The European Arrest Warrant against Puigdemont: A feeling of déjà vu?

On 2 November 2017, the Spanish State Prosecutor asked Carmen Lamela, a Spanish judge, to issue a European Arrest Warrant against Carles Puigdemont and four of his former ministers following the vote of secessionist Catalan MPs to declare independence. They face potential charges of sedition, rebellion and misuse of public funds. Carles Puigdemont, who arrived in Brussels a few days before the news of the warrant was made public, called in a Belgian lawyer to defend his case. The Spanish authorities may not be thrilled by his choice.

The Basque precedent

In 1993, Spain issued an extradition warrant against two Basque secessionists who fled to Belgium, Moreno Ramajo and Garcia Arrantz. They were accused of participating in an unlawful association and an illegal armed band. The Court of Appeal of Brussels issued an Advisory Opinion according to which, the warrant was founded on political crimes and therefore, the extradition request should not receive a favourable response. The Belgian Ministry of Justice nevertheless ruled in favour of the extradition. In the meantime, Moreno Ramajo and Garcia Arrantz lodged an asylum application in Belgium, which was received admissible for further consideration. The extradition procedure was put on hold until a final decision to reject their asylum applications was made in 1994 on the grounds that despite the fact that cases of abusive behaviours of Spanish authorities towards Basque secessionists existed, these were isolated cases. Therefore, the argument was that there was no reason to believe that the Spanish justice system would fail to provide them with a fair trial. Thus, the extradition request was pursued and accepted. Following this decision, the couple submitted a procedure of extreme urgency before the Belgian Council of State in order to stop their extradition. This was successful and their extradition did not proceed(E. Bribosia and A. Weyembergh, ‘Asile et extradition: vers un espace judiciaire européen?’ (1997)  at 73-77).

What happened after that?

The Spanish authorities, offended by the Belgian decision, questioned the relevance of the possibility for asylum in the European Union, a Union of democratic countries that respect the rule of law. Their argument queried the need to grant asylum for EU citizens in a system that endeavors to advance mutual assistance in criminal matters and the fight against terror.

This led to the adoption of two major legislative instruments. First, the Convention on Extradition between the Member States in 1996. This Convention removed the option to refuse extradition of a political offender to another EU Member States.

The adoption of this Convention was then followed by the Aznar Protocol, an Annex to the Treaty of Amsterdam. This Protocol made asylum in the EU almost impossible for EU citizens (some exceptions to this rule are nevertheless listed in it) by stipulating that “given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters”.

Why is all this interesting?

Although asylum in the EU for EU citizens has not been an option since 1996, the issue recently resurfaced when Theo Francken, the Belgian State Secretary for migration and asylum policy, mentioned the possibility. This is hardly a surprise since Mr. Francken is a member of the N-VA, the Flemish secessionist party. On top of this, Bart Maddens, a leading Belgian political scientist who is very close to the N-VA and to the Flemish nationalist movement, acted as an accredited observer on the day of the referendum. This is, again, very familiar, as in 1993, the Garcia-Moreno couple gathered large support amongst the Flemish community in Belgium.

Although Charles Michel, the Belgian Prime Minister, already clarified that an asylum application was not on the agenda and Mr. Puigdemont has already stated that he would not lodge such an application, this situation raises a strange feeling of déjà vu and might take Spain captive by its old demons. This feeling is only further strengthened by the latest news that the lawyer of Carles Puigdemont was also the lawyer of Moreno Ramajo and Garcia Arrantz. The words he used against the extradition of the Catalan leader are also familiar; he is now invoking risk of unfair trial should his client be sent back to Spain.

The Flemish nationalist party’s political agenda might, as it was the case with the Garcia-Moreno case, fuel tensions between Spain and Belgium. However, twenty years later, the legislative tools the Spanish government would have needed at the time of the Garcia-Moreno case, the ones which they pushed for, have since been adopted. Indeed, the Convention on Extradition between Member States as well as the European Arrest Warrant are strong, although not infallible, guarantees that the extradition of Mr. Puigdemont and his ministers will take place. Similarly, should Mr. Puigdemont and his ministers lodge an application, the Aznar Protocol would offer very little chance of this being duly considered. Given the high political issues at stake, Belgium will surely be under the spotlight in the upcoming weeks. Indeed, although many EU leaders have shared their concerns about the use of force by Spanish authorities to stop the vote, EU Member States have shown support to Spain in this independence process. In this context, a Belgian decision not to extradite Mr. Puidgemont and his ministers might create a political tsunami.