CJEU advocate general agrees with Spanish judge on arrest warrants for Catalan exiles

He concludes Belgium could not refuse Puig's extradition without proving "systemic deficiencies" in Spain's rule of law

3 min
Carles Puigdemont, Toni Comín and Lluís Puig yesterday leaving the court.

BarcelonaCatalan exiles have received a first negative response from the Court of Justice of the European Union (CJEU), although it is not yet a final ruling. This Thursday the court's advocate general has issued his opinion – which is not binding, but it sets the trend for the case – on the preliminary questions Supreme Court judge Pablo Llarena asked and, at first, agrees with him. Llarena is seeking to amend Belgian courts' rejection of former Catalan minister Lluís Puig's extradition and reduce European States' margin to reject a European arrest warrant. For the time being, Llarena has convinced the advocate general of the CJEU: Richard de la Tour says that Belgium cannot refuse a European arrest warrant because of the risk of violating the presumption of innocence – as it did in Lluís Puig's case – if the "systemic and generalised deficiencies" of the judicial system have not been proven on the basis of "objective, reliable, precise and duly updated data".

He also questions whether Belgium (or any other state) can prove these "systemic or generalised deficiencies" exist in a specific case, as it would be an "expression of mistrust towards the courts" of the member state issuing the European arrest warrant. He thus states that "the principle of mutual trust between Member States, which is of paramount importance because it allows the creation and maintenance of an area without internal borders, must be fully implemented, so that they can achieve the objectives of accelerating and simplifying judicial cooperation and the objective of combating impunity".

At the same time, the Advocate General believes that the States cannot decide on the competence of the person issuing the European arrest warrant because it violates the "procedural autonomy" of the States and also the "principle of mutual recognition" which is necessary, he says, in the system of European "judicial cooperation". The two theses are in line with what Supreme Court judge Pablo Llarena claims and go against the Belgian courts' rulings.

It also claims that Llarena can reissue European arrest warrants against the same person in the same State even if the State has already refused extradition if it has been done "in contravention of EU law". He argues that: "Imposing a limit on the number of European arrest warrants that can be issued would call into question the effectiveness of the system of judicial cooperation and weaken efforts aimed at effectively sanctioning offences within the area of freedom, security and justice." In this sense, if the court were also to support this thesis, the Supreme Court could re-issue previously rejected European arrest warrants in an attempt to overturn them.

Llarena's strategy in this case is to obtain a resolution stating Belgium exceeded its functions when rejecting the European arrest warrants and thus set a reduced playing field for exiles, making it easier for Spain to obtain their extradition. In this sense, the case of former president Carles Puigdemont, whose case was dismissed by the Italian authorities when he was arrested in Sardinia, still needs to be resolved – it was posponed until after a decision by the European Court of Justice. If the court agrees with the advocate general, the Euro warrant against the former president can be revived either in Italy or in Belgium, which is where he lives.

Case on immunity pending

But a key case will still be missing to assess whether the European justice aligns itself with the Supreme Court or paves the way for exiles to return without fear of being arrested: MEP immunity. MEPs Puigdemont, Toni Comín and Clara Ponsatí appealed against the decision by the European Parliament to approve the suspension of their parliamentary immunity requested by the Spanish Supreme Court. If their appeal is upheld, they could move freely throughout the European Union – including Spain – with the court's backing. If not, they would no longer be able to move around European states without the risk of being arrested. For this case, however, there is still no resolution date.