Josep M. Calvet, 31 January 2023
Carles Puigdemont and Lluís Puig / THIERRY ROGE / AFP
The High Court generally agrees with the examining magistrate but is sensitive to the allegations of the defences
The Court of Justice of the European Union (CJEU) in its ruling on the questions referred for a preliminary ruling by the investigating judge in the case of the procés Pablo Llarena in relation to the European arrest warrant (EAW) against the former minister Lluís Puig refused by the Belgian judicial authorities balances two basic concepts. On the one hand, the principles of trust and mutual recognition between member states, which would be aimed at granting surrender as a general principle, and on the other hand, the fundamental right to a fair trial, which would be aimed at protecting the defendants.
In short, the court, in a Solomonic decision, gives the general reason to Llarena but is sensitive to the allegations of the defendants’ defences – in addition to Puig, Carles Puigdemont, Toni Comín and Clara Ponsatí – and narrows the grounds for refusing the European arrest warrants, This leaves the process more open than what was hinted at in July by the European Union’s Advocate General, Richard de la Tour, who pointed out that the Belgian judiciary overstepped its functions and clearly aligned itself with the thesis of the Supreme Court magistrate. The European High Court has come to qualify that ruling by stating that Belgium can refuse the European arrest warrant if “systemic or generalised deficiencies” in the functioning of the Spanish judicial system and “deficiencies affecting the judicial protection of an objectively identifiable group of persons to which the requested person belongs” are demonstrated.
– 1 Can an EAW be refused for a reason not stated in the Framework Decision or for lack of jurisdiction of the issuing court as Belgium did with Puig?
In general terms, the CJEU rules that the Belgian authorities cannot refuse to execute an EAW on the basis of a ground arising exclusively from their own law, since otherwise the Framework Decision, which regulates such deliveries, would not apply uniformly and Member States would be free to determine the extent of the obligation to execute them. Furthermore, the CJEU rules that the Belgian authorities cannot refuse the surrender on the ground that it was issued by a judicial authority that did not have jurisdiction.
These two issues were two of the key questions posed by the investigating judge of the trial to the High European Court when the Belgian justice denied Puig’s surrender due to the lack of jurisdiction of the Supreme Court to issue the EAW and prosecute the facts, which led the magistrate to paralyse the European arrest warrants until they were resolved. The fact is that these grounds are not explicitly included in the aforementioned Framework Decision.
– 2 Are there exceptions to this general criterion?
The CJEU points out that a refusal of a European arrest warrant must be exceptional in nature. And here the CJEU introduces the reason for this exception: “where such execution would result in the infringement of a fundamental right enshrined in European Union law”. And it specifies that if the person sought alleges that his surrender would expose him to a breach of the fundamental right to a fair trial, because he would be tried in Spain by a court lacking jurisdiction, the Belgian courts must assess the merits of that allegation.
Thus, the CJEU concludes that the Belgian courts may only refuse enforcement on the basis of the lack of jurisdiction of the court if they conclude that there are “systemic or generalised deficiencies” in the functioning of the judicial system of the issuing State or “deficiencies affecting the judicial protection of an objectively identifiable group of persons to which the person concerned belongs” and “there are serious and well-founded reasons to believe that that person would be at such risk if surrendered to that Member State”.
The Court of Justice also accepts the refusal of the EAW on the ground of lack of jurisdiction of the court which will have to try the person (in this case the Supreme Court) only if this is “manifest”. In such a case, it warns that the decision must be preceded by a prior request for additional information from the SC. If this is not the case, it opposes the refusal of the EAW.
The judgment of the High Court also refers to the report of the United Nations Working Group on Arbitrary Detention on those convicted of the procés, which Llarena asked about, and points out that as it does not refer directly to the situation of the person to be surrendered, it does not, on its own, justify the refusal of the EAW. However, it maintains that it can be taken into account for the purposes of assessing “systemic or generalised deficiencies in the functioning of the judicial system” of the issuing state or deficiencies that affect the “judicial protection of an objectively identifiable group of persons”.
Both the aforementioned report, as well as the risks of infringement of the right to a fair trial due to deficiencies in the Spanish judicial system and the fact that the defendants belong to a national minority, have been arguments reiterated by the defences that have found refuge in the CJEU’s text.
– 3 Can Llarena issue new European arrest warrants?
The CJEU states that several successive EAWs may be issued against a requested person in order to obtain his surrender by a Member State after that State has refused to execute a first EAW directed against that person. However, the execution of the new EAW must not result in a breach of that person’s fundamental rights and its issuing must be “proportionate”.
The defendants’ lawyers understand that the warning on the proportionality of the new EAWs limits Llarena’s ability to reissue them.