The general lawyer of the EU has agreed this Thursday with the magistrate Pablo Llarena in the case that affects the euroorder issued by the Supreme Court asking Belgium to hand over the former conseller Lluis Puig. A judicial authority cannot deny the execution of a European arrest warrant based “on the risk of violation of the right to a fair trial of the requested person”, not at least if the existence of “systemic or generalized deficiencies that affect to the judicial system of the issuing Member State”. That is, Belgium cannot continue to deny the delivery of the former Minister, because if there are no deficiencies of this nature, and it is not proven in the case of Spain, considered a State with full rights by the Union, “there is no basis for denying the enforcement on the allegation that the issuing court lacks jurisdiction to make such an order and to prosecute the person claimed.”
For all these reasons, in addition, Llarena could issue an arrest and surrender order again, since there are not and should not be limits and it is fully justified when an enforcement court has not respected community law, as would be the case in this case. This is the reasoning that emerges from the conclusions presented today by the French attorney general, Richard de la Tour. The conclusions are not binding and the final decision depends on the CJEU judges, who will rule in a few months. They can completely ignore this analysis, or they can follow it, something that happens in about 80% of the cases.
The case dates back to last year, when after the umpteenth refusal of the Belgian courts to hand over those claimed by the Spanish Justice, Judge Pablo Llarena chose to refer a battery of preliminary questions to Luxembourg. Belgian judges have refused surrender for all sorts of reasons since 2017, just as judges in Germany, Switzerland or even Italy more recently did for their own reasons. The case of Lluis Puig is, however, different from that of Carles Puigdemont, Toni Comín and Clara Ponsatí, since he was not on the electoral lists and has not become an MEP. The process of these three in the Brussels court is on hold until their situation is definitively resolved, that is whether they can be extradited or not in the last instance or if they enjoy parliamentary immunity, since the matter of the request to lift it is still ongoing.
In 2021, the magistrates denied the surrender and the Spanish Supreme Court asked the Court of Justice to clarify and define what the limitations of a European Arrest Warrant (ODE) are and under what conditions they can be denied. The Belgians rejected the delivery because they consider that the competent jurisdictional body to examine the accusations against Puig Gordi is not the Supreme Court, but a Catalan court. And not only that, but they consider that his delivery would endanger fundamental rights, such as the presumption of innocence. Llarena therefore asked if EU law grants the executing body the power to control the competence of the issuing body. The question is very deeply loaded. It is not a case without more. The Framework Decision that regulates the European orders does not give any type of control power to the country that must execute it, since the very basis of everything is the principle of mutual recognition of judicial decisions. And if Belgium arrogates that power, Llarena considers that the entire system would be undermined.
In his arguments, Llarena, who has received countless blows from the continental courts, accused the Belgian authorities of “profound ignorance of the Spanish jurisdictional structure”, since in their sentences they speak of the Supreme Court of Catalonia, for example, which does not exists. On the other hand, Llarena wants to close all the doors opened by the defense and that is why she also asks if a report from a working group “outside the United Nations system” constitutes, as the defense says, “a reliable, precise, objective element and duly updated to justify, in light of the CJEU jurisprudence, the denial of his delivery on the basis of a serious risk of violation of his fundamental rights”.
In the conclusions presented today, the French Advocate General proposes that the Court of Justice respond, firstly, that the Framework Decision precludes a judicial authority from refusing the execution of a European warrant on the basis of a reason for refusal of the implementation provided for in their national law, but not covered by this Framework Decision. According to the lawyer, although the Court of Justice has extended the cases in which it is appropriate to deny the execution of a European arrest warrant beyond the grounds for non-execution expressly mentioned in the Framework Decision, “it has always based its reasoning on provisions of the Framework Decision. Consequently, a ground for refusal of enforcement provided for in the national law of a Member State that is not based on a provision of that Decision cannot be admitted.”
A judge of any country can reject a delivery if “he has serious reasons to consider that it would have the effect of violating the fundamental rights of the person in question”, but in order to do so he must follow the jurisprudence of the CJEU, which “sets the conditions Accordingly, an executing judicial authority cannot rely on such a provision to compulsorily and automatically deny the execution of an EAW in the event that the violation of the fundamental rights of the individual is alleged. what it is about”, which is what Puig’s defense has done.
The second point of the lawyer’s reasoning is that, therefore, an executing judicial authority is nobody to control whether an issuing judicial authority is competent to issue a Euroorder. Belgium cannot tell Spain that the Supreme Court was not the right body and that a Catalan court should have dealt with it. “Authorizing such control would contravene the principle of procedural autonomy, according to which Member States can designate in their national law the competent judicial authority to issue arrest warrants, and the principle of mutual recognition, the cornerstone of judicial cooperation in criminal matters by virtue of which the execution of the ODE constitutes the rule, while the denial of the execution is conceived as an exception that must be the object of strict interpretation”, he affirms in a clear endorsement of Llarena’s thesis.
Finally, in his assessment today, the French expert also says that Belgium cannot deny the Supreme Court’s request either when it does not have elements that “allow it to demonstrate, by means of a global assessment based on objective, reliable, precise and duly updated data, the existence of a real risk of violation of the fundamental right to a fair trial before a judge previously established by law, which is guaranteed in article 47, second paragraph, of the Charter of Fundamental Rights of the European Union, due to systemic deficiencies or generalized in the functioning of the judicial system of the issuing Member State”.
Just yesterday the European Commission published its Third Report on the Rule of Law, considering that Spain complies perfectly with European standards. The Advocate General considers that where there are no such shortcomings,” the executing judicial authority cannot doubt that, through the legal remedies available in the issuing Member State, the person concerned will be able to obtain a declaration and, where appropriate, correct or sanction a possible violation of their fundamental right to a fair trial before a court previously established by law”, indicates the statement from the high community court. Those claimed have at their disposal recourse in the issuing Member State in order to control, up to the level of the Constitutional Court, the observance of that fundamental right, says the document.
Finally, and something that may be key if the CJEU supports him at the end of the year, when he publishes his sentence, the French lawyer’s conclusions reiterate that the Spanish Supreme Court can issue a new order against Puig addressed to the same Belgian judicial authority after that the latter has denied execution in contravention of Union Law, “after having examined whether the issuance of that new EAW is proportionate”. Imposing a limit on the number of European warrants that can be issued “would call into question the effectiveness of the judicial cooperation system and weaken efforts aimed at effectively sanctioning infractions within the area of freedom, security and justice,” he concludes.
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