The Waiver of Immunity of Catalan MEPs: Reintroducing Politics in EU Extradition Law

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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.

  1. Depoliticisation of extraditions to ease automatisation

As outlined in a previous blogpost, 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.

  1. 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 rumors of an international arrest warrant for Marta Rovira, a former Catalan MP in exile there – that they would not grant extradition for political crimes.

  1. 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 seised 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 vote casted 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 fasten 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.

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Nico Krisch says

March 11, 2021

The depoliticisation of extradition depends on mutual trust among member states, but this mutual trust is shattered if the authorities of one member state do not follow the rule of law or international human rights standards. This has been the case for Poland, and it is the case for Spain - not only many human rights groups, but even the UN Working Group on Arbitrary Detention has found the prosecution of Catalan activists and politicians to violate international human rights. Under such circumstances it would be entirely unjustified for courts not to examine the risk of political prosecutions. And it is equally unjustifiable for the European Parliament to lift the immunity of members who face political trials, as is the case of the Catalan MEPs.

Sibel Top says

March 11, 2021

Dear Nico, thank you for engaging with my post. I agree with you, the Catalan case indeed shows that completely depoliticising extraditions might not sustainable anymore, even in the EU context.

Asier Garrido-Muñoz says

March 11, 2021

Dear Sibel,

Thank you for your post. Isn’t what I understand is your main point (that the waiver of immunity of Catalan MEPs is reintroducing politics in EU extradition law) based on an impossible assumption: that politics can be left aside the prosecution of the Catalan leaders by the Spanish Supreme Court? In the alternative, aren’t you putting the ‘politization blame’ only on one of the sides to this sad story?

Everything around these cases has political connotations from the very moment those holding a regional government decide to hold an illegal independence referendum (and actually declare independence). And this applies not only to both the EP and the requesting side (Spain), but also to the denying side (Belgium), even when each party bases its arguments on legal grounds.

Which side is right in technical terms, this is something the ECJ will hopefully clarify. But whichever position you take, you will be blamed by the other side in political terms. Precisely the example you cite in support of your ‘de-politization’ case – that of Basque ‘separatists’- proves your point: at a certain moment a political decision was made not to enable members of the terrorist band ETA to find refuge in Belgium under the argument that they would face political persecution in Spain. And this, in turn, paved the way to the EAW.

Let me underscore what I did not say: that the prosecution by Spain of alleged criminal offences committed by Catalan leaders against a constitutional order equals to persecution on political grounds. Spain is not the only EU member state having such crimes enshrined in its criminal code, nor is it the only EU member state whose highest court has prohibited the celebration of a regional referendum à-la-Catalonia.

But once you request the extradition of such individuals and another EU member state rejects them on so-called 'technical grounds’ (including a decision made by a Belgian court regarding which Spanish court is competent to prosecute!), it is quite peculiar to blame the EP for having ‘undermined all previous efforts to depoliticise extradition’ (as you say) by denying the parliamentary immunity of Mr. Puigdemont et al. Which side (Spain or Belgium) is to be blamed for having politicised the system, I am sure we will never reach agreement on this point. But I do not think the EP deserves your criticism.

Clive Walker says

March 12, 2021

This is an excellent paper, Sibel. It points to a theme which can be seen in various strands of law and policy related to extradition. Thus, the disenchantment with mutual recognition and trust is growing and a far cry to the shock of 9/11 which opened a doorway to the enactment EWA. The changing times are reflected also in arrangements post-Brexit. While Brexit was never my desired objective, may I report that the position in negotiations of the UK governement was that the EWA was not the gift from heaven which the EU and many EU lawyers assume it to be but is too often an oppressive and disproportionate instrument which is not desired for the future. So, what might be viewed as less effective arrangements (including by some UK police officers) are seen as fairer arrangements by some UK politicians. The UK has also trimmed its bilateral arrangements with the US and asserted human rights considerations to an unforeseen extent (as in Assange).

The same trends are now seen regarding the Catalans, where the host states readily adopt excuses not to render the fugitives back to Spain.

