Opinion German Court Made Right Decision in Releasing Puigdemont

A German court ruled Thursday to temporarily release Catalonian separatist leader Carles Puigdemont. The case is still under review, but the judges have lifted the most serious charge the former leader faced. It was the correct decision.

A Puigdemont supporter waves a Catalan independence flag at a jail in Neumünster.
DPA

A Puigdemont supporter waves a Catalan independence flag at a jail in Neumünster.


The document, "Causa Especial (Special Legal Matter) 20907/2017," bears the official seal of Spain and the label "European Arrest Warrant/International Arrest Warrant." DER SPIEGEL has obtained a copy of the document, issued against Puigdemont i Casamajó, Carles. Known address: Helsinki (Finland) or Waterloo (Belgium). But whereas Waterloo is best known for Napoleon's defeat, it's actually a victory that the former Catalan president has now secured in the German city of Schleswig.

On Thursday, the Higher Regional Court located there ordered Puigdemont's provisional release from prison on bail. Spain's arrest warrant is still under review, but only for the charge alleging that he misused public funds -- and no longer for the more serious charge of rebellion, which can carry a maximum prison sentence of up to 30 years. The court ruled that the charge levelled by the Spanish government against the separatist leader "would not be criminally punishable in the Federal Republic of Germany under law applicable in Germany."

Under the rules for European arrest warrants, Puigdemont can only be extradited for actions that would be punishable under German law. That review is not necessary for certain serious crimes, including corruption. And in their arrest warrant, the Spanish had indeed checked the box for corruption, but there was no reference in the warrant text indicating that any corruption had occurred.

The allegation of rebellion, by contrast, is discussed at length in the warrant, but the substantiation is ultimately just as inadequate. The threshold for rebellion -- or the corresponding criminal offense of "high treason" -- is only reached in cases where evidence suggests that the suspect intended to use force to gain independence for a part of the national territory. Without force, there is no rebellion. And because there was no clear evidence of such an intention to use violence in the warrant, it made sense for the court to drop that charge.

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A Dearth of Evidence

The first sentence in the reasoning provided for the warrant states, "The person accused in this legal case purposely intended to obtain the independence of the autonomous community of Catalonia from the rest of Spain." It doesn't get much more concrete than that in any of the following 14 pages out of a total of 19. Puigdemont doesn't even make an appearance in the first section describing political events in Catalonia. And when the warrant finally does get to the "actions of the government of the autonomous community of Catalonia," one learns that Puigdemont signed a decree to hold the independence referendum "in violation of the orders of the Constitutional Court." The next allegation is that, three days before the referendum, he took part in a meeting in which "an escalation of the violence with significant confrontation was foreseen." It then tersely states: "Despite this, the government officials decided to hold the vote." The arrest warrant never goes any further in describing the allegation that Puigdemont sought to use violence to achieve Catalonian independence.

The warrant does mention that on Oct. 1, the day of the referendum, Catalonian protesters attempted to fight to free the routes to voting stations that police had sought to block and that many police were injured as a result. But Puigdemont isn't even mentioned in this context. He is neither accused of having directed the protesters nor is there any allegation that he did anything to motivate anybody to use violence.

On this point, the conclusion drawn by the Higher Regional Court in Schleswig is not entirely comprehensible. Puigdemont, the court wrote, "as initiator and advocate of the referendum's implementation, must be held responsible for the acts of violence committed on the day of the referendum." Going by that logic, government leaders who arrange to host G-20 meetings could be held responsible for the violence that inevitably results.

Court Requests More Information

More decisive in the ruling, however, is the Schleswig court's assessment that the acts of violence, in their "nature, scope and effect" would not have put enough pressure on a government to force it to "to surrender to the demands of the perpetrators of violence." With that, the court excluded the possibility of the application of high treason, the provision in the German penal code that comes closest to Spain's rebellion charge.

Now the focus is on whether, as a result of holding the referendum, Puigdemont misused public funds. According to Puigdemont's lawyers, the former Catalonian leader denies that public funds were used to finance the referendum. The arrest warrant also fails to provide evidence to back up the allegation.

The Higher Regional Court is now requesting additional information from Spain. Puigdemont has been released from jail until a decision is made, but he is required to remain in Germany until further notice. If, however, Puigdemont is ultimately extradited to Spain, he can no longer be prosecuted on the rebellion charge in the country.

The Higher Regional Court's decision was overdue. In principle, the lower court in the city of Neumünster that originally considered the case could also have made the same ruling. The Higher Regional Court ruling was still too merciful with its treatment of the Spanish arrest warrant. Ultimately, though, the judges in Schleswig showed some guts.

