Cecilia Rizcallah, Research Fellow at the Belgian National Fund for Scientific Research affiliated both to Université Saint-Louis Bruxelles and Université libre de Bruxelles

Background

For over a month, Spain has been grappling with a constitutional crisis stemming from pro-independence sentiments in Catalonia. These sentiments culminated in an independence referendum held on October 1, 2017, orchestrated by the Catalan government under President Carles Puigdemont. Barcelona claims that 90% of the 43% voter turnout favored independence.

However, weeks prior to the referendum, the Spanish Constitutional Court deemed it unconstitutional and invalid. The Spanish government strongly condemned the referendum and invoked Article 155 of the Spanish Constitution, suspending Catalonia’s autonomy. This article empowers the central government to enforce legal compliance by regional authorities, effectively enabling intervention in Catalonia’s governance.

EU’s Lack of Jurisdiction in Internal Constitutional Matters of Member States

The events prompted discussions regarding the European Union’s role, with publications like the New York Times and The Guardian highlighting the EU’s absence during the escalating crisis. This restraint can be attributed to the EU’s lack of legal standing and authority to intervene in the internal constitutional affairs of its member states.

Article 4.2 of the Treaty on European Union (TEU) emphasizes the EU’s obligation to respect the national identities of member states, including their political and constitutional structures, encompassing regional and local self-governance. The article further underscores the EU’s duty to respect essential state functions of member states, including safeguarding territorial integrity, maintaining law and order, and ensuring national security. National security, in particular, remains the exclusive responsibility of each member state. European Commission President Jean-Claude Juncker stated that the situation was an internal Spanish matter to be addressed within Spain’s constitutional framework. However, he pointed out that if Catalonia separated, it would consequently be outside the EU.

Puigdemont’s Move to Brussels

While the EU theoretically lacks legal grounds for intervention in Spain’s internal crisis, recent developments have indirectly involved the EU.

Former Catalan leader Puigdemont left Barcelona for Brussels, asserting he was not seeking asylum and would return to Spain if judicial authorities requested, contingent upon guarantees of a fair trial. Meanwhile, the state prosecutor initiated legal proceedings against Puigdemont and other ousted Catalan officials for rebellion, sedition, and embezzlement. They requested a European Arrest Warrant (EAW) for Puigdemont and four former cabinet members after their non-appearance at a High Court hearing. The EAW, issued by the Spanish judge, highlights Spain’s use of EU law to address an internal matter triggered by the travel of Catalan officials to Brussels, an action initially protected under free movement rights within the Schengen area.

Puigdemont and the others surrendered to Belgian authorities, who released them under conditions including restricted movement within Belgium. A Belgian court now has two weeks to determine their extradition to Spain.

Near-Automatic Nature of the European Arrest Warrant System

Puigdemont’s lawyer asserts that he would return to Spain under guarantees of fundamental rights, including a fair and impartial trial. The lawyer emphasized that Puigdemont would comply with the Belgian judiciary’s assessment of these conditions.

However, the EAW system is designed for near-automatic execution by the receiving member state, based on the principle of mutual trust between member states. This limits the receiving state’s ability to scrutinize the requesting state’s adherence to fundamental EU values like human rights and democracy, except in exceptional circumstances. The Council Framework Decision 2002/584, which establishes the EAW, provides a limited list of mandatory and optional grounds for refusal. This list doesn’t include a general clause for human rights protection (Articles 3 and 4). Refusal to surrender, according to the Framework Decision, hinges on specific violations or threats to fundamental freedoms. Regarding fair trial rights, the Framework Decision doesn’t allow challenging the presumption of fair proceedings in other member states unless the EAW stems from an in abstentia decision, and even then, only under specific conditions (Article 4a).

A strong presumption of compliance with EU values underpins EU criminal cooperation. The European Court of Justice (ECJ) has only overturned this presumption on human rights grounds not explicitly stated in the Framework Decision when there’s a credible risk of inhumane or degrading treatment for the extradited individual (see Aranyosi case). In this context, the lawyer representing the jailed Catalan ministers filed a complaint about their alleged mistreatment, but stronger evidence is needed to halt the EAW execution.

The ECJ emphasizes that the executing judicial authority must primarily rely on objective, reliable, current, and specific information regarding detention conditions in the issuing member state. This information should demonstrate systemic or generalized deficiencies, or issues affecting specific groups or detention centers. The domestic judge must also conduct a specific and precise assessment of any substantial grounds to believe the individual might face risks due to detention conditions in the issuing state before rejecting the EAW (Aranyosi, paras 89 and 92).

