Explosive case, cautious ruling: The CJEU prudently favours cooperation in the Puig case

On 31 January 2023, the CJEU issued its much-awaited ruling on the Puig case. The case primarily concerned the surrender of Catalan exile Lluís Puig Gordi, former Catalan minister of Culture in Belgium since October 2017, but bore serious implications for other Catalan exiles targeted by international and European Arrest Warrant (EAW). In August 2020, the Brussels Court of first instance determined there would be a risk of human rights violation should Puig be sent back to Spain and refused the surrender. This was confirmed by the indictment chamber in January 2021. In turn, the Spanish Supreme Court introduced a preliminary ruling request to the CJEU challenging the Belgian refusal. In its 31 January decision, the CJEU eventually sided with the Spanish Supreme Court and ruled that cooperation should prevail. It nevertheless left the door open for national courts to refuse to execute future EAWs in the Catalan case, as these courts have consistently done so far.

1. The long saga of the failed extradition requests for Catalan exiles in short

Puig arrived in Belgium on 29 October 2017 together with six other Catalan politicians in self-imposed exile following the illegal independence referendum organised in Catalonia on 1 October 2017. In the aftermath of the referendum, the Spanish Supreme Court issued three waves of EAWs against Catalan exiles to get them back, but to no avail.

The first wave of warrants against Catalan exiles in Belgium, issued on 30 October 2017 in the immediate aftermath of the referendum and self-imposed exile of Catalan leaders, was withdrawn due to the apparent willingness of Catalan exiles to voluntarily go back to Spain. Some contend, however, that the Spanish Supreme Court feared that the Belgian Court would oppose the surrender for some of the charges invoking the dual criminality principle, which would have prevented the Spanish Court to try Catalan exiles on those charges.

The second wave of EAWs against Catalan exiles, issued on 23 March 2018, followed the finalisation of preparation of the trial in Spain. The Belgian Court refused the surrenders on the ground that the EAWs it received were not accompanied by domestic arrest warrants. The Schleswig-Holstein Higher Regional Court who dealt with the EAW for Carles Puigdemont who had been arrested in Germany in the meantime, accepted the surrender, but solely for the charge of misappropriation of public funds; not the other charge of rebellion. It indeed invoked the fact that the dual criminality requirement could not be fulfilled for the latter offence, and refused the surrender for that charge. Commentators argued in this respect that the German Court went above and beyond what was actually required by EU law in its assessment of the dual criminality check to refuse the surrender of Puigdemont on the charge of rebellion, which could be construed as an unwillingness of the German side to surrender Puigdemont on the political charge of the case. As for Swiss authorities, who also received international extradition requests for Catalan exiles who had fled there in the meantime, they immediately invoked the possibility of refusing the extraditions motivated by political purposes. In light of all this, the Spanish Supreme Court withdrew all warrants on 19 July 2018.

A last wave of EAWs against Catalan exiles was issued 14 October 2019. In the meantime, however, the European elections of May 2019 had taken place, and Carles Puigdemont, Antoni Comín and Clara Ponsatí were elected Members of the European Parliament, which granted them immunity from prosecution. This is currently being challenged in a separate procedure at the EU General Court. The three were stripped of their immunity by Spain following a request made by the Spanish Supreme Court to waive the immunity of the Catalan MEPs after their election in May 2019. Since then, they have tried to regain it by seeking the annulment of the decision waiving their immunity at the General Court; and by requesting on two occasions the General Court to introduce interim measures until it comes to a decision on the annulment. The latter decision is due in March 2023. Puig, who did not benefit from a parliamentarian immunity, could still be surrendered. However, on 7 August 2020, the Brussels Court of first instance refused the extradition, arguing that Puig should be tried by a Catalan Court, and not the Spanish Supreme Court and that, as a result, Puig’s right to a fair trial, and more specifically his presumption of innocence, would be jeopardised should he be surrendered to Spain. This decision was confirmed by the indictment chamber in January 2021. Following the Belgian decision, the Spanish Supreme Court introduced a preliminary ruling procedure before the Court of Justice of the EU.

The Catalan saga has now been going on for over 5 years, and the repeated failures of the Spanish Supreme Court to get Catalan exiles back raise questions over the reluctance of its European partners to surrender these exiles.

