2018

What can we expect from the German judge?

High treason and rebellion are similar in that they are both characterised by violence

Javier Pérez Royo
3 min

Professor of Constitutional Law (University of Seville)In fact, the title should read "from the European Judge", since judges from four countries will have to rule on the European Arrest Warrant (EAW) issued by Judge Pablo Llarena. But since all eyes are on Germany, I shall focus on the possible or probable response of the German judge.

As I am sure you found out on Sunday, if you weren’t already aware, the EAW allows for the immediate repatriation of the suspect by the judge of the country in which they have been detained. Said repatriation could be automatic, without the need for the German judge to analyse in the slightest the specific content of the EAW issued by Llarena.

This would have been the case if the offences of which Carles Puigdemont stands accused featured on the list of crimes for which this automatic repatriation is intended. However, rebellion is not one of them. Consequently, the German judge is not only allowed to, but indeed obliged to carry out an analysis of the facts surrounding the crimes of which Carles Puigdemont stands accused in order to find out whether or not they constitute the crime of rebellion.

This is the key to the question. As you may have learnt on Sunday, according to the German Criminal Code, there exists the crime of high treason, typified in terms that are not identical —but which some claim are comparable— to those of the crime of rebellion under the Spanish Criminal Code. From this point of view, assuming that the similarity stands, Puigdemont’s legal position before the German and the Belgian judges is different, as the crime of rebellion does not exist in Belgium’s Criminal Code.

The crime of rebellion in the Spanish Criminal Code is defined in a different way from the crime of high treason in the German Criminal Code. The closest offence to the German crime of high treason under Spanish law can be found in article 102.2 of the Spanish Constitution. This states that, "The President (of the government) shall be held criminally liable", if "the charge is of treason or any offence against the security of the State is committed".

However, let's imagine for a moment, no small thing, that there is a certain similarity between the German crime of high treason and the Spanish crime of rebellion. It does not necessarily follow from this that the German judge can proceed to accept the version of events as outlined in the EAW issued by Judge Llarena as constituting the crime of rebellion, however. The apparent similarity between the two merely allows the judge to agree to consider the EAW, but nothing more.

The German judge has the obligation to study the European Arrest Warrant and verify whether Carles Puigdemont's conduct can be classed as rebellion. And if it can be maintained in terms that confirm a certain degree of "similarity" between the German and Spanish criminal codes. In other words, if Carles Puigdemont’s conduct as described by Judge Pablo Llarena in the EAW constitutes an act of violence of the criminal kind both in terms of high treason and of rebellion.

High treason and rebellion are similar in that they are both characterised by violence. Without violence neither one nor the other exists. And not any form of violence, not the existence of violent incidents, but a violence planned from the initial moment of the uprising, in order to achieve the objectives outlined both in the German and Spanish Criminal Code. A ‘’violent uprising’’ is not the result of the juxtaposition of an adjective, and a noun, instead the two must be indivisibly linked from its inception to its completion. This is indivisible pair is crucial when deciding what constitutes the crime according to the law.

This is the practically unanimous interpretation of violence under both Spanish and German law. For violence of a criminal nature to exist it must be physical violence, against people, not against property, and of an exceptional nature. Without these characteristics, violence or violent episodes may constitute a criminal offence, but not the crime of rebellion or high treason. This is what the German judge will have to confirm first and subsequently justify, if he considers that he must accept the EAW issued by the Spanish judge.

My impression is that he will not be able to do so, since as Professor Francisco Javier Álvarez García explained yesterday in the Tribuna Abierta blog [Open Platform], "with the information on the table (found in the court’s resolutions) one cannot state that the Catalan politicians recently brought before the Supreme Court’s examining magistrate have committed a crime of rebellion".