Historically, refusing extradition for political offenses has been part of the international refugee protection framework. However, this ground for refusal was removed from the 1996 Convention on Extradition between EU Member States (the precursor to the EAW system) due to the principle of mutual trust in judicial systems. Interestingly, Spain pushed for this removal when it faced challenges extraditing Basque separatists seeking refuge in Belgium. Spain argued that the political offense exception hindered EU criminal cooperation and contradicted the trust member states should share (see E. Bribosia and A. Weyembergh, “Extradition et asile: vers un espace judiciaire européen?”, R.B.D.I., 1997, pp. 69 to 98).

In the current EU legal context, there seem to be no grounds for Belgium to refuse Puigdemont’s extradition under the EAW. However, it’s worth noting that the entire EAW system can be suspended under Article 7 TEU. This procedure is initiated if there’s a clear risk of violation of the values enshrined in Article 2 TEU, including human rights, democracy, and the rule of law. While some advocate for triggering this mechanism, it’s politically unlikely. Initiating Article 7 requires at least a four-fifths majority in the Council, and the threshold for proving EU values violation is very high.

Despite this, Belgian law incorporates a mandatory ground for refusal (though its compatibility with EU law is debatable): If there are valid reasons to believe that executing the EAW would violate the fundamental rights of the individual as enshrined in Article 6(2) TEU (Art. 4, 5° of the Belgian Federal Law of 19 December 2003 related to the EAW). However, invoking this exception would likely breach EU law, according to my assessment. The ECJ has consistently ruled that the Framework Decision’s grounds for refusal are exhaustive, preventing member states from using their national human rights protections to deny an EAW that meets the Framework Decision’s criteria (Melloni). Alternatively, the Belgian judge could request a preliminary ruling from the ECJ to determine if, in Puigdemont’s case, the presumption of Spain’s compliance with fundamental EU rights can be set aside.

EU Citizens and the Limited Right to Asylum

Theoretically, Puigdemont could also seek asylum in Belgium under the 1951 Refugee Convention. This convention defines refugees as individuals with a well-founded fear of persecution based on factors like political opinion (Article 1.A.2).

However, alongside advocating for removing the political offense exception in the 1996 European Extradition Convention, Spain also pushed for Protocol No 24 on asylum for nationals of EU member states, annexed to the 1997 Treaty of Amsterdam. This protocol effectively restricts the right of EU citizens to seek asylum within the Union.

Based on the presumed trustworthiness of member states’ political and judicial systems, and the assumed high level of fundamental rights protection within the EU, the protocol considers all member states safe countries of origin concerning asylum matters (Article 1). Thus, any asylum application from an EU citizen in another member state is generally inadmissible, with exceptions. These exceptions include situations where the applicant’s home member state has temporarily suspended the European Convention on Human Rights during a state of emergency (Article 15 ECHR) or if a decision based on Article 7.1 or 7.2 TEU identifies a clear risk or existence of serious and persistent breaches of EU values by that member state.

Unilaterally, a member state can choose to examine an asylum request if it immediately informs the Council and processes the application under the presumption that it’s manifestly unfounded. Belgium, which has adopted a declaration allowing it to individually assess each asylum claim from an EU citizen, invokes this exception. However, to comply with EU law, Belgium must approach these applications with the presumption that they are manifestly unfounded, making it significantly harder for EU citizen asylum seekers to meet the burden of proof. Although Belgian alien law allows for expedited asylum procedures for EU citizens (Article 57/6 2 of the Belgian Aliens Act), data reveals that approximately twenty asylum applications from EU citizens were deemed valid by Belgian authorities in 2013 and 2014.

EU Thrust into the Spotlight

Both refusing to execute the EAW or granting asylum to Puigdemont imply that the Belgian authorities or the ECJ believe the Spanish judiciary lacks the fundamental independence and impartiality to handle cases involving Catalan independence activists. Such a stance could spark significant diplomatic tensions between Belgium and Spain, and more broadly, within the EU. Questioning Spain’s adherence to essential EU values in the Catalan issue could undermine the crucial principle of mutual trust between member states. This trust is paramount not only for criminal and asylum matters but also for civil judicial cooperation. Consequently, Spain’s constitutional crisis has the potential to disrupt the entire cooperative framework of the European Area of Freedom, Security, and Justice.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter I:5, chapter II:3

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