Nth judicial affront of Belgium to Spain

Nth judicial affront of Belgium to Spain August 17, 2020 Jose Antonio Yturriaga Ambassador of Spain, professor of Diplomatic Law at the UCM. Carles Puigdemont On August 7th the order of the Chamber of the Council of the Court of First Instance of Brussels - Flemish section - by which it has denied the delivery to the Spanish Courts of the former Minister of Culture of the Generalitat, Lluis Puig, claimed by a European Surrender and Detention Order – Euro-order - of the investigating judge of the Supreme Court, Pablo Llarena, for the crimes of sedition and embezzlement. The decision has been taken behind closed doors and has not been made public, so information on it must be sought in the leaks made to the Belgian press. The Belgian Prosecutor's Office has appealed against this decision to the Chamber of Accusations, an equally opaque body, which does not usually give reasons for its decisions or make them public. Against this eventual decision there will be an appeal to the Court of Appeal. Animosity of the Belgian authorities towards Spain This is one more example of the traditional animosity towards Spain of the Belgian authorities, especially the judicial ones, but which extends to all the powers of the State. Thus, the then Prime Minister, Charles Michel -current President of the European Councilcriticized the Spanish Government for its action on the occasion of the illegal referendum of October 1, 2017. His Deputy Prime Minister, Jan Jambon, put the Spanish justice system in serious doubt and expressed his willingness to grant the status of political refugee to the fugitive ex-President of the Generalitat, Carles Puigdemont, and to the Councilors of his Government fled from the Spanish justice and refugees in Belgium. The President of the Flanders Parliament, Jan Peuman, has censured the Spanish democracy and maintained that Spain should not be a member of the EU. On the occasion of the presentation of a Euro-order against Puigdemont, the King's Prosecutor, Jean-Marc Meilleur, stated that he would carefully examine the petition to prevent a violation of his fundamental rights from taking place, questioned the respect by Spain of human rights and demanded guarantees that they would be subject to a fair trial and would not be subject to episodes of violence. The history of the lack of cooperation between the Belgian and Spanish courts goes back a long way, as many of its members consider that Spain is not under the rule of law and that its Courts do not offer sufficient guarantees of independence and credibility. Belgian courts have repeatedly rejected the extradition of ETA terrorists on the pretext that they would not receive a fair trial. The most recent case has been the refusal to hand over the ETA activist Natividad Jáuregui a) "Pepona", accused of the murder of Colonel Romeo. A court in Ghent affirmed that the handing over of a member of the “Basque armed resistance movement” would be an attack on her fundamental rights, since she would be subjected to a regime of deprivation of liberty in degrading conditions, accompanied by torture and hardly allowing contacts with the outside world, including her lawyers and family. Such falsehoods were endorsed by the Court of Appeal. Romeo's children denounced Belgium before the European Court of Human Rights, who agreed with them and sentenced this country to pay compensation for not having fulfilled its obligation to cooperate with Spain in accordance with the OEDE regime, although –despite this recognition- it did not oblige the Belgian authorities to hand over the ETA woman to the Spanish courts for trial. The situation has become Kafkaesque when Belgium accepted, together with the other EU partners, including Spain, the OEDE (Euro-order) system, established to facilitate and accelerate extraditions based on the recognition that all Member States have approved and trustworthy courts. If Belgium believed that Spain did not have such courts, it should not have accepted the OEDE regime in relation to it. What it cannot do is accept certain obligations and then fail to comply with them on the grounds that the Spanish courts do not guarantee fair trials for the criminals handed over. The system is based on mutual trust and the presumption that the courts of the different states act in accordance with the law and pronounce fair sentences. Euro-orders must be processed expeditiously if they meet the formal requirements and the court to which delivery is requested cannot enter to examine the merits of the matter. Only exceptionally can you refuse delivery in the event of a possible violation of the fundamental rights of the requested person. As stated by the ECHR in the Jáuregui case, the revocation of the presumption of compliance with human rights and the refusal to surrender the requested person due to the risk that said rights could