On 31 January 2023, the Grand Chamber of the Court of Justice of the European Union (ECJ), seated in Luxembourg, which under Art. 19 para. 1, second sentence, of the TEU, ruled on a multi-point reference for a preliminary ruling from the Spanish Supreme Court Judge Pablo Llarena, holding that a European Union state must normally execute a European arrest warrant, but may refuse to do so if the person to be extradited can credibly show that he or she belongs to a group of persons objectively identifiable as such, whose fundamental rights are not adequately protected in the state seeking extradition.
Since this is directly applicable to the case of the Catalans politically persecuted by Spain with the means of the Spanish judiciary, future European arrest warrants against the Catalan politicians will also not be enforceable. Furthermore, in accordance with the old principle of «ne bis in idem», the European Court of Justice stated that once the judiciary of a member state has refused to extradite a person wanted on a European Arrest Warrant, no further European Arrest Warrant may be issued against the wanted person on the same matter. Any further arrest warrants based on other charges are permissible, but must be proportionate.
On 31 January 2023, the European Court of Justice defined new criteria for the execution of European arrest warrants, which make it unlikely that Belgium or even other states of the European Union will comply with a further Spanish extradition request in the case of the politically persecuted Catalans.
Of particular importance are paragraphs 99-100 of the judgment (bold not in original):
«99. It follows from the case-law of the European Court of Human Rights on Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, delivered in Rome on 4 November 1950, which must be taken into account when interpreting Article 47 of the Charter (see, to that effect, Joined Cases C-428/21 PPU and C-429/21 PPU Openbaar Ministerie (Right to be heard by the executing judicial authority), EU: C:2021:876, para. 64] that a court's jurisdiction to hear a case under the relevant domestic rules is part of the requirement of a "court of law" within the meaning of Article 6(1) of that Convention (see, to that effect, ECtHR, Sokurenko and Strygun v. Ukraine, EC:ECHR:2006, at para. 64). Ukraine, EC:ECHR:2006:0720JUD002945804, §§ 26 to 29, and 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland, EC:ECHR:2020:1201JUD002637418, §§ 217 and 223).
100. In particular, a national supreme court that rules at first and last instance in a criminal case without there being an express legal basis conferring jurisdiction over all defendants cannot be considered a court based on the law within the meaning of Article 6(1) (see, to this effect, ECtHR, judgments of 22 June 2000, Coëme and Others v. Belgium, EC:ECHR:2020:1201JUD0026373718). Belgium, EC:ECHR:2000:0622JUD003249296, §§ 107-110, and 2 June 2005, Claes and Others v. Belgium, EC:ECHR:2005:0602JUD004682599, §§ 41-44).»
As is well known, the Spanish Supreme Court sentenced leading Catalan politicians and representatives of Catalan civil society in the first and only (!) instance — this alone is a violation of an essential fundamental and human right — to draconian prison sentences and a ban from holding office, without having been the competent court for such a trial under Spanish law. This is what the politically persecuted Catalans and their lawyers have repeatedly argued, without being heard by most of the political leaders of the European Union.
The confirmation by the European Court of Justice that the televised Madrid show trial of the prominent Catalans was not legal and violated a fundamental and human right guaranteed by the European Convention on Human Rights should lead to the European Court of Human Rights, based in Strasbourg, issuing a similar ruling against Spain in the near future.
The Spanish press will probably once again interpret the judgement of the European Court of Justice one-sidedly and incorrectly, as one has become accustomed to from the bad, anti-Catalan journalism of Spanish newspapers such as ABC or El País, which, as is well known, also tends to rub off clearly on the reporting in German newspapers such as the FAZ.
All in all, this judgement is another important legal victory for the Catalans who are striving for state sovereignty. It makes the extradition of the exiled Catalan president Carles Puigdemont and his comrades-in-arms to Spain seem even less likely than before.
