31.01.2023 - 21:20
Actualització: 31.01.2023 - 21:24
Gonzalo Boye, Isabel Elbal, Andreu Van den Eynde and Benet Salellas must have sweated profusely last April at the Luxembourg Court. Indeed, they were all swimming against the tide at the oral hearing on the case of Pablo Llarena’s European arrest warrants against the Catalan exiles, held in the large courtroom. Not even Belgium supported them that day. And a few months later, the court’s attorney general threw all their arguments into the proverbial dustbin. But they have come out ahead, and in fact have managed to shift the court’s opinion to their favour by getting it to recognise the predicament of the pro-independence leaders persecuted by Spain. From today, such an anomaly is accounted for in the court’s terminology: that of the risk of deficiencies in the functioning of the rule of law applicable “to an objectively identifiable group of persons”. It is a novel concept that the court has introduced in this judgment and, more significantly, has done so in a case that concerns Spain. Not Poland, Hungary or Romania, but the Spanish state.
Spain, the European Commission and the attorney general has previously said that, in order to refuse a European arrest warrant on account of the risk of violating a right such as that of the judge predetermined by law, it was necessary to demonstrate that there were systemic, generalised deficiencies in the judicial system of the state requesting an extradition; were this not the case, the European arrest warrant could not be refused. In reality, the court’s jurisprudence says that, in the case of such generalised deficiencies, it is necessary for the requested person to argue with objective and demonstrable evidence that they would be at risk if extradited. The court had been saying so in judgments relating mainly to Poland, where there are objective elements that make it possible to conclude that the rule of law is not functioning adequately.
Is Spain not Poland?
Spain is not Poland. But Boye, Elbal, Van den Eynde and Salellas were trying to get the court to understand that, when it comes to Catalan pro-independence leaders, Spain is Poland. And that is why they used the idea of a group of people who run a specific risk — be it for political or ideological reasons. The Spanish part, represented by the Spanish public prosecutor and state attorney, had it as its upmost priority to demonstrate that the Spanish judicial system works as it should, and thereby has already offered sufficient means of recourse to the exiles.
Gonzalo Boye began the hearing by referring in that April hearing to the Catalan national minority, but the court needed a concept that would allow it to translate this particular situation –or the particular situations that other groups of people persecuted for reasons of race, religion, nationality, may suffer in other states– into EU doctrine. And, in the end, they came to find such a concept: that of the “identifiable group of people”.
Catalan lawyers came out of that oral hearing in Luxembourg exhausted, having declared to fifteen judges who all had particular –and often opposing– points of view. As such, it was not at all clear that they had come to embrace such an idea. What had been made evident, on the other hand, is that there was a sector of judges who did not understand that the particular circumstances of the requested person should not be taken into account when deciding whether to refuse a European arrest warrant. This is what the attorney general of the ECJ, Richard de la Tour, had put argued, leading the court to publicly correct him — a rather uncommon occurrence. But the concept of the group of persons at risk represents a leap forward for the exiles, because it allows the specificity of the Catalan case to be incorporated into EU law. And, more specifically, it offers the judges who have to decide on the European arrest warrants a legal instrument to reject them.
It is clear that the ruling limits the grounds for refusing an extradition. The ECJ says that one cannot simply question the competence of a judge to issue a European arrest warrant, or the competence of the court that is to try them. It argues, more specifically, that it is necessary for the person concerned to provide “objective, reliable, precise and properly updated information tending to show the existence of systemic or generalised shortcomings in the functioning of the judicial system of that member state, or shortcomings affecting the judicial protection of an objectively identifiable group of persons to which that person belongs”.
