The decision by the higher regional court of Schleswig-Holstein to extradite president Carles Puigdemont for misuse of public funds alone is a very hard blow to judge Pablo Llarena's strategy and, by extension, to the strategy of the Second (Penal) Chamber of the Spanish Supreme Court, chaired by judge Manuel Marchena, and to the strategy of the political and media troupe who have accompanied him. It won't be possible to put Puigdemont on trial for rebellion. It's the worst news for Llarena, since all his decisions (confirmed by his Second Chamber colleagues on appeal) have pointed in the same direction: there was violence during last year's Catalan referendum and, as such, a rebellion, planned by the Catalan government, Parliament, "civil society" and "advisers and ideologues" - a "criminal organisation", according to the judge.
As it happens, the first decision Llarena himself took in the case, after it was transferred from the National Audience court on 24th November 2017, was to withdraw the European Arrest Warrant (EAW) in Belgium against Belgium and the ministers in exile brought by National Audience judge Carmen Lamela. He'd taken on the case just ten days earlier. Llarena exposed himself to continental ridicule for a single reason: he was afraid that Belgian justice wouldn't accept the charge of rebellion and he wanted to keep alive the possibility of trying Puigdemont, eight ministers, the Parliament's speaker and the 'Jordis' for the crime. He wanted to maintain the narrative put together by judge Lamela with the reports from the Civil Guard and the Spanish police.
It's been two days since the judge closed the investigation, constructed around the story of rebellion, the story spread, in precise synchronicity, by the majority of Spanish politicians and media since forever. The German court has knocked it down like a house of cards.
The nightmare
Llarena (and his chamber of the Supreme Court) are thus facing their nightmare, the great fear that showed through in the order withdrawing the EAWs: that some of those accused in their investigation (the exiles) might not be tried for the same charges as the rest (the prisoners). They were especially scared that rebellion would be discounted.
This charge is the heart of the general case against the independence movement. As well as Puigdemont, it's been brought against Oriol Junqueras, Joaquim Forn, Jordi Turull, Raül Romeva, Dolors Bassa, Josep Rull, Carme Forcadell, Jordi Sànchez, Jordi Cuixart (all in pretrial detention); Toni Comín, Clara Ponsatí and Marta Rovira (in exile in Belgium, Scotland and Switzerland, respectively).
In the EAW ruling, Llarena described (in the conditional - grammatically hedging his bets) the rebellion as a "crime with multiple subjects", in other words, a single crime committed by various people who had shared out roles, which would make it advisable to try all those who took part at the same time, not just some of them. For this reason all the cases were brought together in a single one. If the extradition were to come accompanied by a ban on trying them for rebellion, it would negatively affect the whole case, according to the judge.
He argued: "After issuing the arrest warrants... it has been determined that the events could have been perpetrated with the agreement of all those under investigation and with an inseparable legal unity, that is, that the refinement of the different criminal liabilities has to be done together, because otherwise it could shatter the restraint of the case and lead the process to contradictory and divergent responses for the different participants".
The decision from the German court is a direct torpedo against this argument.
"Criminal organisation"
What's more, if there was no rebellion according to the German court, nor was there violence or "criminal organisation" behind it. That complicates the task of justifying the imposition of pretrial detention and gives reasons for those potentially facing it to go into exile.
To show the consequences of prison, it's enough to remember that as many as ten of the thirteen accused of rebellion stood in last year's Catalan election in December and couldn't exercise their political rights normally. This seriously affected the Parliament and the government, since they all won seats and the majority accepted nominations as ministers. Among those affected are three who were nominated as candidates for president.
The Belgian and Scottish judges who have to decide on the other accused will take note of the German decision. Even if any of them do find in favour of extraditing another suspect for rebellion, the fact that they cannot all be tried for the same crimes is already affecting the "unity of the case" Llarena so wants, and his theory of the "crime with multiple subjects".
In the ruling to withdraw the EAWs, Llarena also argued that, if the Belgian judge had allowed the extradition of the exiled Catalan politicians for only some of the crimes, not for all of them, it would have introduced a "substantial distortion" for the others charged "who could be investigated and sent to trial for the charges that the investigating judge is considering, putting them in a worse legal situation than those who have fled".
That is, precisely, what the German court has just done. But not in the way the Spanish judge feared, thinking only about his investigation, rather improving the chances for the rest of those facing charges, giving their defence a high-quality legal argument for the hearings and possible appeals.
A political investigation
From this Thursday on, moreover, anyone can use the resolution from the Schleswig-Holstein court to describe the case headed by Llarena (and Lamela) and the investigative work by the state's security forces which support is as being "political".
In the December ruling, Llarena gave another reason to withdraw the EAW. "Those under investigation seem to have shown their intention to return to Spain, with the aim of taking possession of and exercising positions [they were] elected to in the elections they had recently stood in". As he upheld the Spanish arrest warrant, Llarena was saying that they would be arrested when they returned to Spanish territory to take their posts.
This reason has aged badly. After the result of that election (another, unexpected, pro-independence majority), all Llarena's decisions (and those of the other Spanish courts, including the Constitutional Court) have worked in the same direction: preventing the elected officials under investigation from exercising their political rights, including threatening the Catalan Parliament's governing bureau.
The reason to short-circuit and interfere in the lives of the accused and the Parliament was none other than the seriousness of the charge of rebellion. This all now looks ridiculous, thanks to the higher regional court of Schleswig-Holstein.