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One of the reasons given by the Belgian judiciary for not accepting the extradition of Lluís Puig was that the Spanish Supreme Court was not competent to judge the case of the exiled Catalan government minister, and this was one of the key points raised in debate during the key hearing today on the matter in the EU's highest court, the European Court of Justice (ECJ) in Luxembourg. Another key question at the hearing was whether it would be necessary to prove a widespread deficiency in the Spanish judicial system to deny the European Arrest Warrants (EAWs), as claimed by the European Commission, or whether the existence of a risk against a specific group is sufficient, as lawyers for the exiled politicians argued. After more than seven hours of defence of arguments in relation to Spain's warrants for the arrest of the exiled Catalan politicians in Europe - a hearing prompted by Spanish judge Pablo Llarena's preliminary questions to the ECJ on the matter - the Court adjourned. The judges had had the opportunity to note the differences between the arguments in defence of the exiled politicians, on the one hand, and the Spanish public prosecutors, the country's state solicitors, the European Commission and the far-right Vox party on the other. For their part, the parties were able to see, through the questions that the court asked, how this debate also raises differences of criteria among the judges. And on top of all that there were other aspects, such as the legal representative of the Kingdom of Belgium softening the position that the country had initially set out, after it was the Belgian judiciary that denied Lluis Puig's extradition and led Llarena to put his questions.

The Spanish Supreme Court's competence to hear the cases of the exiled politicians was raised as soon as Lars Bay Larsen, ECJ vice-president and the judge delegated to lead the preliminary questions case, began to question the parties, starting with the representative of the Belgian state. Next to do so was the Advocate General of the court, Jean Richard de la Tour, who questioned the defence lawyers of the Catalan exiles as well as the prosecutor about the rulings of the Spanish Constitutional Court in this regard.

Boye: arbitrary decision by Supreme Court

Lluís Puig's lawyer, Gonzalo Boye, took advantage of the question on this subject to reply to some of the allegations raised in the chamber and assert that the violation of the court predetermined by law is not a matter of competence, but a breach of a fundamental right. Boye argued, via different Supreme Court rulings, that it is the Spanish court itself that admits that there is no regulation that establishes its jurisdiction in the case.

In fact, he recalled that on March 25th, the Supreme Court declared itself to not be the competent court in the case of another Catalan minister, Meritxell Serret, transferring her case to a Spanish regional court, the High Court of Catalonia, although when she was in exile in Belgium, she was in the same situation as Lluís Puig. “That is, one day I am competent, another day I am not; and another, we shall see. Why? Because it is an arbitrary decision", said the lawyer, who is also acting on behalf of Carles Puigdemont, Toni Comín and Clara Ponsatí.


Cadena, upset

The Spanish prosecutor, Fidel Cadena, replied to Boye that there are other regulations that attribute the jurisdiction to the Supreme Court and he contradicted the words of the lawyer, assuring that the Spanish Constitutional Court had ruled on the competence of the Supreme Court and had done so through the appeals lodged by the convicted pro-independence leaders. "In all cases, it was said [by the court] that no rights have been violated," he said.

When pressed on these issues, Cadena insisted that the Supreme Court in the different rulings it has made on the independence process "proclaims its competence" and justifies it using the law that imposes it. "Not only that, but as well, the Constitutional Court, when it studied the issue of a violation of the right to the court predetermined by law, ratified the action of the Supreme Court. It is clear, very clear, that the Supreme Court has established its jurisdiction and that the Constitutional Court has ratified that," he reiterated without concealing that he was upset by the insistence on these questions. In his last turn, the prosecutor compensated for this attitude by calling on the ECJ to update the directive on arrest warrants and become "Europe's procedural beacon".

Spanish state solicitor Andrea Gavela added her own voice to the prosecutor's arguments, asserting the Constitutional Court's support for the Supreme Court's jurisdiction, although she admitted that the Constitutional Court did consider that it was not the right procedural moment to make a ruling on the exiled Catalan politicians. Gavela admitted that exceptionally, when there is a risk of a violation of a fundamental right, an EAW may be refused, but she demanded "greater rigour" because, in her opinion, not all violations of competence rules, as is the case with the right to the judge predetermined by law, imply a violation of fundamental rights and the "system has mechanisms in place to correct possible errors".

Systemic risk

On behalf of the European Commission, Julio Baquero admitted that the Supreme Court had provided "unclear" information to the Belgian court, but rebuked the Belgian court, which should have communicated its intentions to deny the European warrant to the Spanish court or have raised its own preliminary question. Baquero was, on behalf of the Commission, one of the clearest parties in differentiating systemic and generalized risk from a violation of rights in a specific case. He asserted that in order to reject an EAW on the grounds of a violation of rights, it was necessary to first prove the existence of a systemic problem.

This intervention led to a question from judge Lucia Serena Rossi, who spoke of persecution for political reasons, warning the Commission's representative that it was "very dangerous" to say that the violation of an individual right could not be debated unless there was a systematic violation.

Judges' questions

This issue then appeared in numerous questions from the judges who spoke one by one. "Could these people be a group that might be exposed to this type of violation as a result of a specific deficiency against them?", asked the court's advocate general, to the representatives of both the Spanish state and the European Commission. "How can it known that rights have been violated without having found a systemic deficiency in this violation?" asked Constantinos Lycourgos, who pointed out the difficulty in knowing that the violations of rights denounced would occur when Puig has not yet been tried.

"In this case we have the past, which obviously foreshadowed the future. What had been happening in that trial was what awaited Mr Puig," said Boye, referring to the trial of the 2019 Catalan pro-independence leaders in the Supreme Court.

In fact, the differences over this point caused a tug-of-war between Boye and the president of the court, Koen Lenaerts, who repeatedly asked him whether or not the Constitutional Court had ruled on Puig's case. The lawyer had to repeat several times at the insistence of the magistrate, that an appeal has been lodged, and is pending resolution. "The Constitutional Court is ignoring the report of the United Nations Working Group on Arbitrary Detention and other evidence in this regard," Boye noted.

EU trust, but not blind trust

The lawyers of ERC's Marta Rovira and the CUP's Anna Gabriel, Andreu Van den Eynde and Benet Salellas, also answered the questions raised by six of the fifteen judges of the CJEU. Van den Eynde asserted that the Supreme Court has no legal basis that supports its assumption of competency in this case and recalled that the UN Working Group on Arbitrary Detention applied a systemic criterion on rights violations when it warned that "there are a group of people [referring to the independence process leaders] who have been treated in this way for their political views."

Salellas called on the court to apply an intermediate criterion between systemic violations and individual cases, with the aim of opening the possibility of recognizing that a group of people suffer from these violations, and also asked the Court "not to make a hierarchy of different fundamental rights, as proposed by the Spanish state and European Commission lawyers."

In the last round of questions, Isabel Elbal warned that the principle of trust between EU member states must be respected but "it cannot be a blind trust".