The Spanish public prosecutor on Thursday ordered the country's High Court that the Catalonian secessionist leaders be jailed. An arrest warrant be issued for ousted Catalan president Carles Puigdemont and eight members of his former government.
Investigative magistrate Carmen Lamela issued the ruling on Thursday at the request of prosecutors who are pursuing a criminal case stemming from the declaration of secession the Parliament of Catalonia made Friday. The eight are Oriol Junqueras (Deputy First Minister, economy), Jordi Turull (spokesman), Raul Romeva (foreign affairs), Josep Rull (territory), Meritxell Borrás (public administration), Carles Mundó (justice), Dolors Bassa (work & social affairs), Joaquin Form (interior).
Earlier, the prosecutor's office requested the jailing of Catalonian Vice-President Oriol Junqueras and seven other officials charged with rebellion, sedition and embezzlement of public funds, while the probe is ongoing, La Vanguardia reported. The prosecutor also asked the judge to issue a European arrest warrant for former leader Carles Puigdemont while also requesting that counselor Santi Vila, who resigned from government before Catalonia declared independence, be released on bail of €50,000.
The request comes hours after ousted Catalonian President Carles Puigdemont failed to appear before Spanish judges. He’s currently in Brussels, seeking "freedom and safety." Puigdemont’s Belgian lawyer Paul Bekaert said that he would “cooperate with Spanish and Belgian justice.”
On Friday, October 27 the prosecutor filed a complaint against the Catalonian government for crimes it considers “very serious.” The alleged crimes relate to Catalonia’s independence referendum in which the majority of voters opted to secede from Spain.
Yesterday, a statement from the “Legitimate Catalan Government” confirmed that former Catalan leader, Carles Puigdemont, would not, as expected, appear in court in Madrid today.
The Spain Report points out that Catalan public television, TV3, published extracts from a statement from the "legitimate government of Catalonia" in Brussels on Wednesday evening that denounced the accusations presented against Carles Puigdemont and 13 other former regional ministers and the Speaker of the Catalan Parliament, Carme Forcadell, and five former members of her Speaker's Committee. The statement said Mr. Puigdemont and a group of former regional ministers would be staying in Brussels to "denounce this political trial" abroad, implying they would not return to Madrid by 9 a.m. tomorrow morning, when they have been ordered to appear at the National High Court. The statement said the prosecutor's accusations—for rebellion, sedition and misuse of public funds—were a "political trial" and the potential sentences—rebellion carries a maximum term of 30 years in jail—"disproportionate". The statement says Puigdemont and the others are not staying in Brussels "to evade justice but rather to demand it". It suggests the group will attempt to answer the judge's questions from Brussels "using the mechanisms already foreseen in the European Union for these circumstances".
This morning, Spain’s El Pais newspaper asked what happens next now that Puigdemont failed to appear in court. According to El Pais, Puigdemont, as well as former members of the Catalan Cabinet Meritxell Borràs, Antoni Comín, Clara Ponsatí and Meritxell Serret, failed to appear.
So what happens next?
1) In the High Court, Judge Carmen Lamela has accepted the formal accusation of rebellion filed by the Spanish public prosecutor’s office against Puigdemont and 13 members of his former cabinet. The crime carries a possible sentence of 30 years in prison.
2) The former president is also being investigated by the Catalan High Court (TSJC) for disobedience, misusing public funds and making deliberately unlawful decisions as elected officials (known in Spanish as prevaricación).
A European Arrest Warrant?
1) Now that Puigdemont has failed to appear in the High Court, Judge Lamela could draw up a writ ordering him to be taken into custody.
2) Once this writ has been produced, Spanish judges can issue a European Arrest Warrant (EAW) – the European Union equivalent of the old extradition orders. Prosecutors must make a request for this arrest warrant to be issued.
3) This EAW would be handed over by the judge to the Spanish National Police, who will use the SIRENE office – part of the EU’s Schengen Information System – to transmit the warrant to Belgian police.
4) This mechanism entails the arrest of the individual named in the warrant. A Belgian judge would then be tasked with looking at the handover of that person to Spain. The EAW protocol has been in place in Spain since 2003 and was updated in 2014, partly to include the requirement that the initial request for the warrant comes from prosecutors (previously judges were able to draw up an EAW without involving prosecutors in the process). It was also updated to include the principle of proportionality, meaning that an EAW can only be issued when Spain believes the conditions for pre-trial custody exist in the case of the person named in the warrant.
EAWs are carried out between judges of different EU members states, and, as a point of difference with extradition orders, the governments of the relevant countries are not involved.
5) EAWs are regulated in Spanish legislation under Law 23 of 2014 covering the mutual recognition of penal resolutions in the EU. This rule imposes on Spain the obligation to comply with other EU legislation including a 2002 agreement on making the handover of detainees easier.
6. The procedure is fairly straightforward, on paper at least. The judicial system in the country notified usually agrees to the handover of the person named in the warrant in around 60 days.
There are, however, a number of legal avenues that can extend these time frames, according to judicial sources consulted by this paper.
1) This handover could take longer if the judge ordering the EAW has not exhausted all other possible means of questioning the suspect, including via video conference. However, in the case of crimes as serious of rebellion – as is the case with former Catalan premier Puigdemont – this excuse would carry little weight, according to judicial sources.
2) Another hurdle thwarting a rapid handover could be the fact that rebellion is not on the list of 32 crimes that are exempt, under European law, from “double classification.” In other words the crime of rebellion is on the books in both countries. Under Belgian law, rebellion has a slightly different definition from that of Spanish law, according to sources consulted. And even in Spain, the crime is not very well-defined. This could lead to Belgian judges to make an argument that they need to look closely at the subject in question and examine whether, under Belgian law, Puigdemont and fellow members of his government currently in Belgium are actually liable to prosecution. If a judge agrees to the handover of the detainees, those detainees could then appeal.
3) Although the simplified EAW system is based on “an elevated level of confidence” between EU member states, and on the fact that judicial resolutions in one country will be recognized by others, people named in these warrants can claim – and everything suggests Puigdemont will do this – that they are afraid their fundamental rights won’t be respected in Spain. Article 1.3 of the European legislation of 2002 opened the door to this possibility and has allowed Belgium to stop the handover of various ETA prisoners to Spain in the past.
With the Spanish Government continuing to escalate the confrontation with the former Catalonian leadership, we suspect that an arrest warrant is heading Carles Puigdemont’s way. Meanwhile, he chose to drink coffee in a Brussels café instead of appearing in a Madrid courtroom.