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How Spain’s EAW gambit threatens European judicial cooperation

Thursday, 9 November, 2017 - 16:12

When ousted Catalan president Carles Puigdemont chose to defy a Spanish court summons and remain in Brussels, he set off an intra-European extradition dispute whose effects could carry on long after tensions between Madrid and Barcelona abate. While the rest of the European Union tries to avoid getting dragged in, Puigdemont’s standoff with Madrid may set off one of the more pivotal battles in EU legal history.

That battle will have plenty of time to unfurl. Madrid has issued a European Arrest Warrant (EAW) to bring Puigdemont back to Spain, but the Brussels Prosecutor’s Office claims the extradition process could take over two months.

In retrospect, the Spanish state prosecutor’s move to detain the deposed Catalan leader (and four other ministers) using the EAW may prove to be a hasty, ill-informed decision. By resorting to the EAW to deal with a political crisis, Madrid has handed the renegade regional leader and his allies an opportunity to claim politically-motivated legal persecution and denounce the legal proceedings as seeking to “punish ideas.” Those claims will only grow louder as Catalan officials like parliamentary speaker Carme Forcadell are brought up on charges of “rebellion and sedition.”

Looking beyond Catalonia, that argument also opens a door for others hoping to avoid being extradited. While it may make for a convenient talking point in individual cases, a public perception that the EAW is a political weapon as opposed to a legal mechanism could throw the entire precept of mutual trust which underpins impartial, trans-European legal cooperation into doubt.

This is not to say Puigdemont set the wheels into motion himself. Other prominent EAW cases from the past few years offer him a playbook to attack the credibility of the Spanish judicial process and the legitimacy of the extradition attempt. One of the most notable is the case of Romanian mogul Alexander Adamescu, on the run from fraud charges in Romania after the collapse of the country’s second largest insurance firm saw his father imprisoned for bribing judges.

The younger Adamescu, deeply implicated in his father’s business dealings, fled to London. From there, the Romanian businessman fought extradition by claiming the EAW against him was a politically motivated attempt by the Romanian government to seize his assets. A campaign organized on his behalf found support in a number of Eurosceptic British publications, portraying him as a persecuted playwright and (more importantly) damaging the perception of a key EU mechanism in the months before and after the Brexit referendum.

Ironically, the EAW system was designed to do away with political interference in controversial extradition cases. By requiring that the criminal offence leading to extradition warrant a penalty of at least one year in an EU prison, the EAW is typically seen as a useful tool in combating terrorism and serious crime in the EU. Despite protestations to the contrary, high-profile success stories abound. Fugitive bomber Hussain Osman was extradited from Italy in 2005 after attempting a terror attack in London, while in 2012 Briton Jason McKay was arrested in Warsaw and returned to the UK (to face trial for the murder of his wife) within a month.

The EAW doesn’t allow for refusal to extradite on grounds the suspect is claiming political asylum, but an EU country may still refuse extradition requests if it feels the individual is being targeted for reasons relating to “sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation.” Mutual trust between the EU member states involved is always an essential component of the process.

Unfortunately, the decisions being made by both Spanish and Catalan leaders are hollowing out legal and democratic institutions not only in their own country but across Europe. Spain has justified strong-arm tactics in response to Catalonia’s declaration of independence with appeals to the rule of law, but that stance does little to calm anger over the images of national police raiding polling stations and firing rubber bullets at voters. Meanwhile, supporters of Catalan independence portray their moves as democratic when they are not. The late-night parliamentary vote on independence was boycotted by most of the opposition, and only 43% of Catalans actually took part in this years’ referendum.

By relying on force and coercion to tackle the problem, Spain is inviting allegations that it wants to criminalize political dissent. In Puigdemont’s case, a rebellion charge can carry a 30-year sentence, and Belgian lawyers warn there is little wiggle room for Belgium to deny the warrant. Even so, Puigdemont has the right to challenge the extradition request through the Belgian legal system – and it appears that he intends to do so. If Brussels recognizes his fundamental rights and freedoms as being at risk, Puigdemont may end up remaining in Belgium as a vocal thorn in the side of relations between Madrid and Brussels – a Catalan Julian Assange, if you will.

As such, the Spanish warrant for against Puigdemont could turn out to be a double-edged sword for Spain – but also for the EAW itself. Jean-Claude Juncker was right to reject European intervention in Catalonia as a road to “a lot more chaos,” but the EU is to well within its remit to preserve the integrity of one of its most critical law enforcement tools. To do that, Juncker and his fellow EU leaders should not hesitate to push both Spain and the Catalan independence movement to look for democratic solutions out of this crisis instead of using European institutions against one another.

There are promising signs that the dispute is heading in this direction. By announcing that Madrid will “explore the possibility” of changing the Spanish constitution to provide for independence votes like the one Catalonia held illegally last month, Spain’s foreign minister Alfonso Dastis showed a newfound perspicacity on the part of Mariano Rajoy’s government. It likely will not be enough to appease the vanguard of those seeking independence, but it is an important step towards compromise.


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