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cosme.ojeda 04/06/2018
1. Releasing Catalan Secesionist Leader
Under the rules for European arrest warrants, perhaps the Schleswig-Holstein Court has exceeded its functions in the verification of the principle of double criminality by determining that the incriminating evidence does not constitute a crime of rebellion when the Spanish Supreme Court has established it. But let the Spanish Supreme Court decide if they present a preliminary question before the Court of Justice of the EU for a possible overreaching of the Regional Court of Schleswig-Holstein in the verification of the principle of double criminality. What Spanish citizens would like other Europeans to consider is that if Catalan regional authorities act repeatedly agains court rulings, they should be subject to the rule of law. Just like anyone in democracies. As millions of Germans that have visitied Spain in the last decades, we are a normal democracy that works with the Eurpean Institutions. In Germany, France, and most European members of the EU, you cannot celebrate a referendum for secesion. A region cannot break apart from the state. Nor in the US. We have suffered a illegal, and I would therefore say violent, attempt to brake our country using regional insitutions and public funds. Just as in the US before their civil war in the ninetten century, but with the modern means of the early the twenty first century. It is difficut to expain how shuch thing has happened, because no other regional authority has gone so far in Europe. And as you know we have 276 regions, and 275 abide by the law. This irresponsible attitude of the Catalan pro-indepenedence leaders, put half of the populalation against the other half. Pointing, signalizing and stigmatizing the ones that do not agree with the pro-independence ideas; just like in your country darkest days. We need to recover the civic coexistence of those who disagree in Catalonia and for that we must judge those who have put it in danger. Nothing else. Nothing less. And partly thanks to the similarities of our 1978 Constitution with your Basic Federal Law of 1949.
Monteiro 04/07/2018
2. Puigdemont Court decision
I disagree with the Court for the following reasons. The Judges did not accept the crime of rebellion because it was not sufficient to force the Government of Spain to accept the unconstitutional declaration of Independence of Catalonia from Spain! Another words the government of Catalonia did not have an army, besides the regional police, with more planes, artillery pieces, airplanes, etc, to overthrow the national government in Catalonia! If the regional government of Baviera had such leaders similar to Puigdemont and its conspirators, and refused to obey the law, and declared independence with the support of thousands on the street, it would have been legal in Germany? This decision causes more harm to Germany than to Spain.
mcando1061@yahoo.com 04/08/2018
3. Release of Puigdemont
Why do catalan nationalists ( 40%) want to separate from Spain? Because of ethnic pride based on prejudice against the Spanish people, even though more than 50% of catalans are of Spanish origen. Another reason is they do not want to share their wealth with the rest of Spain. To achieve their dream of a catalan republic they are willing to violate the law and the Constitution. The catalan government, La Generalitat, refuses to obey the verdicts of the Supreme Court. Who is more familiar wish this problem, the Spanish or the Germans? We are a democratic country, member of the EU, and we have the right to prosecute individuals that violate our laws, It's that simple.
curruca 04/15/2018
4. It is all down to guts!
According to the conclusion of the author it's all down to feelings, intuition or even bravery. A complicated claim in any field including law. Just because you feel something doesn't mean is true. Moreover, the author makes a disingenuous comparison when claiming that if the ousted president is, as the judge states, "responsible for the acts of violence committed on the day of the referendum" so are the G-20 governments for "the violence that inevitably results” of their meetings. Thus according to this opinion, not only it all boils down to the “right” feelings but also to the equal legitimacy of all factions: a secessionist president and established states and governments. Let me clarify that the the judge only claims that, under the Law of Germany, the ceased Catalán regional president has not committed the specific crime of rebellion; which is not to say in any way or manner, that in Germany a similar conduct would be legal or allowed to go unchecked. The judge’s view is also openly sustained by many relevant Spanish jurists. No surprises there then. It only shows that the secession attempt is a novel form of constitutional challenge difficult to pin down juridically. But the facts remain stubborn. Germany has its own historical legal categorisation system which, in substance, is equivalent to the Spanish constitution. The German Constitutional Court in his decision of 16 December 2016 rejected the constitutional appeal lodged by a Bavarian citizen after the application for a referendum of independence. The court wrote: “In the Federal Republic of Germany, which is a nation-state based on the constituent power of the German people, states are not ‘masters of the constitution’,”. “Therefore there is no room under the constitution for individual states to attempt to secede. This violates the constitutional order.” Similar judgments and doctrine has also been issued by the US Supreme Court, Alaska Supreme Court, Italian Supreme Court, Spanish Supreme Court, EU leaders, UN doctrine as well as the very own Catalan Parliament legal advisers. The fact is that the right of secession is not contemplated in international or, with three exceptions, any national law. So let’s not confuse a professional disagreement in the legal typification, the definition in code of what the criminal act is, with the consensual anti-constitutionality of the secessionists actions.
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