The victory of the UN Working Group
And how would this be demonstrated? Where would these “objective elements” –this evidence that there is a risk of a violation of fundamental rights– come from? This leads the court to respond to another of the questions posed by Pablo Llarena concerning the validity of a report by the UN Working Group on Arbitrary Detentions that was made public during the final phase of the trial against the Catalan leaders in the Supreme Court, and which argued –with unusual bluntness– that the Spanish judicial system had violated several of the fundamental rights of the Catalan political prisoners, ultimately demanding their immediate release. The report, indeed, found that the charges against all of them “were designed to coerce them for their political views on Catalan independence and to prevent them from pursuing their demands by political means”. Among the rights that had been violated, the report pointed, in particular, to the right to a judge predetermined by law. It stated, bluntly: “The Working Group has not been convinced that the right to a judge predetermined by law to try them for these alleged crimes corresponds to the courts currently hearing the case”.
Belgium capitalized on the report to justify the refusal of the European arrest warrant. Llarena asked the ECJ whether the report was a valid document, given that both the Supreme Court and the vast majority of the Spanish media and jurists and parties have been relentlessly dedicated to despising and discrediting its authors — accusing them of being corrupt, of being friends of the pro-independence camp, of having received money from the Generalitat, of being a second or third rate entity that could not be considered serious or even be granted the status of a UN body. The ECJ, for its part, argues that the results of this working group alone cannot justify the refusal of a European arrest warrant as long as it does not refer directly to the person concerned by the extradition request. As it goes on to add, however, such a report “may form part of the elements which may be taken into account” when determining that there is a deficiency in the rule of law vis-à-vis this group of identifiable persons.
The bombshell on the 100th paragraph
On the 100th paragraph of the ruling, however, the court goes even further than this. Indeed, it provides the argument that allows is to affirm that the Spanish Supreme Court is not competent to judge the leaders of the pro-independence movement: “A supreme national court which delivers a judgement on a penal case without having an express legal base which confers it competence to trial the defendants as a whole cannot be considered a court predetermined by law, in the sense of the first section of the sixth article [of the European Convention on Human Rights]”.
In this regard, the court cites two ECHR rulings, one from 2000 and another from 2005. One of them, incidentally, is against Belgium itself, in a case in which the ECHR stated that defendants could not be tried in the Belgian Court of Cassation (equivalent to the Spanish Supreme Court) if there was no legal provision to that effect. The lawyers of the exiles, in the case Lluís Puig, used precisely this ruling — the same which the ECJ now uses as an example to highlight that it is a similar case to that of Spain’s Supreme Court.
The Luxembourg Court thus outlines the way forward: firstly, it is true that the competence of the judge issuing a European arrest warrant cannot be questioned in any way; secondly, its refusal must be exceptional and thereby grounded on reliable evidence that there is a personal risk of a violation of rights –in the context of a systemic failure of the judiciary in a general or specific way– against a group of identifiable persons. Thirdly, that on the question of the violation of the right to a predetermined judge by law, ECHR case law says that a supreme court cannot have jurisdiction to try individuals if the law of its state does not explicitly say so. Herein are the instructions for refusing the European arrest warrants against the Catalan exiles.
Llarena’s hands tied
There is another of the ECJ’s answers that has been used by virtually the entirety of the Spanish press to argue that Llarena has effectively won the case in Luxembourg: that new European arrest warrants can indeed be issued against a person who has previously been denied one by the judicial system of a state, as in the case of Lluís Puig. Because it offers this response not only vis-à-vis the case of Lluís Puig, but also with broader a view to establishing a precedent for the EU as a whole, the court cannot categorically say that new European arrest warrants cannot be issued against anyone: there may be cases where this is justified. And, precisely for this reason, it then goes on to establish the conditions for issuing a new European arrest warrant which, in practice, make it very difficult for Llarena to do so — or at least for them to be accepted from the outset by any European jurisdiction, starting with Belgium.
The ECJ says that there are exceptions which, coincidentally, accord perfectly with the case of Lluís Puig. The court cannot pronounce itself on a specific case in the responses it publishes: it must phrase them in such a way that the arguments it puts forward become applicable to any European court. Nonetheless, the ECJ’s response in this case tacitly offers an understanding of its position regarding this particular case, something which becomes evident in the conditions it places on Llarena for issuing new European arrest warrants: “If circumstances have not changed, an issuing judicial authority may not issue a new European arrest warrant against a person where an executing judicial authority has refused a previous European arrest warrant issued against that person […] in relation to Article 47, second paragraph, of the [European] Charter [of Fundamental Rights, on the right to a fair trial]. ” That is the case of Lluís Puig with Belgium.