2. Between a rock and a hard place: cooperation vs human rights obstacles to surrenders

In its preliminary ruling request, the Spanish Supreme Court essentially inquired whether the Belgian Court could refuse the execution of EAWs based on grounds for refusal that were not foreseen in the Framework Decision on the EAW of 13 June 2002. More specifically, it questioned whether Belgium could invoke the fact that the Spanish Court did not have jurisdiction to issue the EAW in this case as a basis to refuse the surrender. The Spanish Court also asked about the conditions under which the executing authority could refuse a surrender on the ground of the alleged infringement of the defendant’s fundamental rights, and whether this decision could be based on a report of the UN Working Group on Arbitrary Detention.

On 14 July 2022, the Advocate General Richard De La Tour issued his unambivalent opinion on the case. He strongly favoured cooperation, recognizing that the EAW should not be undermined by too many exceptions and describing the principle of mutual recognition as “the bedrock of judicial cooperation in criminal matters”.

On 31 January, the CJEU issued its ruling on the matter, where it aligned with the opinion of the Advocate General on the need to cooperate, although in a more cautious fashion. While it recalled the importance of mutual trust that underpins the EAW scheme, and the need to apply the EAW in a unified manner, it also underlined the necessity to respect fundamental rights in the application of the EAW. More specifically, the Court noted that, in principle, no additional grounds for refusal can be added by national courts. As a result, national courts do not hold a right to assess the competence of the issuing judicial authority to issue a EAW. However, the Court also stated that EU Member States can, in exceptional circumstances, refuse execution of an EAW to ensure respect for the requested person’s fundamental rights. Such a refusal must be done in strict compliance with the Court’s guidelines established in the Aranyosi and Căldăraru case – and later confirmed in further rulings, including the Openbaar Ministerie case focusing especially on the issue of right to a fair trial before an independent and impartial tribunal previously established by law. In the Puig ruling, the Court recounted its two-step approach developed in previous rulings to determine whether the requested person was at a real risk of human rights violations. The first step consists of assessing whether there is “objective, reliable, specific and properly updated information to demonstrate that there is a real risk of infringement, in the issuing Member State, of the fundamental right to a fair trial (…) on account of systemic or generalised deficiencies in that Member State or deficiencies affecting an objectively identifiable group of persons to which the person concerned belongs” (§102, case C‑158/21). In the case at hand, the Court noted that the executing judicial authority must determine if the Spanish judicial system offers the possibility of an effective legal remedy on the issue of the competence of the Spanish Supreme Court to try the defendants. This remedy would consist of a review, before another court, of the competence of the criminal chamber of the Spanish Supreme Court competence to try Puig and the other defendants (§103, case C‑158/21). The second step requires determining the extent to which the generalised or systemic deficiencies observed in the first step would “specifically and precisely” affect the defendant in the event of a surrender (§106, case C‑158/21), and whether the Court set to try the defendants manifestly lacks jurisdiction to do so (§107, case C‑158/21).

The Spanish Supreme Court had also raised the question of whether a report of the UN Working Group on Arbitrary Detention could constitute sufficient evidence of the lack of competence of the Court issuing the EAW to try the defendants. To this, the CJEU replied that if the report  does not relate to the specific situation of the requested person, it cannot, in itself, constitute sufficient evidence to refuse the execution of a EAW. This type of report can however be used in conjunction with other elements to support the case of systemic or generalised deficiencies in the functioning of the judicial system in a Member State. Other supporting evidence of these efficiencies can include  “judgments of international courts (…), judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations” (§121-126, case C‑158/21).

With this ruling, the Court essentially performed a balancing act slightly softening its traditionally strong pro-cooperation approach in this particularly politically volatile case. Although the CJEU made no reference to the decisions made by other national courts on the case of Catalan exiles (as it should be), one cannot help but wonder whether general reluctance of national courts to surrender Catalan exiles to Spain motivated a more cautious approach on this case (some argue that it did). Indeed, overall, the ruling favoured cooperation, but did so very prudently. Although the Court stated that refusals to cooperate should be exceptional and carefully justified (in line with the abovementioned two-step approach), it still left the door open for the Belgian Court to refuse future EAWs it will most probably receive from the Spanish Supreme Court by following the Court’s guidelines. It also noticeably avoided the question of deciding for itself whether the claimed systemic deficiencies were in fact observable in the case at hand; and left that thorny question to be resolved by national courts in future EAWs.

Following this decision, both camps hailed victory. The independentists noted how this ruling allowed executing authorities to refuse Spanish EAWs on human rights grounds provided that they were better justified; while Spanish commentators argued the CJEU’s decision would boost the Spanish efforts to get Catalan exiles back. This case is therefore, once again, to be continued through consideration of future EAWs the Spanish Supreme Court will likely issue for Puig – and for other Catalan exiles once the question of the parliamentary immunity is resolved.