be violated had to be justified by circumstantial elements and factual bases sufficient to prove in a reliable way the danger of a manifest violation of such rights, and the Belgian courts had not proven the existence of a real and individualized danger of violation of Jáuregui's fundamental rights. Puigdemont and his four escaped counselors in Belgium had the audacity to present in the Belgian courts a criminal complaint and a claim for compensation for non-pecuniary damage against the TS instructor, Pablo Llarena, and the Kingdom of Spain, which were rejected by the Belgian jurisdiction by accepting the immunity from jurisdiction of the Spanish State for its acts “iure imperii”, in accordance with the general principle of Law “par inter pares non habet imperium”. Following Belgium's repeated attacks on Spanish justice, around fifty retired Ambassadors wrote a letter to the Belgian Ambassador in Madrid, Marc Calcoem, on May 21, 2018, expressing their concern and outrage at the high degree of distrust of the Belgian institutions towards the Spanish justice system, and were unhappy with the fact that Spain - Belgium's partner in the EU and an ally in NATO - was a party to all Human Rights Conventions, and accepted and complied with the OEDE regime was not recognized as such. On December 24, 2018 they sent him a new letter in which they expressed their hope that - in the face of the explicit attempt by the Catalan authorities to unilaterally violate the constitutional and statutory order, break the territorial integrity of Spain and obtain the independence of Catalonia, Belgium would lend Spain the same support that Spain gave it during World War I, through its Ambassador in Brussels, the Marquis de Villalobar. The Belgian Ambassador has not deigned to respond to the letters of his colleagues. Non-compliance by Belgium with the Euro-order regime To refuse to enforce the Euro-orders requested by Spain, Belgian courts have sometimes relied on futile formal arguments, such as when they rejected the surrender of Puigdemont and his accomplices because there was no valid underlying national order corresponding to the content of the Euro-order, which was contrary to the truth since the order had been issued by the examining magistrate of the National Court, Carmen Lamela, and later reiterated by the examining magistrate of the Supreme Court, Pablo Llarena. Other times they have improperly entered to examine the merits of the matter and amended the plan of the Spanish judge, as in the Valtoncyk case. Rapper Josep Miquel Arenas was sentenced in 2017 by the National Court to three and a half years in prison for the crimes of terrorism and insults to the Crown. The Belgian Court considered that Valtoncyk's statements were an exercise of freedom of expression and that the trial and conviction had been unfair, so it denied his delivery to the Spanish courts. The Puig case is a book model of the rude interference of the Brussels Council Chamber in the Spanish jurisdiction. The Belgian Court has had the audacity to impose Belgian Procedural Law on Spanish Law -which is the only competent-, to affirm that the Supreme Court is not competent to prosecute Catalan politicians, who are only tried before the Superior Court of Justice of Catalonia. It has alleged that Spain has violated Article 47 of the EU Charter of Fundamental Rights, which provides that “everyone has the right to have their case heard fairly, publicly and within a reasonable time and by an independent and impartial court, previously established by law. Any person can be advised, defended and represented”. According to the regulations on the OEDE, the State to which surrender is requested can only refuse to do so when there are reasonable grounds to believe that the execution of the Order would negatively affect the fundamental rights of the requested person. The Belgian Court has meddled in Spanish Procedural Law and has started from false premises: that the Supreme Court is not competent to make the Euro-order and prosecute Puig, since only the Superior Court of Justice of Catalonia can do so, and that, by having intervened an incompetent court, the right of the former Minister of Culture to be tried by his natural judge has been violated. Ergo, Puig has been adversely affected in a fundamental right, so Belgium is not obliged to surrender him. A Belgian judge does not have jurisdiction to decide what is the procedural rule applicable in Spain to a given case and his decision is clearly “ultra vires”. As Rafael Arenas has observed, the Belgian judge has supervised the interpretation that the Supreme Court has made of the Spanish Criminal Procedure Law, which is not only contrary to the Euro-order, but to the entire logic of judicial cooperation in Europe, which is based on the principle of trust and mutual respect. Hence, the interpretation made by a judge of a Member State