Catalonian Independence Puigdemont Case Puts Germany in a Tight Spot

The arrest of erstwhile Catalonian leader Carles Puigdemont in Germany has put Chancellor Angela Merkel's new government in a tight spot. Berlin has the option of blocking extradition, but any move it makes could backfire. By DER SPIEGEL Staff

AFP

The setting for this international political drama is a backdrop of red brick. The prison in Neumünster was built 113 years ago and it looks like a royal fortress with its gables and monumental entry gate. Inside are 571 prisoners -- and the most famous of them, the erstwhile president of Catalonia Carles Puigdemont, can be found in a cell measuring nine square meters (97 square feet). He has had a lot of visitors.

One of those who came to see him is European parliamentarian Bernd Lucke, the founder of the German right-wing populist party Alternative for Germany, who has long since left the party and receded into obscurity. He spoke with Puigdemont in the visitors' room for 90 minutes before emerging to face the television cameras and announce with an agitated voice that the Catalonian politician was prepared to give his word of honor that he wouldn't flee if were he released from prison.

Andreas Beuth came to Neumünster as well, a well-known lawyer from the leftist scene in Hamburg, and an 18-year-old student from Lübeck representing a group called Solidarity Comité Catalonia. The group of 47 activists staged a demonstration outside the prison gates demanding that Puigdemont be released.

It was drizzling and cold and the police were all huddled in their heated van. The protest didn't have a permit, but they let the marchers wave their Catalonian separatist flags nonetheless.

With the arrest of the former Catalonian leader just over a week ago, the city has become a theater of global politics. And Germany has become a reluctant stage director. No matter what verdict is ultimately reached by German institutions in the coming weeks, the play promises to end badly for the country.

If the Germans reject the petition from the Spanish judiciary to extradite the leader of the Catalonian independence movement, it would be a significant blow to one of Berlin's most important economic and political alliances in the European Union. But if they extradite him, the move would further infuriate the Catalonians and could result in an escalation of the conflict. And in the midst of such high stakes, the German government has remained strangely passive.

An Internal Matter for Spain?

Overnight, the German government became a significant actor in a conflict that it never wanted to be a part of. Ever since the crisis began last fall, the German government has tirelessly insisted that it is an internal matter for Spain. And that approach hasn't changed. The conflict "must be solved within Spanish law and constitutional order," government spokesmen Steffen Seibert said on the day after Puigdemont's arrest. A spokesperson for the German Foreign Ministry cited the independence of the judiciary. On Tuesday, public prosecutors in the state of Schleswig-Holstein, where Neumünster is located, recommended that the court rule in favor of Puigdemont's extradition.

The reticence of the German government obscures the dilemma in which Berlin finds itself. Even if the issuance of a European arrest warrant against Puigdemont followed a clearly defined set of rules, there is also a political element to the arrest. Are the accusations against the Catalonian politician actually statutory in nature, or are they more political? Is he a criminal suspect or is he a victim of political persecution? Because extradition requests often have a political element to them, the law allows the German government to intervene and to ultimately approve or deny the extradition.

"We expect that the German government -- just as the governments of other European countries have already done -- will make use of the legally specified privilege to not approve the extradition," say Puigdemont's German lawyers, Sören and Wolfgang Schomburg. They cite the government's broad discretion pertaining to foreign policy matters.

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It seems unlikely, however, that Berlin will grant that wish. If the judiciary clears the way for an extradition, sources within Chancellor Angela Merkel's governing coalition agree, the government will not stand in the way. There are likewise no plans afoot for other steps, the government sources say. Political initiatives for rapprochement between Catalonia and the Spanish government must come from within Spain, the German government argues, adding that Germany is not interested in playing the role of mediator.

Günther Maihold, deputy director of the German Institute for International and Security Affairs (SWF), is critical of the German government's stubborn refusal to get involved. Berlin, he says, suddenly finds itself in "the quicksand of a conflict" within which a simple reliance on the judiciary combined with political reserve is insufficient. He believes the government and German parliament should use the time it takes for the extradition request to make its way through the courts to invite the two parties to the conflict to take part in a "constitutional-political dialogue." The goal, Maihold says, should be that of "avoiding the looming escalation following the extradition verdict."

A Long Way to Go

The fact that Germany finds itself in this predicament is partly a function of legal system shortcomings within the European Union. There is no collective legal language. Crimes that are punishable in Spain, for example, don't exist in the German penal code -- and vice versa. Despite joint legal instruments such as the European arrest warrant, practice has shown that every nation state uses those instruments according to its own needs.

