October 31, 2017
Puigdemont's flight of fancy
The big news of the day is that Carles Puigdemont has absconded to Brussels with five other members of his government in one of the most extraordinary political developments in modern European history.
We think this Tintin spoof says it all, via @cathallittle:
The extraordinary events follow the decision by Spanish state prosecutor to indict the whole regional government and the board of the Catalan parliament for crimes ranging from misuse of public funds to rebellion. The question yesterday after the news broke was whether he was asking for asylum in Belgium. From what we understand this is an unlikely scenario. More likely we are talking about blocking extradition. He has also called a press conference at an undisclosed location near Brussels at 12.30pm local time, today. Is he preparing a government in exile? A spokeswoman for Puigdemont’s Catalan Democratic party (PDeCat) insinuated this by referring to Josep Tarradellas, the Catalan leader who lived in exile in France during the Franco dictatorship. All balls are still in the air.
The only fact we know at this moment in time is that Puigdemont is now the client of the controversial lawyer Paul Bekaert, a man who in the last decades has defended several members of the terrorist group ETA residing in Belgium, to prevent their extradition.
Though he told the press that there is no dossier yet for him to work on, he told El Mundo that European legislation, which eliminated asylum for citizens of another EU Member State, does not matter too much: "The Treaty of Amsterdam eliminated political asylum, but Belgium has not accepted it, everyone here can ask for it, I have done it in the past for three Spaniards." This still does not mean that Puigdemont will or can go down this route. Even if it is theoretically possible, it never happened in the last 10 years. Not only would the Belgian courts have to conclude that there are serious signs of persecution, but also that Puigdemont cannot obtain protection in Spain. This would be a serious allegation against another member state, ultimately incompatible with Schengen and the EU treaties.
As FAZ noted in a legal opinion, an exception would only be considered if an EU member state decided to suspend the European Convention on Human Rights, or if a country were accused of undermining the democratic order. Neither is the case here. In the unlikely case that Puigdemont asks for asylum, his application would be dealt with within five days. He would then have 30 days to appeal, but the appeal court would only consider procedural issues - whether the actual case was correctly handled formally. It would not reopen the case itself. That's the end of the process. Belgium has no provision for a political override.
The legally more realistic scenario for Puigdemont is to prevent extradition. For this the Spanish would have first to request extradition of the Catalan prime minister with a arrest warrant. A first-instance court would then decide on the conditions of the extradition, according to an extradition procedure that relies mainly on case law. If then Puigdemont were to object to his extradition, the Belgian justice minister would decide on the extradition based on the advice of the court of appeal. Even if the extradition is granted at this stage, an appeal against the order can be logded within 60 days from the date of its notification. It is also our understanding that there are further time delays for the execution of the sentence, of up to ten years, that can possibly be prolonged. The two key factors to take away from this procedure is that there is a political element and a long time frame. And this may be what Puigdemont needs. But imagine for a moment the consequences of a decision by the Belgian government to grant Puigdemont asylum - as the immigration minister Theo Francken suggested was not impossible - or at least not to extradite him. This would trigger a diplomatic crisis between Belgium and Spain, and by extension within the EU. Would Spain not close down its borders to Belgians?
The reaction in Catalonia and Spain has been one of shock and more amusement than worry. It will be important to watch out for the potential effect of Puigdemont's move on the separatist movement. Fleeing prosecution goes against the epic of resistance, but on the other hand some of Puigdemont's political associates are beginning to refer to him as the Catalan president-in-exile as we noted above. The separatist grass-roots are highly susceptible to the idea that there is no hope of a fair trial under Spain's justice system, which will help the separatist parties sustain the narrative of confrontation, even as they prepare to participate in the regional elections called by Mariano Rajoy for December 21. The only separatist party that is likely to sit the elections out is the radical left CUP, a municipalist party that may be more interested in moving on to a strategy of civil disobedience.
The immediate effect of Puigdemont's action may be to harden the precautionary measures likely to be imposed by the judges in charge of investigating the indictments of Catalan officials. "Risk of flight" is a major condition for pre-emptive imprisonment pending trial. In this connection we note that the grass-roots leaders Jordi Sánchez and Jordi Cuixart are as we speak appealing against their pre-emptive imprisonment on sedition charges. At his press conference today Puigdemont has the opportunity to destroy the two Jordis' chances of release. Their reaction, and that of their organisations ANC and Ómnium, will be important to watch in the coming days.