of its own law has to be accepted by other European judges. The first to request a Euro-order against Puigdemont and four Councilors of his Government - including Puig - was the examining magistrate of the National Court, but, as procedurally protected people were affected, the Supreme Court took up the case and appointed an ad hoc instructor, who instructed the proceeding against Vice President Oriol Junqueras and the other persons involved in the illegal referendum of October 1 who had remained in Spain. They have been tried by the competent predetermined court - the highest in the country - in an exemplary trial that was broadcast live on TV, and in which the accused have been sufficiently advised and defended. Showcasing its ignorance of Spanish Procedural Law, the Belgian court has maintained that Puig would be tried by the Supreme Court, which is not true, given that - as he is not a MEP like his colleagues and is not procedurally protected -, he would be tried by the National Court, like the Chief of the Mossos, José Luis Trapero or the political leaders of the regional police. The Chamber of the Council of Brussels has accepted Puigdemont's affirmation that his fundamental rights had not been respected and - going once again to the bottom of the matter, to which they are not authorized -, has cited as a great legal reference the 2019 report of a Working Group on Arbitrary Detention, which affirmed - in and of itself, and without the slightest legal basis - that the Supreme Court was not competent to judge those indicted for the illegal referendum of October 1st. One of the most discredited bodies in the UN is the Human Rights Commission, whose members are co-opted by regional UN groups. This makes it possible for States with dubious pedigree in terms of Human Rights, such as Russia, China, Iran, Iraq, Saudi Arabia, Bahrain, Cuba, Venezuela or Nicaragua, which is like putting foxes to guard the henhouse. The Commission creates the most diverse Working Groups on very diverse topics, some of which are made up of inappropriate or mercenary people, who are sold to the highest bidder. It is these groups that the Generalitat takes advantage of to make its international propaganda in exchange for substantial monetary or in-kind contributions. Such has happened with the aforementioned Arbitrary Detention Group, whose rapporteur was José Antonio Guevara, a Mexican jurist of dubious reputation. When he visited Spain to see the situation on the ground, he had already drawn up his report, in which he maintained that the detention of Oriol Junqueras, Jordi Sánchez and Jordi Cuixart represented a violation by the Spanish State of the Universal Declaration of Human Rights and demanded their immediate release. It also questioned the competence of the Supreme Court to try the defendants. The reports of the Working Groups are not binding, unless the Commission assumes them and adopts the corresponding resolution. The Government already criticized the aforementioned report, which lacked the least legal rigor and was full of fallacies and inaccuracies. The decision of the Brussels Chamber has been enthusiastically received by the Catalan separatist sectors. The Vice President of Parliament and Puig's lawyer, Josep Costa, has affirmed that it is a sentence of great importance, because it addresses the issue of competence and speaks of a violation of the fundamental rights of the person requested. He has estimated that the criterion followed with respect to Puig could also be applied to Puigdemont, in the event that the European Parliament granted the request and lifted his immunity. Arturo Puente has written in "elDiario.es" an article entitled "The latest misstep of the Supreme Court in Belgium leaves Puigdemont's extradition aspirations touched", in which he highlights that it has been the first time that a Belgian judge has substantiated the refusal to deliver a requested person through a Euro-order on the basis that a violation of the fundamental rights of the interested party would occur. The decision is not wasted. It is arbitrary, invades the sovereignty of the Spanish jurisdiction, seeks to determine who would be the competent court to try Puig, fails to comply with the provisions of the Decision on the Euro-order by improperly entering to examine the merits of the case, and violates the principles of the EU in matters of judicial cooperation. It is ignorance at best and prevarication at worst. Impact of the resolution on the OEDE and on Spanish-Belgian relations The decision of the Chamber of the Council of Brussels will have serious consequences in the areas of the structure and operation of the Euro-orders, and in that of Spanish-Belgian diplomatic relations. The “Impulso Ciudadano” (Citizens’ Impulse) association has sent letters to the Spanish Minister of Justice, the European Commissioner for the sector and the groups of