April 06, 2018
Schleswig Holstein collapses Spain's strategy against Catalan separatism
In rejecting Spain's extradition request of former Catalan regional premier Carles Puigdemont on charges of rebellion, the higher regional court of the German state of Schleswig Holstein has collapsed the Spanish government's judicial strategy against the Catalan separatist leaders involved in the events of last autumn. The reason is that Puigdemont, if extradited to Spain on the remaining lesser charges of misuse of public funds, could not be tried for rebellion. And it would make no sense to try all the other defendants for rebellion and not their presumed leader. The Spanish prosecutors might still try, but the German court decision goes to the heart of the matter, denying there was violence in the attempt to declare independence of a part of Spain's territory. Now the Catalan political impasse will almost certainly drag out for two months, and then the Catalan parliament will be dissolved in May for repeat regional elections on 5 July, which Puigdemont will again contest.
We should note that the rebellion charge was critical in the Spanish government's judicial strategy. Rebellion is, along with terrorism, the only crime which carries a ban from public office from the moment of indictment, and not on a firm sentence. It was therefore highly utilitarian for the Spanish government that Puigdemont and his associates had been formally charged with rebellion by the Supreme court last month. But now Puigdemont cannot be tried in Spain for rebellion even if he is extradited on lesser charges.
The court of Schleswig Holstein throws out the rebellion case in the strongest possible way, as it actually does not admit the charge of rebellion into consideration. The decision on extradition for misuse of public funds can take up to ninety days including appeals. The German court says that patently there was not violence in Catalonia of the quality required for a German charge of high treason.
"it is not sufficient for the realization of the concept of violence that a perpetrator threatens or uses force in order to induce a constitutional body to act as intended. Rather, it is necessary that the violence exercised on third parties should put such pressure on the constitutional body to bow the contrary will of the constitutional body. That is not the case here."
If the Spanish courts took that view on board, there would be no case for rebellion as regards the other defendants either. Diego López Garrido, the legislator responsible for the introduction of the requirement of violence into the definition of rebellion when Spain reformed its criminal code in 1995, explains the legislators' intent in a short article for Agenda Pública. Many Spanish legal experts, mostly in academia, have vocally disagreed with the way the Spanish Supreme Court magistrate investigating the case has argued that there was violence to justify the charge of rebellion.
The German court also denies that Puigdemont faces political persecution, as the misuse of public funds is a concrete charge punishable under German law and does not involve his political opinions. This is something to keep in mind as the political noise around the case intensifies in the coming months.
Puigdemont will remain in Germany while his extradition case proceeds, as he must appear before the police once a week. But now it is almost certain that the separatist majority in the Catalan parliament will accept the appointment of no other candidate as regional PM. This will force the Spanish constitutional court to make an actual decision on the Spanish government's appeal against the earlier attempt to reappoint Puigdemont. The Spanish court process may prevent Puigdemont from being reinstated, but then the Catalan separatists will happily drag things out for two months until the regional parliament is automatically dissolved for new regional elections.