"For years now, a broad debate over real European law enforcement and suspect pursuit has been overdue," says Sebastian Fiedler of the Association of German Criminal Detectives. "We need a uniform set of European rules for the investigation of serious crimes, a kind of European code of criminal procedure."

But as the Puigdemont case shows, Europe still has a long way to go. Indeed, it looks as though Germany was the only country prepared to follow the rules, thus putting itself in the current dilemma.

When a Spanish court issued the arrest warrant against Puigdemont in late March, the 55-year-old politician was in Helsinki visiting the Friends of Catalonia group within Finnish parliament. One of his hosts had likely unintentionally put the Spanish secret service on the trail of the fugitive, sending out a tweet announcing that the guest would arrive on Thursday evening and depart again two days later.

When Puigdemont learned that the Finnish authorities were planning on arresting him, he chose not to board his planned flight and took a ship to Stockholm on Friday evening. There, he was picked up by two Catalonian police officers who were serving him as drivers.

In late October 2017, Spanish Prime Minister Mariano Rajoy removed Puigdemont and his cabinet from office after the regional parliament in Barcelona had voted in favor of Catalonian independence from Spain. On Oct. 1, Puigdemont had presided over an unconstitutional secession referendum.

Puigdemont spurned a summons issued by a Spanish court by departing for Belgium together with four former Catalonian cabinet members. His deputy and seven other cabinet members were taken into custody in Spain and a Spanish court issued a European arrest warrant for the five fugitives. One of the accusations was "rebellion," an offense punishable by up to 25 years in prison. Another was "misuse of public funds," which carries a sentence of up to eight years.

Tracking Puigdemont

On Dec. 14, a court in Brussels was set to issue a ruling on the extradition of Puigdemont and his companions to Spain. But because the Belgian penal code does not include the crime of "rebellion," Puigdemont only faced extradition based on the misuse of public funds -- and he could only have been charged on that count in Spain.

Because of that limitation, however, the judge in the case ruled that it represented unequal treatment relative to the defendants in Spain and he suspended the European arrest warrant. Then, in late March, the same judge presented the 69-page indictment of the Catalonian politician and reactivated the European arrest warrant.

Puigdemont was unhindered on his drive through Sweden and Denmark and continued into Germany. The Federal Criminal Police Office (BKA) had learned on Saturday that Puigdemont was on his way into the country. A Spanish liaison officer working for the BKA had told his German colleagues that Puigdemont could be expected to cross into Germany from Denmark on Sunday morning, "but not before 10 a.m.," according to a written message from the Spanish Interior Ministry. The document noted that the investigation was being led jointly by the Spanish national police force and the Spanish secret service agency CNI.

According to Spanish newspapers, 12 CNI agents and 10 police officers from a special unit had been tasked with pursuing the former president of Catalonia during his trip. They located Puigdemont using the GPS signal from a device affixed to his car and the mobile phone of one of his companions.

The BKA sent the information to the German Federal Police and to the State Criminal Police Office of Schleswig-Holstein. At 11:38 p.m. on Saturday, the BKA likewise sent an email to the Interior Ministry, the Justice Ministry and the Federal Office of Justice to inform them of the reactivated arrest warrant. There was apparently no further discussion regarding how to proceed.

The ministries responsible, one official says, had already examined the first arrest warrant issued against Puigdemont and determined that there was nothing standing in the way of his arrest in Germany. Because nothing had happened to change this viewpoint, the official notes, there had been no need to discuss the reactivated arrest warrant. The result was that the Justice Ministry, which is central to extradition proceedings, was not made aware that Puigdemont was on his way to Germany.

The Government's Reticence

On Sunday morning, state police officers stationed themselves along routes that could be used to cross into Germany from Denmark. One of them leads along the highway A7 and crosses the border at Ellund and the other is on federal highway 200. Shortly after 11 a.m., traffic police on the A7 intercepted Puigdemont's vehicle and he was arrested at a rest stop about 30 kilometers into Germany. His four companions were set free, including his friend and financer Josep Maria Matamala, who is a Catalonian businessman, and a historian from Barcelona. At 12:23 p.m., the Interior Ministry informed the Justice Ministry of the arrest.

Alarmed by the news, Justice Minister Katarina Barley, Foreign Minister Heiko Maas, Chancellery Chief of Staff Helge Braun and Interior Ministry State Secretary Hans-Georg Engelke spoke on the phone on Sunday evening and quickly agreed that there should be no political interference. None of the ministries involved, say sources, voiced concerns or criticism of the decision. Apparently, the primary focus of the discussion was how best to communicate the government's reticence.