the European Parliament to draw attention to the serious discrepancies between Belgium and Spain in the interpretation and execution of the Euro-orders, that must be resolved. They have called for reflection on the functioning of the Order, the European project for judicial cooperation between the Member States to be strengthened and the legal instruments of the EU be applied effectively. It has also pointed out that decisions such as the one adopted by the Brussels Chamber condition in Spain the perception of the object and purpose of European integration and encourages Euroscepticism. I share the opinion of Impulso Ciudadano and agree in its assessment that the Euro-order regime is not being applied properly and makes it difficult to achieve a single European legal space. Despite the reluctance of the European Commission, modifications must be made to the system to improve its operation, specifying the assumptions of automatic delivery, clarifying the assumptions of double criminality and reinforcing the automaticity and speed in the delivery of the required persons. In the meantime, the European Commission - and eventually the EU Court of Justice - should oblige Belgian courts to loyally comply with the provisions relating to the Euro-orders. If these objectives are not achieved, the Spanish courts should apply the principle of reciprocity and refuse to process the Euro-orders requested by the Belgian courts. As Arenas, Vice President of Impulso Ciudadano, has declared, the Spanish governments have declared respect for judicial decisions, as if they were talking about the sentence of a court in a criminal case and it is not like that. When the first refusals arose, the Government should have acted in accordance with the nature of the Euro-order and the Minister of Justice should have said: “We are concerned that they are not being complied with, because the logic of the Euro-order is for it to be executed. And I am going to meet with the EU Commissioner for Justice to analyze this problem, and ask the European Commission to carry out an analysis of mandatory compliance with Euro-orders. We want to have a report on how many Euro-orders are fulfilled and executed, and how many are not and for what reasons”. And from there, having asked for a revision of the instrument, because what cannot be is that the criteria for applying them vary from country to country. And what the EU should have done was urge the Commission to do the same and, if reforms had to be introduced, introduce them. If we understand that its scope of application should be reduced to certain crimes, then there will be no choice but to assume it and exclude some controversial crimes - such as rebellion or sedition - from the application of the Euro-order. “What cannot be is that we have an instrument that in theory should have caused Mr. Puigdemont and the rest to be in Spain two years ago and it is not like that. It cannot be that Spain is executing the Euro-orders with all loyalty, all those that are asked of it, rigorously applying the instrument, and other countries are not doing the same. It is inacceptable”. Arenas has also considered that there is a way for the CJEU, by sending a preliminary ruling, to interpret how the Euro-orders should be applied in these cases. The TS is the one who should have raised that question. The Government could warn that, in the event that the Euro-orders were not addressed, it would study the possibility of sending to the Luxembourg court those States that did not comply with them and that it would be the latter to determine whether or not there had been a breach of the law of the EU. But it is not only a technical-legal problem, there is also an important political component. Belgian courts and the country's authorities in general have repeatedly shown contempt for, and hostility to, the Spanish jurisdiction, and denied credibility to its judges and even the status of Spain as under the rule of law. This is intolerable and very adversely affects the cordial relations that should exist between two States that are partners within the EU and allies within the framework of NATO. I do not understand the attitude of the courts and the Government of Belgium, and I do not know the steps that the Government and the Spanish diplomacy have been able to make to alleviate this unfortunate situation, but the results do not seem to have been satisfactory. The continuous unfriendly acts towards Spain could even constitute a reason for the rupture or interruption of diplomatic relations between the two countries or, at least, have caused the presentation of strong diplomatic protests or the withdrawal for some time of the Spanish Ambassador in Brussels. The Spanish Government should be more firm and less tolerant of the unjustified outbursts of the Belgian institutions. With a partner and ally like Belgium, Spain does not need enemies.