Brussels shuts the door. To be more precise, Brussels public prosecutors have shut the door on delivering ministers Comín, Serret and Puig to Spanish justice.
In a filing in perfect Spanish, clear and didactic, far from the twisting baroque prose normal from Iberian law, which the Supreme Court cultivates with special zeal (as if there were a Nobel Prize for Legal Literature, often unintelligible), Brussels' prosecutors have postulated before the competent court of the Kingdom of the Belgians that it cannot enforce the European Arrest Warrant issued by the Supreme Court investigating judge.
The reason: it doesn't correspond with the applicable law. Or equivalently, said with all the professional courtesy you want: the request from the legal body, which sits in Madrid's Las Salesas neighbourhood, doesn't match the legal requirements of the European Arrest Warrant.
It's not, in my opinion, as, with certain precipitance, some have said, about a technical error. We're facing a lack of procedural substance which, although it could have been corrected, hasn't been, despite the requests for more details to the effect from Belgian prosecutors. Prosecutors who, as often happens in comparative law, have a dependence on the government, a limited one, but a dependence in the end all the same.
What's happened for the relevant prosecutors to say they cannot support the Spanish request? Well, something very simple: the European Arrest Warrant, as has been stated more than enough by European justice, the Court of Justice of the EU in Luxembourg, isn't an independent order, rather the execution of an arrest warrant which already exists in the country of origin. It's necessary, in short, to have issued a prior national arrest warrant and then issue, if necessary, as an extension, a European Arrest Warrant.
We're facing a lack of procedural substance which, although it could have been corrected, hasn't been
Here's the story:
1) The judge of the National Audience's court of instruction nº 3 issued a European Arrest Warrant against, amongst others, those now in exile in Brussels, dated 3rd November 2017, an order based on five charges. This order was withdrawn by the investigating judge of the Supreme Court on 5th December. On 23rd March just gone, the pre-trial proceedings concluded with the indictments, the European Arrest Warrant was reactivated, but now for only three charges. However, its factual substrate is broader than the previous one and with varied legal particulars, in other words, a new European Arrest Warrant was issued.
2) Following case-law from Luxembourg, the European arrest warrant isn't an independent legal measure, but requires the prior existence of an arrest warrant in the requesting country. In other words, as emphasised by the Belgian prosecutors, if there's no prior national arrest warrant, in this case in Spain, the European Arrest Warrant is based on nothing.
3) Belgian prosecutors laid bare this absence to the Supreme Court investigating judge and this, in short, notes that the facts and particulars are different to those established by the National Audience and that the new state of the matter is found in the indictment.
So far so good with the chain of procedural events. Given this, the Brussels prosecutors see no reason to proceed with the extradition, because there's no prior Spanish arrest warrant issued by the Supreme Court investigating judge.
The freedom of people subjected to a criminal procedure has to be guaranteed to the smallest detail, no ifs or buts
Why did the investigating judge have to issue one? The reason is very simple: the arrest warrant (and subsequent European Arrest Warrant from the National Audience) was for five charges and some particular facts. The European Arrest Warrant, secondly, is withdrawn. Thirdly, the indictment is for three charges: against two ministers for disobedience and misuse of public funds and against a third for misuse of public funds and rebellion; nothing to do with the facts, accusations and particulars of the National Audience.
Finally, the investigating judge of the Supreme Court responds to the Belgian court that the indictment is valid as an arrest warrant which, obviously, is neither true, nor accepted by Brussels. Prosecutors from the capital of Europe conclude: "Given the absence of corresponding national Spanish arrest warrants, the prosecution has asked the court to declare the three European Arrest Warrants irregular. (...) The delivery procedure has since been declared unfounded".
Through ignorance or arrogance, Spanish justice has lost a decisive battle on the European front which, undoubtedly, will have repercussions for the extraditions pending in Scotland, Germany and Switzerland..
Moreover, an important event for the European project has taken place: the freedom of people subjected to a criminal procedure has to be guaranteed to the smallest detail, no ifs or buts. Without personal liberty in the face of the punitive power of the state, there's no public liberty. This is a lesson which the public powers have to learn and practice as if their lives depended on it. We have to, however, ask ourselves why they haven't done so yet if we share, as Europeans, the same basic legal framework.
This basic legal framework doesn't allow for defects, nor exceptions, nor eccentricities like pursuing citizens for crimes which only exist in the mind of their pursuers. Pursuers, yes, equipped with power. However, it's doubtful that the pursuing powers will draw the clear democratic and legal consequences from the day.
Brussels, once again, is the Grand Place of Europe.