European justice is inclined to support Judge Pablo Llarena in the face of Belgium's refusal to hand over former Minister Lluis Puig to Spain. The conclusions of the General Advocate of the European Union, Richard de la Tour, published today indicate that the Belgian justice exceeded its functions and are clearly aligned with the thesis of the magistrate of the Supreme Court on the resolution of the European orders that weigh against Puig.
The report refers to the former minister but, in practice, it will also serve to clarify the procedural situation of Carles Puigdemont and the rest of the Catalan politicians whose delivery Spain demands. The European sentence, which will be issued at the end of the year, will determine what margin Belgium has to deny the execution of their respective European orders, once the appeal presented by the former president on the decision of the European Parliament to lift their immunity is resolved. If the Advocate General's criteria are followed, it will be very rare, which once again opens the door to Puigdemont's extradition.
“A judicial authority cannot refuse the execution of a European arrest warrant based on the risk of violation of the right to a fair trial of the requested person if the existence of systemic or generalized deficiencies that affect the judicial system of the Member State is not demonstrated. issuer”, the Advocate General clarified today in response to preliminary questions sent by Judge Pablo Llarena to the Court of Justice of the EU (CJEU).
Assuming that the European magistrates follow the same criteria, this means that Belgium should not deny the surrender of the Catalan politicians whose surrender Spain demands, including the former president, if it cannot demonstrate that there are "systemic or generalized deficiencies" in their judicial system. Nor can the country receiving the European warrant deny its execution on the grounds that the issuing judicial body lacks the competence to issue that order or prosecute the person sought, as Belgium did by denying the delivery of Puig, clarifies the preliminary report published today in Luxembourg.
"Authorizing such control would contravene the principle of procedural autonomy, according to which Member States can designate in their national law the competent judicial authority to issue arrest and surrender warrants, and the principle of mutual recognition", states the report, which recalls that this principle is the "cornerstone" of judicial cooperation in criminal matters. "The execution of the European arrest warrant constitutes the rule, while the refusal of execution is conceived as an exception that must be subject to strict interpretation", affirms the Advocate General of the EU.
Belgium denied Puig's extradition in January 2021 alleging, on the one hand, that the Spanish Supreme Court was not competent to try him, since in his opinion the High Court of Catalonia should do so and, on the other, that he appreciated a risk of violation of their fundamental rights, in particular the presumption of innocence, in view of some public statements made at the time by several Spanish magistrates. The Advocate General today disfigures Belgium, in damning terms, such an attitude.
"An in-depth verification, by the executing judicial authority, of the existence of a risk of violation of the fundamental right to a fair trial when there are no systemic or generalized deficiencies in the functioning of the judicial system of the issuing Member State would be nothing more than the expression of mistrust towards the courts of that Member State, contrary to the principles of trust and mutual recognition", it concludes.
Finally, in another key pronouncement in favor of Judge Llarena's theses, the Attorney General indicates that the Framework Decision on the euro-order "does not oppose" the issuance of a new order "against the same person" and addressed to the same country " when he has refused the execution of a previous European arrest warrant in contravention of Union law". If the CJEU followed this criterion, Llarena would have free rein to re-issue European orders that were denied. The study and eventual execution of it, however, cannot be carried out until the European justice makes a final decision on the parliamentary immunity of some of those affected.
Although the preliminary ruling by the Advocate General is not the Court's final ruling, it does guide it and in around three out of four cases the European magistrates follow its argument. The sentence in response to the questions of the Supreme Court judge could be known at the end of this year.
The case of the Spanish Euro-orders against Puigdemont and several Catalan politicians for their role in the pro-independence process is not the only one that in recent times has brought to Luxembourg the thorny question of to what extent should the judicial authorities trust the judgment and performance of their counterparts in other countries of the Union. In February, the CJEU, at the request of the Netherlands and regarding the surrender of a Polish citizen, in view of the existence of "systemic or generalized deficiencies" in its judicial system since 2017, ruled that an extraordinary A national judge can deny the execution of a European warrant based on the personal situation of the affected party and the nature of the crime.
The debate, however, has multiple ramifications. In another recent pronouncement, the EU Advocate General considered that a European warrant should not be denied by the executing country because the crime for which the person is persecuted is not punishable in its legal system. This report, which was received with joy in the Supreme Court according to the Europa Press agency, considers that Germany erred in determining that Puigdemont's extradition was possible based on the crime of embezzlement, but not that of rebellion. Just today, in a case emanating from France, the Court of Justice of the EU has determined that it is not necessary that there be "a perfect correspondence" on the infraction in the member state of issuance of the euroorder and the one of execution.
