On the eve of the fourth anniversary of the Catalan independence referendum of 1st October, and a week after the arrest of Carles Puigdemont in L'Alguer, Spanish investigating judge Pablo Llarena has made a move. Although he had already addressed a communication to the Sardinian court last week, today he sent a second letter to Italy stating that the European Arrest Warrant (EAW) against Puigdemont is still in force and has not been suspended due to the preliminary questions he raised. Llarena has sent all the additional information to the Eurojust agency to clarify the status of the case and demand the handover of the MEP and former Catalan president to Spanish justice.
Llarena asserts that the EAW is in force, that he never revoked it and that it was the Spanish state solicitors that caused the confusion, thus blaming the judicial body that represents the Spanish government in the case.
The Supreme Court judge asked in his letter to the Spanish representative on Eurojust to convey to the Court of Appeal of Sassari (Italy) the decision in which he ruled in favour of provisional imprisonment for the former Catalan president and on which the EAW against the ex-president, issued on 14th October, 2019, is based. In the document, judge Llarena expands on the information relating to Puigdemont's request for extradition, stressing that the Catalan politician does not currently have parliamentary immunity as an MEP, in addition to the fact that the EAW is still in force and that it was not suspended by the raising of his preliminary question to the EU Court of Justice (CJEU). The document concludes by requesting the Italian judicial authorities to immediately hand Puigdemont over to Spanish jurisdiction, in order to be able to continue the prosecution of his case.
In addition, the judge asks that, in the event that Puigdemont were to demand the interim recovery of his immunity before the European court and this was granted, the Italian judicial authority should then suspend the processing of the extradition process now underway, but "taking the necessary measures to ensure that the material conditions necessary for effective handover continue to be apply when Carles Puigdemont ceases to be protected by privilege or immunity (Article 20 of the EU Framework Decision)".
In the event that the waiver of immunity is maintained, and only in the event that the Italian court rules that the answering of the preliminary question may affect its decision, Llarena points to the possibility of the Italian judicial authority paralyzing the proceedings for execution of the EAW until the CJEU rules, underlining that this is the position being followed by Belgium. These requests are based on a document in which he recounts all the steps that have taken place since the issuing of the European Arrest Warrant against Carles Puigdemont on October 14th, 2019.
The preliminary question doesn't suspend the EAW, says Llarena
Pablo Llarena strives to explain why the preliminary question he put does not suspend the EAW or the order for preventative prison. In the first place, the judge states that the CJUE's recommendations to national courts concerning the preliminary questions state in paragraph 25 that the reference for a preliminary question entails the suspension of national proceedings until the European court has given its decision. But he stresses that this same recommendation adds that "the adoption of interim measures is not subject to the regime of mandatory suspension. For interim decisions, point 25 indicates that it will be limited by what the national court decides."
He also states that the Puigdemont imprisonment order, which was adopted in this procedure on October 14th, 2019, as well as the consequent European Arrest Warrant, "have an indisputably interim nature. These are decisions whose purpose is to put the fugitive at the disposition of justice and allow a trial to begin that - up till now - has been prevented by his flight." And with regard to this end of ensuring the processing of the case, he states that since the presentation of the preliminary question "he has not issued any decision to modify or suspend the interim measure."
Puigdemont's immunity
The Spanish judge's document states that Puigdemont was accredited as a member of the European Parliament on January 6th, 2020, acquiring the immunity and other privileges established by Article 9 of the Protocol of the Union. On January 10th that year, judge Llarena, as investigating judge of the case, asked the European Parliament to suspend the president's immunity from prosecution.
During the parliamentary processing of this request, since Puigdemont held immunity, the Belgian judicial authorities were informed of the privileged position he enjoyed, and the procedure for the execution of the EAW was suspended in the terms imposed by article 20 of the Framework Decision. On March 8th, 2021, the European Parliament voted to suspend Puigdemont's immunity and, after this decision was communicated to judge Llarena, he informed Belgian justice of the withdrawal of the immunity, so that the extradition procedure suspended due to this case (article 20 of the FM) could be resumed.
The preliminary question
The judge does not skip the details of the proceedings which were followed in Belgium regarding the EAWs issued against Carles Puigdemont, Toni Comín and Lluís Puig, on March 9th, 2021, when he raised the preliminary question, and he asserts that this question "does not affect the validity of the interim imprisonment measure or the search and arrest order. It refers to the interpretation of Union law regarding certain aspects due to which judicial cooperation between Member States could be refused."
Llarena recalls that the Belgian judicial authority for execution agreed to paralyze and suspend the extradition procedures that were underway in that country and to do so until the CJEU decided the interpretation of Union law to be followed on these issues.
The EGC's intervention
Against the European Parliament's decision to withdraw Pugidemont's immunity, the Catalan politician filed a suit before the EU General Court (EGC). Llarena notes that in this procedure the plaintiffs are Carles Puigdemont, along with Toni Comín and Clara Ponsatí. In this procedure, on 30th July 2021, the vice president of the EGC issued an order rejecting Puigdemont's request for interim suspension of the European Parliament's decision to waive his immunity until a substantive decision is made. Due to this, the judge summarizes, Puigdemont remains without immunity, unless he again asks the EGC for an interim concession and it is granted; a possibility that the EGC admits as procedurally viable.
The EAW was never suspended
Llarena's submission adds that "in the proceedings before the CJEU, as stated in the resolution, the Spanish state solicitors informed the court that the EAWs issued by this judge were suspended. As has been stated, this is not the case. The decision to suspend a interim measure that has been enforceable since 2019 is a decision that depends on this judge (Recommendation 25) and has never been taken."
He asserts that, to the Spanish government's solicitors, this situation "should not be unknown", since "it is part of the criminal proceedings that are being pursued before the Spanish Supreme Court. As stated in point 5, there has never been a notification to the Spanish state solicitors of a possible decision to suspend the EAWs, nor have the state solicitors proposed that such a decision be taken."
According to judge Llarena, in the proceedings before the EGC, the Spanish Supreme Court has no status to intervene, unlike the Spanish state solicitors, as "the Kingdom of Spain is a coadjuvant party to the European Parliament in this process". The judge cites the information provided by the state solicitors and explains to the Italian judicial authority that "this mismatch of information could explain the inaccuracy on the validity of the EAWs which appears in a part of the EGC resolution of the July 30th, as it was unable to provide the information on the resolution from the judicial authority responsible for deciding on the continuity of the interim measures".