Key EU court decision affecting Puigdemont's extradition case to be revealed on Tuesday

The Court of Justice of the European Union (CJEU) will open a new judicial chapter in former Catalan president Carles Puigdemont and other former ministers' extradition cases on Tuesday. 

Judges are set to give their opinion concerning the arrest warrant of former culture minister Lluís Puig after Spain's Supreme Court judge Pablo Llarena asked for a reference for a preliminary ruling. Their response will set a precedent for the other leaders in Belgium, including Carles Puigdemont, Toni Comín, and Clara Ponsatí.  

The high-profile Spanish judge overseeing the Catalan leaders' judicial case asked Luxembourg magistrates if Belgium's decision to reject extraditing Puig in January 2021 was lawful.

Belgian courts argued that the politician could see his fundamental rights violated in Spain and cited the UN Working Group on Arbitrary Detention reports calling for the release of the leaders who did not leave the country and ended up in jail.

The Supreme court judge asked the EU court whether Belgium can assess the risk of fundamental rights being violated in another EU member state and, if so, whether the Working Group's papers are a valid argument.

Pablo Llarena also asked Luxembourg about "the elements in EU law so that a member state can resolve that in another member state a risk of fundamental rights violation exists." 

He also asked whether Belgium can have a say on which Spanish court has to try the 2017 independence push leaders, as Brussels said that Spain's Supreme Court should not be in charge of handling Lluís Puig's case.

Advocate general sides with Spain

The court will decide months after the advocate general of the European Court of Justice, Jean Richard de la Tour, sided with Spain in its attempts to extradite the former Catalan minister, Lluís Puig.

On July 14, 2022, Richard de la Tour said that European arrest warrants could not be denied unless “systemic deficiencies” in the country's judicial system requesting the extradition could be demonstrated. 

It cannot be done "if there is no data that allows proving, based on objective, trustworthy, precise, and up-to-date figures, that there is a real risk of infringement of the fundamental right to an unbiased process because of systemic deficiencies in the judicial system of the member state issuing the arrest warrant."

Although the advocate general's opinion is non-binding, magistrates tend to follow his recommendations.

The ECJ advocate general also favored Llarena's position on whether Spain's Supreme Court was competent to charge the pro-independence figures. For the EU legal expert, this cannot be questioned.

The European Commission also sided with Spain on April 5, 2022.

New arrest warrants

One of the possibilities is that Spain's Supreme Court will file new arrest warrants, which is legally possible, as stated by the advocate general.

While this opinion was given on July 14, the Spanish congress has since then changed the penal code and removed the crime of sedition, one of the crimes for which former Catalan president Carles Puigdemont was sought, therefore a new arrest warrant should probably have to be filed.

However, Puigdemont argued on January 20 that the Supreme Court magistrates do not have the authority to try him.

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 been fully clarified. 

After Puigdemont, Comín, and Ponsatí had their immunity as Members of the European Parliament lifted in March 2021, their legal team appealed against 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.