Only the European Parliament stands out on the other side of the debate. Again, I do not say that I support or oppose the Catalan independence movements, but I do say that the criticism of the arguments used by the European Parliament and its 'Committee on Legal Affairs' are entirely justifiable on the grounds of the quality of its analysis. Indeed, you will be hard pressed to find any 'legal arguments' being put forward so far.

The question for Sibil (and the rest of us) is this - if the experiment with the depoliticisation of extradition is now failing, which it is at least to some extent, what do we put in its place? Simply reassert a stronger human rights exception? Or should we have a broader 'rule of law' exception (including the furtherance of democracy and the protection of minorities)? After all, the rule of law, which is now so beloved of the EU when it comes to Hungary and Poland, might be made to work as an independent principle in other ways.

Sibel Top says

March 12, 2021

Dear Asier,

thank you so much for your comment. I agree with you that this case was political from the very beginning, and my intention was thus to show that the EAW system is not equipped to deal with political situations (which happened today in Spain, an overall ‘good student’ of the EU, but might also very well happen elsewhere in the EU where the respect of EU standards are not at the level they should be) and that it was therefore unreasonable from the very beginning to think that the EU could afford having a purely judicial approach to extradition, almost as if it was (I am exaggerating here to illustrate my point:) a mere formality.

The fact that the question of whether EAWs could be applied to Catalan MEPs was eventually exported at the EP level, the political heart of the EU, was the last stop of an already very political journey. This was visible at every stage of the process: from the organisation of the referendum and the Declaration of Independence that triggered the whole case, but also in the Spanish, as well as Belgian, German and Swiss reactions, all the way to the fact that the EP eventually got involved in that decision.

I was thus not trying to make any judgement on the decision of the EP, I am sorry if that was the message that got across. I was observing that attempting to completely depoliticise extraditions was wishful thinking in the first place. I hope that this explanation brings a bit of clarity to my post.

Thank you again for engaging with it!

Sibel Top says

March 12, 2021

Dear Clive,

Thank you so much for such a rich and insightful input. I really enjoyed reading it. The question you raise at the end (‘what do we put in its place?’) is one around which my whole research revolves. I don’t have an answer to that (yet), but my initial thoughts - although painfully pragmatic - indeed lean towards strengthening human rights and rule of law safeguards, as this would be the ‘easiest’ way to go for now. The EAW has a discrimination clause in its Preamble, but the fact it is only in the Preamble is very disappointing. The first thing to do would thus be to turn that provision into a proper article. The only problem is that refusing a surrender using the discrimination clause is not only very difficult, it would also create such a diplomatic and political backlash that, in the end, its effect, even if turned into an article, would be merely aspirational in my opinion (although we do see a new trend of surrenders being refused on human rights grounds... So maybe there is something to dig there).

A bold move would be to reintroduce the political offence exception clause (this might be my occupational bias talking) because it is more protective than the discrimination clause in the sense that for the latter, the executing judicial authority needs to bring concrete evidence of persistent and targeted persecution, which puts a very heavy burden on them; whereas with the political offence exception, invoking it suffices (although the political price to pay for that one is also very high). I don’t think this would ever happen, of course, because it would be a formal acknowledgment that the mutual trust principle failed. And even in that case, we can’t lose sight of the fact that the discrimination clause protects a wider group of people than the political offence exception does.

Alternatively, we could have, like in certain Council of Europe conventions on terrorism, a denunciation clause that could potentially suspend the application of the EAW when a country is accused of persistently violating EU values, but I don’t see that happening either. A case in point is that the Protocol abolishing the right to asylum for EU citizens in the EU has a similar provision with regard to countries for which the procedure foreseen in article 7(1) TEU has been initiated, but the Protocol continues to apply Poland and Hungary. But then, unexpected changes also happen. A few years ago, I would not have put my money on the EU adopting a framework tying parts of its budget to the respect of the rule of law by EU member states for example (or on Brexit, for that matter). I would have also argued this was an acknowledgment of the fact the mutual trust principle failed, which it is to some extent.

It is encouraging to see that the UK is strengthening its human rights framework in its extradition arrangements (I was told no later than yesterday that there were considerations of including a political offence exception clause in the future relations on extradition with the EU), but it is alarming to note that this could not have happened without Brexit…