Sibel Top: Waiver of immunity of Catalan MEPs reintroduces politics in EU extradition law

Sibel Top: Waiver of immunity of Catalan MEPs reintroduces politics in EU extradition law

Sibel Top

Sibel Top, a PhD fellow of the Flemish Research Foundation (FWO) at the Vrije Universiteit Brussel, considers whether EU extradition laws have passed the “Catalan test”.

On 8 March 2021, the European Parliament voted to lift the immunity of Catalan MEPs, Puigdemont, Comin and Ponsati. Although this long-lasting saga is far from being over as Puigdemont already announced his intention to bring the case before the CJEU on procedural grounds, this decision would theoretically enable Spanish authorities to resume the European arrest warrants issued for these Catalan leaders in exile.

Quite contrary to what happened so far in the case of Catalan exiles, the European arrest warrant was supposed to streamline extraditions among EU Member States through a number of changes to traditional extradition procedures, including their depoliticisation.

Depoliticisation of extraditions to ease automatisation

As outlined in a previous blog post, the depoliticisation of extraditions in the EU followed and was partly due to the Garcia Moreno case that took place between Spain and Belgium in the 1990s. The case concerned two Basque separatists who sought refuge in Belgium. The latter refused to extradite them back to Spain, arguing the offences for which they were requested were political.

Following this refusal, Spain successfully advocated for the abolition of political asylum in the EU for EU citizens, and a new Convention on extradition was adopted, the 1996 Convention on extradition between the Member States that formally and textually sought to abolish the political offence exception to extradition among EU Member States.

The Convention, however, only entered into force in 2019, and was forestalled by the 2002 Framework Decision on the European arrest warrant in achieving that objective, as the latter did not feature the political offence exception in its grounds for refusal.

In addition to abolishing the political offence exception, the Framework Decision on the European arrest warrant depoliticised extraditions by transferring the decision on extraditions from political to judicial authorities, conclusively evacuating all political components from extradition procedures among EU Member States.

The Catalan crisis: depoliticisation in tension

This political cleansing of extradition procedures, however, showed its fragility with the Catalan case. The fact that Spain issued, withdrew and reissued numerous warrants for the same people prompted several MEPs to question the abusive use of the European arrest warrant system by Spain, which was said to damage mutual trust and the European arrest warrant system as a whole.

In addition, Belgium and Germany – the only two Member States to come to a decision on the European arrest warrants issued for Catalan exiles – both managed to circumvent any assessment of the political charges of the case (sedition and rebellion) so far by persistently refusing the requests for surrender on procedural grounds.

In the German case, it was argued that the double criminality requirement could not be fulfilled for the offence of rebellion (although German authorities did accept it for the offence of embezzlement); in the Belgian case, the refusals in executing the warrants pertained to the absence of a national arrest warrant supposed to accompany the European one, and more recently to the competence of the Spanish Supreme Court in issuing European arrest warrants.

In contrast to the unease of EU Member States in refusing the surrenders, Switzerland, not bound by the European arrest warrant system, bluntly warned – following rumours of an international arrest warrant for Marta Rovira, a former Catalan MP in exile there – that they would not grant extradition for political crimes.

The vote of the European Parliament: the political component is back

The political dimension of the surrenders surrounding Catalan leaders took a new turn when the CJEU was presented with the case of Oriol Junqueras, a Catalan leader who had remained in Spain following the independence referendum. He was elected as MEP in the 2019 European elections, but was barred from leaving prison to take his oath of allegiance to the Spanish Constitution, a necessary requirement under Spanish law for him to get his accreditation.

Junqueras brought an action to the Spanish Supreme Court, claiming he had immunity under the Protocol on the privileges and immunities of the EU. The Supreme Court in turn deferred the matter to the CJEU through a reference for preliminary ruling, on which the latter ruled that immunity starts as soon as the election results are officially declared, and that should Spain want to prosecute Junqueras, it would need to introduce a request for a waiver of that immunity. Spain did that, not only for Junqueras, but also for Comin and Ponsati who were also MEPs-elect targeted by European arrest warrants.

The decision on whether or not to lift their immunity was incumbent upon the European Parliament that had to vote with a simple majority on the case. The Committee on Legal Affairs of the European Parliament was expected to adopt a recommendation on the matter prior to the plenary session of 8 March 2021, paying special attention to whether there was a clear case of ‘fumus persecutionis’, “i.e.“a well-founded suspicion that the legal proceedings have been instituted with the intention of causing political damage to the Member’.”

This whole situation thus undermined all previous efforts to depoliticise extradition as it entangled the political and judicial spheres to decide whether Spain would be allowed to proceed with the European arrest warrants it issued against Catalan MEPs. Not only that, the European Parliament ultimately adjudicated on whether or not Catalan MEPs were in fact victim of political persecution, an outcome to which the possibility to proceed with their surrenders was tied.

Following the vote of its Committee on Legal Affairs, the European parliament eventually sided with Spain on this explosive case by arguing – for all three MEPs: Puigdemont, Ponsati and Junqueras – that the criminal proceedings against Catalan exiles concerned opinions expressed or votes cast before their appointment as MEP and that therefore the Spanish prosecutions could not possibly be aimed at undermining their hypothetical future mandate.

Although this decision takes Catalan MEPs in exile one step closer to their surrender to Spain, the fate of Puigdemont and Comin are in the hands of Belgian judicial authorities who recently upheld their decision to refuse, once again, the extradition of Lluis Puig, another Catalan leader in exile there, on grounds that the Spanish Supreme Court was not competent to issue the warrant.

In order to avoid a similar outcome now that the path to the surrenders of Catalan MEPs is clear, Judge Llarena – from the Spanish Supreme Court – introduced a preliminary ruling procedure to the CJEU for it to assess whether Belgium is applying the warrants correctly.

The already existing and continuously mounting political tensions between Spain and Belgium on this case are surely reminiscent of the tensions that arose following the Garcia Moreno case back in the 1990s, when extraditions were still political decisions.

In this regard, the European arrest warrant system was not only supposed to expedite extradition procedures – this Catalan saga has now been going on for three and half years; it was also to evacuate all political elements of extraditions – both the decision-making and its repercussions. The depoliticisation of extraditions the European arrest warrant was supposed to ensure thus seems to have failed the Catalan test.

  • Sibel Top is a PhD fellow of the Flemish Research Foundation (FWO) at the Vrije Universiteit Brussel. Her research focuses on the legal relevance and actual application of the political offence exception in European extradition law. This article first appeared on EJIL:Talk!, the blog of the European Journal of International Law.
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