A. Introduction
Brexit, rising nationalism, the refugee crisis, foreign threats such as terrorism, and the coronavirus pandemic have brought the European Union (EU) to a crossroads. The next few decades will show whether the Member States will, as a result of the prevailing issues, converge and collaborate more closely or whether the already existing rift within the EU will heighten, jeopardizing the EU’s very existence. With respect to judicial cooperation, the millennium started promisingly—given the introduction of an Area of Freedom, Security, and Justice (AFSJ) in the Treaty of Amsterdam in May 1997,Footnote 1 and the establishment of the European Arrest Warrant (EAW) five years later, strengthening the former third pillar.Footnote 2 The EU appeared to be set on its path. Yet, in the past several years, numerous unexpected developments—such as the legislative reforms in Poland’s justice system and nationalist movements in several Member States—have emerged, questioning the image of Europe as the cradle of democracy. In particular, in the course of protests, images portraying the Spanish Prime Minister as a grand inquisitor were rolled out on the streets of Barcelona.Footnote 3 These illustrated, with respect to the EU, the rather unusual case of someone being requested on the grounds of political activity. In light of the above-mentioned case of Puigdemont casting doubt on the EAW’s efficiency, it became apparent that the EAW—previously a shining example of judicial cooperation—had become a cause for considerable headaches.
B. The European Arrest Warrant
I. Implementation into German Law
The general idea of the EAW was first publicly addressed at the Tampere European Council on October 15–16, 1999, with the creation of the Area of Freedom, Security and Justice (AFSJ).Footnote 4 Because traditional forms of judicial cooperation were considered to be insufficient instruments for combatting the increase in cross-border criminality—following the abolition of border checks in 1995, as a result of the 1985 Schengen AgreementFootnote 5—the Council resolved to depart from the traditional extradition towards “a simple transfer of . . . persons [fleeing from justice after having been finally sentenced].”Footnote 6 In addition, the principle of mutual recognition of judicial decisions and judgments was recognized as the “cornerstone of judicial co-operation in . . . criminal matters within the Union.”Footnote 7 Built upon mutual trust and mutual confidence, the concept of mutual recognition of judicial decisions and judgments refers to the recognition and enforcement of one Member State’s decisions by courts of another Member State, which are regarded as being equivalent to one’s own decisions, without further review or recognition proceedings.Footnote 8 As the first concrete measure to implement the principle of mutual recognition of judicial decisions in the EU, the EAW was speedily adopted as a framework decision—pursuant to Article 31(1)(a–b) of the Treaty on the European UnionFootnote 9 (TEU) (old version) in conjunction with Article 34 (2)(b) TEU (old version) by the European Council on June 13, 2002Footnote 10 (EAW Framework Decision)—in the aftermath of the 9/11 attacks in the United States.Footnote 11 Aimed at simplifying and accelerating the lengthy extradition procedures within the EU, the EAW was designed to enhance and render more effective cooperation in criminal matters.Footnote 12 Pursuant to Article 1(1) of the EAW Framework Decision, an EAW constitutes a judicial decision issued by a Member State with a view to arrest and surrender by another Member State a requested person, for the purposes of conducting a criminal prosecution, or executing a custodial sentence or detention order. In accordance with Article 2(1) of the EAW Framework Decision, its scope encompasses acts punishable by the law of the issuing Member State with a custodial sentence or a detention order for a maximum period of at least twelve months or—where a sentence has been passed or a detention order has been made—for sentences of at least four months.