Further passages from the judgement are quoted below in German translation (emphasis in bold not in the original):
«JUDGMENT OF THE COURT (Grand Chamber)
31 January 2023
(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Surrender procedures between Member States – Conditions for execution – Jurisdiction of the issuing judicial authority – Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union – Right of access to a tribunal previously established by law – Possibility of issuing a new European arrest warrant relating to the same person)
In Case C‑158/21,
REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 9 March 2021, received at the Court on 11 March 2021, in the criminal proceedings against
Lluís Puig Gordi,
Carles Puigdemont Casamajó,
Antoni Comín Oliveres,
Clara Ponsatí Obiols,
Meritxell Serret Aleu,
Marta Rovira Vergés,
Anna Gabriel Sabaté,
intervening parties:
Ministerio Fiscal,
Abogacía del Estado,
Partido político VOX
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, L. Bay Larsen (Rapporteur), Vice-President, C. Lycourgos, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, M. Ilešič, J.-C. Bonichot, N. Piçarra, I. Jarukaitis, A. Kumin, N. Jääskinen, N. Wahl, I. Ziemele and J. Passer, Judges,
Advocate General: J. Richard de la Tour,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure and further to the hearing on 5 April 2022,
after considering the observations submitted on behalf of:
– Mr Puig Gordi, by S. Bekaert, advocaat, and G. Boyé Tuset, abogado,
– Mr Puigdemont Casamajó, by G. Boyé Tuset, abogado,
– Mr Comín Oliveres, by G. Boyé Tuset, J. Costa Rosselló and I. Elbal, abogados,
– Ms Ponsatí Obiols, by G. Boyé Tuset and I. Elbal Sánchez, abogados,
– Ms Rovira Vergés, by A. Van den Eynde Adroer, abogado,
– Ms Gabriel Sabaté, by B. Salellas Vilar, abogado,
– the Ministerio Fiscal, by F.A. Cadena Serrano, C. Madrigal Martínez-Pereda, J. Moreno Verdejo and J.A. Zaragoza Aguado, fiscales,
– the Partido político VOX, by M. Castro Fuertes, abogada, and M.P. Hidalgo López, procuradora,
– the Spanish Government, by S. Centeno Huerta, A. Gavela Llopis and M.J. Ruiz Sánchez, acting as Agents,
– the Belgian Government, by M. Jacobs, C. Pochet and M. Van Regemorter, acting as Agents, and by F. Matthis and B. Renson, avocats,
– the Polish Government, by B. Majczyna, acting as Agent,
– the Romanian Government, by E. Gane and A. Wellman, acting as Agents,
– the European Commission, by J. Baquero Cruz and S. Grünheid, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 14 July 2022,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).
2 The request has been made in the context of criminal proceedings brought against Mr Lluís Puig Gordi, Mr Carles Puigdemont Casamajó, Mr Antoni Comín Oliveres, Ms Clara Ponsatí Obiols, Ms Meritxell Serret Aleu, Ms Marta Rovira Vergés and Ms Anna Gabriel Sabaté.
[...]»
«125. Therefore, given that the WGAD’s mandate stems from Resolutions 15/18, 20/16 and 33/30 of the United Nations Human Rights Council, which itself was created by Resolution 60/251 of the United Nations General Assembly of 15 March 2006, a report drawn up by the WGAD may be one of the factors that may be taken into account in the first step of that examination, however the executing judicial authority is not bound by the conclusions set out in that report.»
«
On those grounds, the Court (Grand Chamber) hereby rules:
1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009,
must be interpreted as meaning that an executing judicial authority does not have the power to refuse to execute a European arrest warrant on the basis of a ground for non-execution which arises not from Framework Decision 2002/584, as amended, but solely from the law of the executing Member State. However, that judicial authority may apply a national provision which provides that the execution of a European arrest warrant is to be refused where that execution would lead to an infringement of a fundamental right enshrined in EU law, provided that the scope of that provision does not go beyond the scope of Article 1(3) of Framework Decision 2002/584, as amended, as interpreted by the Court of Justice of the European Union.
