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The ruling of the European Court of Justice (ECJ) on questions arising from Belgium's refusal to handover Catalan exile Lluís Puig to Spain, warns that an EU member state cannot refuse, "in principle", to execute a European Arrest Warrant (EAW), but it can apply a national provision which provides that the arrest order must be refused "when such execution would lead to an infringement of a fundamental right". The EU judges admit, as argued by the defence lawyers of the exiled Catalan politicians at the hearing last April, that the court making the decision can take into account deficiencies in the judicial system "that affect the judicial protection of an objectively identifiable group of persons to which the person concern belongs", that is to say, in this case, deficiencies that affect the treatment which pro-independence Catalan leaders and supporters receive from the Spanish justice system.

The ECJ has thus responded to the preliminary questions presented by the Spanish judge Pablo Llarena over the refusal of the Belgian judiciary in January 2021 to execute the arrest warrant against former Catalan minister of culture Lluís Puig. The Brussels court concluded that the Spanish Supreme Court did not have competence to try the politician. In response to this refusal, Llarena presented a series of questions to the European court in which he asked if it was possible to present a new EAW against the same person and for the same matter and whether a state can refuse such an EAW arguing an infringement of fundamental rights. In July, the Court of Justice's Advocate General gave an opinion in favour of Llarena. However, in the court's decision announced this Tuesday morning, it tempers this opinion, concluding that it is possible to issue a new European warrant, but that this is subject to a series of considerations that represent important restrictions on the application of EAWs, in a ruling that may affect all the exiled Catalan pro-independence politicans listed in the court document along with Puig: Carles Puigdemont, Toni Comín, Clara Ponsatí, Meritxell Serret, Marta Rovira, and Anna Gabriel.  

Spanish Supreme Court's lack of competence  

The text warns that the justice system of an EU member state cannot refuse to execute an EAW based exclusively on its own law, because this would not allow the application of European warrants in a uniform manner and, therefore, this refusal must have exceptional character. On the other hand, it admits that if the wanted person argues that they are exposed to an infringement of the fundamental right to a fair trial - by being tried be a court without juriddiction - then a deciding court like that, in this case, of Belgium, must examine if this risk exists due to systemic or generalized deficiencies in the functioning of the judicial system of the EU member state, or "deficiencies affecting the judicial protection of an objectively identifiable group of persons to which the person concerned belongs". In the hearing in April 2022, the exiled Catalan politicians' defence arguments asserted the existence of such deficiencies, affecting the treatment that the independence movement receives from the Spanish justice system.

The Court of Justice thus states that it is valid for a court like that of Belgium to deny such a warrant from the Spanish Supreme Court, if it concludes, "first, that there are such deficiencies in the issuing member state and, secondly, that that court clearly lacks jurisdiction." In fact, throughout the ruling, it asserts the correctness of one of the central arguments of Lluís Puig's defence, throwing doubt on the Supreme Court's jurisdiction: "a national supreme court that decides at first and last instance on a criminal matter without having an express legal basis giving it jurisdiction to try all the defendants", says the full ruling (page 15, paragraph 100), "cannot be regarded as a tribunal established by law".



Above, the 3-page press statement in English by the European Court of Justice summarising its ruling over the preliminary questions asked by judge Llarena. The full 37-page court ruling in English is attached at the end of this article.    

The judgment also asserts warns that a member state cannot refuse to execute an EAW due to lack of jurisdiction of the court, in this case the Supreme Court, without having previously requested additional information from this court.

UN Working Group's findings on Spanish repression  

In relation to another of judge Llarena's questions, the European court states that the report of the United Nations Working Group on Arbitrary Detentions, which the pro-independence parties put forward as evidence, cannot be an argument for refusing the European warrant, but, on the other hand, it can be taken into account among other elements to appreciate the existence of systemic or generalized deficiencies in the functioning of the judicial system or against a group of people.

Finally, it concludes that it is not opposed to the issuing of several successive European Arrest Warrants against the same person after the first one has been refused, as long as the execution of a new warrant does not result in the violation of the framework decision that regulates it and that it "has a proportionate character".