Due to its adoption as a framework decision, the EAW required implementation into national legislation.Footnote 13 Germany complied with this obligation through the enactment of the Europäisches Haftbefehlsgesetz Footnote 14 (EuHbG) in 2004, which was held to be unconstitutional by the German Federal Constitutional Court and, therefore, was readopted in 2006, following a modification to the offending provisions.Footnote 15 The EuHbG 2006Footnote 16 does not constitute an autonomous act, but rather complements the already existing Act on International Cooperation in Criminal Matters of 1982Footnote 17 (Gesetz über die internationale Rechtshilfe in Strafsachen; IRG) by incorporating §§ 78 et seq. as a new Part VIII.Footnote 18
Replacing all previous extradition agreements between EU Member States, the EAW Framework Decision deviates from the traditional system of extradition by abolishing its two-stage structure—comprised of a judicial decision, and a governmental, and thus political, decision. Henceforth it solely requires a judicial procedure.Footnote 19 Apart from maintaining the requirement of a granting procedure, the German EuHbG continues to apply the traditional terms of “extradition” (Auslieferung), “requesting state” (ersuchender Staat), and “requested state” (ersuchter Staat)—instead of the newly introduced terms of “surrender” (Übergabe), “issuing state” (Ausstellungsstaat), and “executing state” (Vollstreckungsstaat).Footnote 20 In addition to the simplified extradition procedure, the double criminality requirement—see below at Subsection C(I)(1.1)—is subject to restrictions, as it is not verified with regard to thirty-two categories of offenses listed in Article 2(2) of the EAW Framework Decision, provided that these offenses are punishable in the issuing Member State by a custodial sentence or a detention order of a maximum period of at least three years.Footnote 21 Likewise, the potential grounds for refusal of execution are limited and exhaustively listed in Articles 3, 4, and 4(a) of the EAW Framework Decision.Footnote 22 The sole mandatory grounds for the non-execution of an EAW are amnesty, the principle of ne bis in idem, and the age of the requested person—that is, minors.Footnote 23
II. A Successful Instrument of Cross-border Judicial Cooperation
Despite initial skepticism towards the establishment of the EAWFootnote 24—as well as the more recent issues of, for instance, the surrender of a Member State’s own nationalsFootnote 25 or decisions in absentiaFootnote 26—the EAW has, to date, proven to be successful in the vast majority of cases. Statistics show the issuance of 133,977 EAWs in total, from 2005 to 2015, of which 37,139 were executed.Footnote 27 In particular, with regard to offenses such as theft and corruption—the most common categories of offenses for which EAWs were issuedFootnote 28—as well as serious crimes that are commonly recognized throughout Europe, the EAW has justified its existence because such offenses require effective judicial cooperation.Footnote 29 The EAW’s stringent, absolute maximum ninety-day time limit has resulted in a significant acceleration of the previously lengthy extradition process—which, nowadays, lasts a mere forty-three days on average, as opposed to more than a year prior to the EAW’s adoption.Footnote 30 Compared to the previous provisions, the EAW contributes to a more effective attack on cross-border criminality and harmonizes the extradition process.Footnote 31
III. The European Arrest Warrant in Light of the Puigdemont Case
Notwithstanding its overall success, the EAW's approach to extraditions for political offenses appears highly problematic in light of the recent case of the former Catalan President, Carles Puigdemont. As one of seventeen semi-autonomous regions in Spain, Catalonia is known for its pronounced regionalism, which stretches back more than 300 years and has fostered a strong independence movement.Footnote 32 Against this background, an independence referendum—led by Puigdemont—was conducted on October 1, 2017, with a reported turnout of approximately 43% and a result of 90% in favor of independence.Footnote 33 The referendum was declared unconstitutional and therefore rendered void by the Spanish Federal Constitutional Court, as the Spanish Constitution does not provide for referenda on the independence of a semi-autonomous region.Footnote 34 Upon Catalonia's declaration of independence on October 27, 2017, the Spanish government dissolved the Catalan parliament and announced new elections—applying Article 155 of the Spanish ConstitutionFootnote 35 for the first time since it had come into force.Footnote 36 This provision enables the Spanish parliament to deprive a region of its autonomous rights.Footnote 37 As a result of the charges of rebellion, sedition, and misuse of public funds proffered against Puigdemont and several members of his deposed cabinet on October 30, 2017, Puigdemont fled to Belgium to avoid arrest.Footnote 38 Consequently, an EAW was issued on November 2, 2017 but withdrawn approximately a month later due to a discrepancy between Spanish and Belgian law which might have restricted the extradition charges and, therefore, may have led to different charges compared to those the other leaders of the independence movement—who were on trial in Spain—were to face.Footnote 39 Nevertheless, after the EAW was reactivated on March 23, 2017, Puigdemont was detained near Schleswig, Germany two days later, on his return from Finland to Belgium.Footnote 40