2. Article 1(1) and (2) and Article 6(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,
must be interpreted as meaning that the executing judicial authority may not verify whether a European arrest warrant has been issued by a judicial authority which had jurisdiction for that purpose and refuse to execute that European arrest warrant where it considers that that is not the case.
3. Article 1(3) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that the executing judicial authority called upon to decide on the surrender of a person for whom a European arrest warrant has been issued may not refuse to execute that warrant on the ground that that person is at risk, following his or her surrender to the issuing Member State, of being tried by a court which lacks jurisdiction for that purpose unless,
– first, that judicial authority has objective, reliable, specific and properly updated information showing that there are systemic or generalised deficiencies in the operation of the judicial system of the issuing Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which the person concerned belongs, in the light of the requirement for a tribunal established by law, which mean that the individuals concerned are generally deprived, in that Member State, of an effective legal remedy enabling a review of the jurisdiction of the criminal court called upon to try them, and
– secondly, that judicial authority finds that, in the particular circumstances of the case in question, there are substantial grounds for believing that, taking into account, inter alia, the information that is provided by the person for whom that European arrest warrant has been issued and that relates to his or her personal situation, to the nature of the offence for which that person is prosecuted, to the factual context in which that European arrest warrant was issued or to any other relevant circumstance, the court which is likely to be called upon to hear the proceedings to which that person will be subject in the issuing Member State manifestly lacks jurisdiction for that purpose.
The fact that the person concerned was able, before the courts of the issuing Member State, to rely on his or her fundamental rights in order to challenge the jurisdiction of the issuing judicial authority and the European arrest warrant issued for him or her is of no decisive importance in that regard.
4. Article 1(3) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights,
must be interpreted as meaning that in a situation where a person for whom a European arrest warrant has been issued alleges that he or she is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, the existence of a report by the Working Group on Arbitrary Detention which does not directly relate to that person’s situation may not, in itself, be justification for the executing judicial authority to refuse to execute that European arrest warrant, but such a report may, however, be taken into account by that judicial authority, among other elements, in order to assess whether there are systemic or generalised deficiencies in the operation of the judicial system of that Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which that person belongs.
5. Article 15(2) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,
must be interpreted as precluding the executing judicial authority from refusing to execute a European arrest warrant on the ground that the person for whom that warrant has been issued is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, without having first requested that the issuing judicial authority provide supplementary information.
6. Framework Decision 2002/584, as amended by Framework Decision 2009/299,
must be interpreted as not precluding the issuing of several successive European arrest warrants against a requested person with a view to obtaining his or her surrender by a Member State after the execution of a first European arrest warrant concerning that person has been refused by that Member State, provided that the execution of a new European arrest warrant does not result in an infringement of Article 1(3) of Framework Decision 2002/584, as amended, and provided that the issuing of the latter European arrest warrant is proportionate.»
Source:
Presumably most European media will again adopt the one-sided reporting of the Spanish press unchecked. Those who are ignorant of Catalan but would still like to read the informed reports and commentaries published on the Catalan news portal VilaWeb are once again referred to the translation programme Softcatalà:
https://www.softcatala.org/traductor/
https://www.vilaweb.cat/noticies/exiliats-sentencia-tjue-llarena-directe/
https://www.vilaweb.cat/noticies/sentencia-tjue-llarena-puigdemont-analisi-josep-casulleras/
I wonder if the European Union, after years of shameful silence, finally realises that substantial violations of the European Convention on Human Rights have been committed in Spain by the Supreme Court and that the human rights of leading figures from Catalonia have been violated?
Europe sees it, Europe knows it, Europe tolerates it. How much longer, Europe, will you deliberately overlook the violation of human rights in Spain?
https://www.vilaweb.cat/noticies/puigdemont-sentencia-tjue-euroordres-mortes-boye/