PREJUDICIAL QUESTION BEFORE THE EUCJ FOR THE RESOLUTION OF THE OBERLANDESGERICHT OF SCHLESWIG-HOLSTEIN ABOUT PUIGDEMONT?

            The resolution by the Obelandesgerich (OBG) of Schleswig-Holstein refusing to surrender Mr. Carles Puigdemot on the grounds of rebellion has seriously undermined the effectiveness  of the European Arrest Warrant (EAW) isued by the Spanish Supreme Court (SC), because it shows the mistrust of a German court of another Spanish Court, and breaks the foundation of the Warrant, which relais on the trust between States which share the same regime of rights and similiar judicial systems. Esteban González Pons has commented that there is something wrong in the European Union (EU) if, in only two days, a regional Court can deprive of authority the criteria of a national SC, which has been elaborated during six monthts of investigarion, and leaves no possibility of appealingt to a higher instance. Melitón Cardona has wondered whether the court of a land of a Member State could ignore the EAW submited by the SC of another Member State. I think that this is possible, because it is not a question of judicial jerarchy but of compliance with the applicable EU’s rules. The OBG is the institution competent to implement the EAWs and, if  it considers that the request does not comply with the legal requirements, it can and should reject  it. Once the Court has taken a decision about surrendering or not Mr. Puigdemont to Spain on the grounds of embezzlement, its resolution will become final and the Spanish part will be able to make an appeal to the German SC and, enventually, to the Constitutional Court (CC). The Instructing-Judge, Pablo Llarena, should take advantage of this “time-out”  to reinforce his legal arguments and reformulate the Warrant in order to include it in the crime of  sedition  contemplated im the German Penal Code.

            The OBG has overstepped its functions since it has supported its resolution  basically  not on the Penal Code, but  in a specific caseof domestic jurisprudence which has little to do with the situatuon in Catalonia: that is, the1973 sentence of the SC, which exonerated a few ecolologists from Frankfurt from the offence of “coertion against constitutional organs”, because the violence that they exerted did nor prevent the State from restoring  public order . The Court has maintained the incredible thesis that the Puigdemont Case was not only similar to the Schubart Case, but that, in some points, they were identical. In Enrique Gimpernat’s view, the Court’s assertion that  Puigdemont behaviour would not be punishable in Germany was erroneous, because –although the prosecuted persons were absolved of the main crime, they were nevertheless condemned for “break of public peace” and for “generic coercion”.

            As the the Professor of Köln University, Juergen Donges, has stated, the German Costitution does not allow, under any circumstance, the sedition of any  federated State, since territorial integrity is inviolable. Hence, the CC did not admit the request to celebrate a referedum about the secession of  Bavaria from Germany. TheUnilateral Decaration of Independence of Catalonia was a “coup d’Etat” against the legal democratic system established by the Spanish Constitucion and the Calalonian Statute of  Autonomy. Such an act  “would be utterly intolerable in Germany and force the Federal State to intervene in accordance with article 37 of the Constitution”,  which has copied article 155 of the Spanish Constitution.

            Llarena plans to file a prejudicial question in order that the Court of Justice of the European Union (CJEU) may decide about the OBG’s resolution, since disputes among the Courts of  Member States of the EU must be settled by the CJEU whenever the dispute  is based on a point of European law. In the present case, the Spanish SC has good reasons to disagree with the OBG’s interpretation of the EAW Framework Decisision and the dispute should  be settled by the said Court. According to Gimbernat, Germany is obliged to surrender Puigdemont to Spain on the grounds of the crimes of rebellion and embezzlement and, if she is not ready to do so, the Spanish side should file a prejudicial question in order that the CJEU may determine whether the interpretation of  the EAW made by the OBG is correct. One may wonder whether it is coveniento to do so and my answer is No. The CJEU should adjudicate whether the OBG has complied with the requirements of  EU’s rules and I believe that it has done so, however wrong its conclusions may have been. It is most likely that the Court would consider correct the implementation of the EAW from a formal point of view, without neither taking position about the arguments exposed nor entering to examine the merits of the resolution. My conclusion is supported by the European Commissioner of Justice, Vera Jourova, who has stated the the German Court had correctly implemented the EU rules on the EAW and that the experts of her team had not warned her about any wrongful implementation of the Warrant. A sentence of this kind, added to the OBG’s resolution denying Puigdemont’s surrender on the grounds of a crime of rebelion would weaken the legal position of Spain.

            With the submission of a complaint for prevarication against Llarena –that they are aware that cannot succeed- , the Speaker of the Catalonian Parliament, Roger Torrent, and its Board  are trying to declare the Judge incompetent to continue with the instruction of the case, annul the proceedings and run down the Spanish Justice in front of international public opinion, maintaining that a Judge indicted  -even if the complaint is not admitted to consideration- lacked the due impartiality and neutrality to continue the instruction of the Puigdemont Case.The Spanish Public Prosecutor should prosecute Torrent for the offences of prevarication and desobedience, and the plaintifs should be condemned for the crime of “false accusation and denunciation”.

Madrid, April 17^th 2018