"It is important and correct that politicians do not interfere in judicial proceedings," said Günter Krings, parliamentary state secretary in the Interior Ministry. "The scandal is not the arrest of Puigdemont in Germany, but the failure of officials in Finland and Denmark to take action." The opposition in German parliament holds a different view, criticizing the government's "proactive solidarity with the position of Prime Minister Rajoy," as Andrej Hunko, a parliamentarian with the Left Party, put it. "The tight bond with Madrid and the distanced if not hostile view of the independence movement seems to me to be a constant of Germany's policy toward Spain, and it is one I disagree with."

Green Party parliamentarian Franziska Brantner likewise believes that the German government's apparently unconditional solidarity with Rajoy "isn't helpful in the long term." It must be realized, she said, that such a position isn't worthy of the situation.

The government in Madrid is pleased that Puigdemont was arrested in Germany and says cooperation between security officials has been "excellent." It is also possible, however, that Puigdemont expected to be taken into custody in Germany. He at least should have known that his movements were being monitored. One member of his security team, after all, found a GPS device affixed to his car two months ago.

A Martyr to the Cause

Since his flight from Spain, Puigdemont has said on several occasions that he intends to "internationalize" the fight for Catalonian independence. But in his exile in the Belgian city of Waterloo, the global spotlight had long since shifted away from him. In response, he began traveling more despite the risk -- to Copenhagen and Geneva, for example. Now that he has been arrested, he can pose as a martyr to the cause. Tens of thousands of protesters have since taken to the streets in Catalonia to demand his release.

Whether the protests now escalate depends in part on Germany. The court in Schleswig-Holstein will rule on whether an extradition is admissible. To do so, the court will examine whether the two counts listed in the 19-page European arrest warrant -- rebellion and the misuse of public funds -- are consistent with crimes outlined in the German penal code. Extradition is permissible only if at least one violation is also punishable by German law. And Spain would only be allowed to prosecute those violations that fulfill the grounds for extradition. There are 32 categories of particularly violent crimes that are viewed as exceptions to this rule.

The arrest warrant for Puigdemont, which DER SPIEGEL has obtained, includes acts of violence against police officers prior to and on the day the referendum was held in Catalonia. Police vehicles were surrounded, the document notes, and officers were prevented from carrying out searches and detentions. Several police officers were injured.

According to the document, though, while Puigdemont had expected that such violence might occur, he did not call for violence. "It is clear that this does not constitute a German criminal offense," says Michael Rosenthal, a defense attorney based in Karlsruhe.

Cologne-based extradition expert Nikolaos Gazeas also says that there are "significant doubts," even according to Spanish law, as to whether "the crime of rebellion was fulfilled in the Puigdemont case." And those doubts are even graver when it comes to the equivalent crime in Germany, called "high treason." Thomas Fischer, former head judge at the Federal Court of Justice, says: "It does not immediately suggest itself that Mr. Puigdemont intended to destabilize Spain with instruments of violence."

A Political Background

But even if the court were to conclude that the offenses were comparable, it could rule that Puigdemont is being "politically persecuted," a finding that would make extradition impermissible. After the Tuesday recommendation by public prosecutors in Schleswig-Holstein that Puigdemont be extradited, it is now up to the court to decide -- and it seems possible that the judges, too, will shy away from such a ruling. Which would leave the Catalonian leader only one possibility: a petition to Germany's Constitutional Court. Because the extradition request has a political background, says Frank Schorkopf, a European and international law professor at the University of Göttingen, there are "certainly possibilities for the Constitutional Court to make special distinctions."

The lawyer Wolfgang Schomburg, who is representing Puigdemont together with his son Sören, believes the arrest warrant is "indefinite," in part because Spanish authorities also included a charge of corruption "without elucidating the accusation with a single word." He also says the justification for the accusation of "misuse of public funds" is weak.

It remains to be seen how exactly the German government will position itself, if it chooses to break with its current passivity, that is. Either way, though, German authorities wouldn't be forced to actually deliver Puigdemont to their Spanish counterparts should the courts ultimately rule in favor of his extradition. According to the law, Spain would have to come to pick him up.

By Melanie Amann, Annette Bruhns, Jörg Diehl, Dietmar Hipp, Christiane Hoffmann, Martin Knobbe, Andreas Ulrich and Helene Zuber

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