Catalan can

Why Germany could save Carles Puigdemont

People tie yellow ribbons to a fence, as they protest in front of Germany’s Consulate after former president Carles Puigdemont was detained in Germany, during a demonstration held by pro-independence associations in Barcelona
More than a fence in the way. Source: Reuters

In April 1917, Germany famously turned a blind eye when it let the Russian fugitive Vladimir Lenin transit from exile in Switzerland to lead a revolution in his homeland. Although that decision changed the world for ever, it did at least allow German immigration officials to dodge a bullet.

The same can’t be said 101 years later. On Sunday, police in the northern German state of Schleswig-Holstein arrested the fugitive Catalan leader Carles Puigdemont, as he drove from Denmark toward his exile home in Belgium. The separatist, who fled Spain in October after a failed secession bid, was detained under a European arrest warrant (EAW) issued in Spain. Magistrates there want him on charges of misuse of public funds and rebellion, which could land him in jail for up to 30 years.

So where does this leave him, and the German judges and politicians who will decide his fate? The short answer is in an unenviable position. Despite both countries being in the European Union, it is not simply a case of Germany handing over Mr. Puigdemont. Extradition laws suggest this will be no cut-and-dried case, with many legal experts saying the former Catalan president has a realistic chance of walking away.

“Our law forbids extradition because of a political act.”

Joachim Wieland, public law expert, German University of Administrative Sciences

The first problem is the arrest warrant. At a preliminary court hearing in the northern city of Neumünster on Monday, judges expressed concern that the charge of rebellion may not be covered under the rules of the EAW. And according to Joachim Wieland, a public law expert at the German University of Administrative Sciences in Speyer, there’s another technical difficulty: “[The EAW rules] stipulate that prosecution of a person for reasons of political conviction is inadmissible.”

The warrant is not the only technical problem. Cases such as this are determined on points of national and European law. This means that for the charges to be enforceable, Germany must have equivalent laws to those under which Mr. Puigdemont is charged in Spain.

The Spanish magistrate justified charges of rebellion by alleging Mr. Puigdemont must have known that his illegal independence referendum would lead to violent protests, which did occur after the vote. But even if the German offense of high treason is considered equivalent, the danger of violence would not be considered a threat to constitutional order.

“In high treason, violence is defined as having serious consequences, such as paralyzing the security of supply or endangering public health. I don’t see that happening in Spain,” Thomas Wahl, an expert at the Max Planck Institute for Foreign and International Criminal Law, told Handelsblatt.

Then there’s a last technical hitch. “Our law forbids extradition because of a political act,” Mr. Wieland said.

But while rebellion might be out, misuse of public funds might not be. Germany has an equivalent embezzlement law to Spain’s, and the court could set prosecution under only this charge as a condition of the extradition. It carries a far shorter jail term, however.

Even if judges rule that Mr. Puigdemont can be extradited, German law could still see him walk free. The path to the Federal Constitutional Court would be open, and it consistently implements the rule of law according to the principle “no penalty without guilt.”

According to Mr. Wieland, this is “endangered if prosecution is politically motivated and is not strictly based on the principles of the rule of law.” Spain, fresh from seeing off the Basque separatist group ETA and particularly sensitive to separatist aspirations, could be open to such accusations, he notes.

That said, other legal experts, such as Michael Kubiciel, a professor of German and European law at the University of Augsburg, points out that the Constitutional Court usually bows to EU law.

But legal arguments aside, the reason why German officials would have been relieved to see the back of Lenin remains: politics. While Berlin has been busy washing its hands, it is Schleswig-Holstein’s attorney general who must apply for Mr. Puigdemont’s extradition, and he is under the direction of the state’s justice minister. They have 60 days and counting to decide to what extent the sleepy farming region wants to get involved in the constitutional order of the EU’s fifth biggest member.

David Reay is an editor with Handelsblatt Global. To contact the author: reay@handelsblatt.com

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