EU Court: arrest warrants may be denied with proof of risk of rights violation

The Court of Justice of the European Union has given an official response to preliminary rulings from Spanish Supreme Court judge Pablo Llarena regarding the extradition request of former Catalan minister Lluís Puig, wanted in Spain for his role in the 2017 independence push.

European magistrates have ruled that Belgium cannot "in principle" question the authority of the Spanish court sending the arrest warrant request, as it argued in its reasoning to reject the extradition request for Puig.

"An executing judicial authority does not have the power to refuse to execute a European arrest warrant (EAW) based on a ground for non-execution which arises solely from the law of the executing Member State," reads the press release explaining the ruling.

"A decision refusing to execute an EAW, taken following an appropriate assessment, must be of an exceptional nature."

Judges said that for a country to reject an arrest warrant based on the grounds of a risk to fundamental rights, proof is needed that the person's fundamental rights are in danger. 

In its nuanced ruling based on seven specific questions sent to it from Spain's Supreme Court, Luxembourg endorsed rejecting an arrest warrant request with "well-founded reasons" such as the violation of rights, "deficiencies" in the judicial system, or in the treatment of the "group" to which the person facing an extradition request belongs.

Belgium could deny extradition requests if it proves judicial deficiencies in Spain are affecting group to which Lluís Puig belongs

CJEU would greenlight the denial of an extradition if two conditions are complied: on the one hand, if there is a real risk of infringement of the fundamental right to a fair trial, "on account of systemic or generalized 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."

Also, if "there are substantial grounds for believing that that person will run such a risk in the event of being surrendered to that Member State."

That is, if Belgium proved that these two conditions are met, rejecting Lluís Puig's extradition on the grounds that the Spanish court had no authority would be acceptable for the Luxembourg court, meaning that more evidence is needed from Belgium in order to justify their rejection of Lluís Puig's extradition, since no mention to judicial deficiencies affecting a specific group of people, such as for instance the independence leaders, was explicitly mentioned.

Spanish Supreme Court judge Pablo Llarena had queried in which exact circumstances an EU member state can deny rejecting an arrest warrant from another member state. The result sets precedents for the extradition cases open against other exiled independence leaders, including former Catalan president Carles Puigdemont. 

A refusal to execute an arrest warrant based on the perceived lack of jurisdiction of the court called upon to try the requested person is permissible only if the executing judicial authority concludes, first, that there are such deficiencies in the issuing member state and, secondly, that that court clearly lacks jurisdiction.

Decision comes after EU advocate general non-binding opinion in July

Last July, the EU advocate general said in a preliminary ruling that European arrest warrants could not be denied unless “systemic deficiencies” in the country's judicial system requesting the extradition could be demonstrated. 

In order to reject the extradition request, Belgium should demonstrate objective, trustworthy, and recent data, the advocate said.

He also added that Lluís Puig also had further "avenues of appeal" within the Spanish justice system, all the way up to the Constitutional Court, which has to take his fundamental rights into account.

New arrest warrants legal as long as they are 'proportionate'

One of the possibilities is that Spain's Supreme Court will file new arrest warrants, which is legally possible as long as its proportionate.

The EU court said on Tuesday that new arrest warrants can be issued even after the first has been rejected, but "the execution of a new EAW must not result in an infringement of the fundamental rights of that person and the issuing of the new EAW must be proportionate."

Since the previous arrest warrants were issued, the crime of sedition has been removed from the penal code, one of the crimes for which the independence leaders were sought. Therefore a new arrest warrant with new terms should probably have to be filed not only for Puig, but also for the rest of exiles in Belgium, who are MEPs, something that has left their cases still unconcluded.

However, Puigdemont argued on January 20 that the Supreme Court magistrates do not have the authority to try him due to his parliamentary immunity as a Member of the European Parliament.

The politician's lawyer claims Spain's judiciary would need to first ask for formal permission from the European Parliament before issuing such an arrest warrant – in March 2021, the EU chamber already allowed Spanish authorities to proceed with their extradition request by lifting Puigdemont's immunity, but the MEPs vote to enable it is now pending the European Court of Justice's go-ahead after Puigdemont appealed his colleagues' decision.

Puigdemont also waiting on immunity decision

While the request for clarification regarding Puig's case will set a precedent for the other exiles' cases, Belgium's public prosecutor has stated that in the case of Carles Puigdemont, Toni Comín, and Clara Ponsatí, all former government members who left Spain in 2017 and are currently MEPs, their extradition procedures will continue on hold regardless, because their immunity status has yet to be fully clarified. 

After Puigdemont, Comín, and Ponsatí had their immunity as Members of the European Parliament lifted in March 2021, their legal team appealed the decision made by a majority of the members of parliament before the EU court. In June 2021, they recovered their parliamentary privileges before then losing them again in July 2021 in a provisional decision. However, in May 2022, the Court of Justice of the European Union provisionally restored the parliamentary immunity of the pro-independence MEPs.

While Puig's CJEU decision could quickly impact the former minister, Puigdemont, Ponsatí, and Comín will have more time as Pablo Llarena is not expected to submit any new arrest warrants until the immunity decision is taken, foreseen for March.

In parallel, public prosecutors at Spain's Supreme Court filed fresh charges of aggravated public disorder and misuse of public funds against Puigdemont, Comín and Ponsatí.

This was in response to Supreme Court judge Pablo Llarena's decision to drop charges of sedition against the three members of the Catalan cabinet at the time of the 2017 independence referendum. The move came on the day the reformation of the penal code came into force on January 12, removing the crime of sedition and replacing it with aggravated public disorder.

If new arrest warrants are filed, crimes could either be the same ones as the first warrant or be based on the current penal code.