Pablo Llarena is clearly not confident in his own case; otherwise he would have already issued a new European arrest warrant against Puig by now. But he has not done so; the Supreme Court says it must look into it calmly. The court may argue that, with the new Spanish criminal code, “circumstances have changed”, but then it is also important to read what the CJEU otherwise says about the reissue of European arrest warrants: “As the issuing of a European arrest warrant may have the consequence of arresting the person concerned and thus curtail their individual freedom, it is necessary for the judicial authority aiming to issue a European arrest warrant to examine whether, when taking into account the particularities of the specific case, such an issuance is proportionate in nature”. And, further on, it tells Llarena that he must take into account “the nature and seriousness of the offence whereby the person sought is charged, the consequences for that person of the European arrest warrant or warrants previously issued against them, or even the prospects of execution of a possible new European arrest warrant.”
In other words, it makes clear that the European warrant system cannot be abused. And here we can see the hand of the rapporteur, the court’s vice-president Lars Bay Larsen, who in a ruling last May on the provisional immunity of Puigdemont, Comín and Ponsatí already found that Llarena had abused it — that he had not rejected the exiles’ claims to that effect.
The dominoes begin to fall
Throughout the nearly forty pages of the ruling, the court makes certain concessions to make it clear –almost diplomatically– that mutual trust between states must continue to prevail for European arrest warrants to be effective, that refusals must always be exceptional and for very well documented cases. With the ruling on the exiles’ case, the ECJ clarifies more instances in which this applies, something from which it had hitherto refrained from spelling out: a case in which the rule of law functions correctly in appearance but exhibits a manifest dysfunction with regard to a specific group of people, as the Working Group on Arbitrary Detention found and as Belgium ruled.
It argues that Belgium acted in accordance with EU law when it rejected the European arrest warrant against Lluís Puig; that the refusal was not against the law. And this could very well mean that, should Belgium receive a new European arrest warrant, it will go on to reject it with practically the same arguments as before. Now, the ECJ tells Belgium that it must order and systematize the refusal procedure and the arguments to that effect. This is precisely why this ruling can be considered a victory for the exiles, the consequences of which we will have to wait and see, both for the exiles in general (in that it raises the difficulty in extraditing them, even in case there are more European arrest warrants), for the MEPs (because the arguments to deny the competence of the Supreme Court can suddenly overturn the case against the request that the CJEU has in its hands) and for the political prisoners, who now have a powerful argument in their favour to pursue the Strasbourg Court to annul Marchena’s conviction.
This is the most tangible result of the strategic litigation pursued by the exiles, one which not all parties involved believed in. The first victories in Belgium and Germany against the European arrest warrants contrasted with the judicial punishment for the political prisoners, something which the Working Group on Arbitrary Detention recorded in a devastating report that served to definitely overturn the European arrest warrant against Lluís Puig in Belgium. This failure led Llarena to ask the ECJ these preliminary questions, while Puigdemont, Comín and Ponsatí were already MEPs and were also litigating in Luxembourg to assert their parliamentary immunity. Today’s ECJ response may help the latter win the case of their parliamentary immunity, providing the jurisprudential basis for the ECHR to rule that Spain violated the right of the political prisoners to an impartial judge. It also gives credence to the report of the Working Group (in case there was any doubt remaining) to support a ruling grounded on further right violations, such as freedom of expression, freedom of assembly or the right to political participation.
As it stands, Boye says that the dominoes are falling. And it is true that the battles in Luxembourg and Strasbourg are beginning to converge after several years and with practically no unity of action. It is hard not to think what might have happened — what the results would have been if this united front between Boye, Van den Eynde and Salellas were not an exceptional event. Because, after many hours of preparation and coordination, in one morning and one afternoon they were able to get the CJEU to recognise the specificity of the Catalan case.