Toni Strubell, Núria Bassa – The Catalan independence case reaches the EU Court of Justice

It appears that the Catalans may well still once again discover that justice in the EU is dictated by the EU political class

Toni Strubell  is a former MP in the Catalan Parliament, journalist, and author of What Catalans Want

Núria Bassa Camps is a Catalan writer and photographer

Article publicat en catalan aqui


Defence lawyer Gonzalo Boye at the CJEU

Last April 5 saw the initiation of Court of Justice of the European Union (CJEU) proceedings that will probably decide the fate of exiled Catalan president Carles Puigdemont. The court is to decide whether or not to accept the European Arrest Warrant issued by Spanish judge Llarena for the extradition of former Culture minister Lluís Puig, a decision that is sure to affect the situation of all the exiled Catalan
politicians. The case has been raised after a long cycle of trials and appeals in Spanish courts
that the defence has often described as a tailor-made operation to try to keep the case away
from Europe for as long as possible.
While there is little more to go on than the questions asked by the parties at the hearing to see
how things may develop, a key issue in the debate was the controversial decision made to
judge the Catalan independence leaders at the Supreme Court in Madrid. The defence argues
that to be unfair, this trial should have been conducted in a Catalan court. The defence see this
decision as a bid by Madrid to secure by all means the harshest possible convictions by
accusing them of the crimes of “sedition” and “rebellion”, a step that several international
observers considered quite preposterous at the time (2019). In this regard, defence attorney Gonzalo Boye stated at the outset of the hearing that it was not just a question of “legal
competence” that was at stake, but one of human rights. This argument had been vital in the
decision taken by a Belgian court to reject the extradition of Culture Minister Lluís Puig in
January 2021. Today, however, there is some doubt that this question will get the same
response at the CJEU. Boye also criticized the fact that the Supreme Court had acted in a
discriminatory manner in the cases of Lluís Puig and Meritxell Serret, ex-ministers who had
exactly the same trajectories in both the Catalan government and in exile (at least until the
surprise return of Serret in March 2021). He asks why Serret is to be tried in Barcelona rather
than in Madrid. Another argument pointed to by several members of the defence was the fact
that both the European Commission and the United Nations Working Group on Arbitrary
Detention had repeatedly condemned Spain’s treatment of the persecuted Catalan leaders.
While the court is unlikely to focus on the particular events tried at the 2019 trial, it is hard to
imagine that the very severe convictions (up to 13 years) will not come under some kind of
scrutiny. Another question is whether the defence’s attempt to question Spanish justice –
which it defines as “generally deficient” – will have the desired effect. The EU has for too long
shown an unwillingness to question the overall judicial legitimacy of its member states in such
a way. This is sure to continue to be true at a time when the trauma caused by Brexit still
weighs heavily. Another factor would be the need to show a united Europe to counter Orban’s
“disloyal” Hungary. It is therefore most unlikely that the EU will rock the boat in Spain, a
country generally considered “loyal” (despite the recent drop some observers have seen in the
country’s democratic standards). But if the scandal of the 3-year delay in renewing Spain’s
main judicial body (the Superior Council of the Judiciary) led to little more than gentle scolding,
the way in which Madrid has treated pro-independence activists so far (with prosecution and
convictions for as many as 3500) is unlikely to ruffle CJEU feathers. Furthermore, it seems
unlikely that the defence will be able to convince the current CJEU that Spain is a country
where a fair trial cannot be guaranteed. Another issue dealt with at the hearing was whether
Spain’s European Arrest Warrants should be rejected on the grounds of Spain’s alleged
“systemic deficiency” or whether it would be enough to achieve this step on the grounds that
there is discrimination or ill-treatment of specific groups (such as the Catalans).
However one worrying omen that the court may rule in Madrid’s favour, and not in the
Catalans’, is the indifference shown by Europe to Madrid’s refusal to recognize the immunity of
MEP Oriol Junqueras, thus preventing him from occupying his seat in the current European
Parliament. The defence sees this as a case of blatant disregard for EU parliamentary
procedure. If the CJEU took no measures there, there would seem to be little guarantee that
other arguments wielded by the defence will be taken into consideration. For example, Italian
judge Lucia Serena Rossi’s ardent claim that the Catalan exiles are “victims of political
persecution” or the fact that the Catalan Ombudsman, Rafel Ribó, should have denounced
(7/4/2022) that the promotion of the European Arrest Warrants are the direct result of the
political pressure exerted by the Spanish government and thus a breach of the separation of
powers. Ribó is also adamant about the fact that the Spanish Constitution should never
outweigh the exercise of human rights as he claims occurs in this case. Another factor that
ought to raise the eyebrows of the CJEU judges is the opposition filed against the convictions
by Spain’s Constitutional Court judge, Ramón Sáez Valcárcel. He regards them to be based on
“private views” and “opinions” that have led to unfair and prefabricated charges of sedition.
Indeed, he is not alone in the Constitutional Court as regards his position against the
convictions, a factor the CJEU should not overlook. Were the current EU institutions not so
State-centred and incoherent, perhaps one could have more confidence that the sound
arguments made by the defence would bear more weight in the CJEU’s final verdict regarding
the dramatic events that took place in Catalonia in 2017. As Julian Assange said in 2017,
Catalonia will set a precedent for the future of democracy in Europe and the world.
Unfortunately there is little chance that the EU will take him up on that one.

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