C. Decisions of the OLG Schleswig-Holstein
I. Decision of April 5, 2018
On April 5, 2018, the First Senate for Criminal Matters of the Higher Regional Court of Schleswig-Holstein (Oberlandesgericht Schleswig-Holstein; OLG) passed its first decision concerning Puigdemont’s extradition to Spain. Footnote 41 Summarily, the court ordered extradition detention—pursuant to §§ 15(1) No. 1 and 17(1) IRG—but stayed the execution of the extradition arrest warrant under certain conditions, in accordance with § 25(2) IRG and in conjunction with § 116(1) s. 2 No. 4 of the German Code of Criminal Procedure (Strafprozessordnung; StPO),Footnote 42 ordering a release on bail set at €75,000. The judges held that a surrender of the requested person for the crime of rebellionFootnote 43 under the EAW was inadmissible ab initio and thus did not constitute grounds for extradition detention pursuant to § 15(2) IRG.Footnote 44 Contrarily, the extradition for corruption—more specifically, the embezzlement of public funds, was not declared inadmissible ab initio, but was subjected to further review by the OLG due to the insufficiency of the information submitted by the Spanish authorities in accordance with § 83a(1) No. 5 IRG.Footnote 45
II. Decision of July 12, 2018
On July 12, 2018, the OLG rendered its second—and final—decision in the matter,Footnote 46 notably, after failing to meet the deadline of sixty days set by Article 17(3) of the EAW Framework Decision and § 83c(1) IRG. In the following sections, further explanations, concretizations, and elaborations—regarding 1) the refusal to surrender for the offense of rebellion and 2) the Court’s ultimate decision concerning a surrender for the offense of corruption, contained in its decision of July 12, 2018—will be addressed, with a stronger focus on the legal and factual issues pertaining to the charge of rebellion and its “political” character.
1. Surrender for Rebellion
First, the OLG upheld its decision of April 5, 2018 with respect to the offense of rebellion, denying Puigdemont’s surrender to Spain.
1.1 Verification of Double Criminality
The ruling commences with an extensive assessment of the double criminality of the underlying acts. This requirement—an exception to the general rule of mutual recognitionFootnote 47—provides that the requested state only extradite if the underlying offense is penalized under the law of both the requesting state and the requested state, and has long been a key feature of international extradition law.Footnote 48 With the EAW Framework Decision, the EU Member States decided to partially substitute this system—traditionally based on the reciprocity of criminalized behaviorFootnote 49—by introducing a “softened double criminality requirement.”Footnote 50
Rebellion, as referred to under the EAW in question—or, for that matter, similar offenses such as treason and sedition—is not listed under Article 2(2) of the EAW Framework Decision. Pursuant to Articles 2(4) and 4(1) of the EAW Framework Decision, and in conjunction with § 81 No. 4 IRG, the lack of double criminality is considered a ground for optional non-execution of the EAW.Footnote 51 In the present case, the OLG argued that in accordance with § 3(1) IRG, an extradition may be deemed admissible only if the act the requested person is accused of constitutes mutatis mutandis, an offense under German law,Footnote 52 otherwise compelling the executing judicial authority to refuse the execution of an EAW.Footnote 53 Therefore, the case is assessed as if it had occurred in Germany, the offender was a German citizen, and German institutions had been parties to the case. The defendant’s conduct would not be penalized under German law, so the case is reviewed as if the president of a German federal state (Bundesland) had attempted a secession.Footnote 54 Intending to extensively assess all legal norms possibly applicable to the case,Footnote 55 the OLG restricted its review to two legal norms contained within the German Criminal Code (Strafgesetzbuch; StGB): 1) Hochverrat gegen den Bund (High treason against Federation) pursuant to § 81 (1) StGB and, 2) Landfriedensbruch (Breach of Peace) in accordance with § 125(1) StGB.Footnote 56
1.2 High Treason Against Federation
With respect to § 81(1) StGB, the OLG Schleswig-Holstein largely refers to its first decision and a judgment passed by the German Federal Court of Justice (Bundesgerichtshof; BGH) concerning violent protests accompanying the plans for an airport expansion in Frankfurt-am-Main—the “Startbahn West” case.Footnote 57
In order to assume criminal liability, pursuant to § 81(1) StGB, the accused must have undertaken to undermine the continued existence of the Federal Republic of Germany—No. 1—or to change the constitutional order based on the Basic Law (Grundgesetz; GG) of the Federal Republic of Germany—No. 2. Both the German regulation and the provision of “rebellion”—pursuant to Article 472 No. 5, 7 Spanish Penal Code (Codigo Penal), as adduced by the Tribunal Supremo—provide that the perpetrator has undertaken the alleged acts “by force” (“violentamente”), albeit that in the present case, the accused had attempted to legitimize the secession of Catalonia by democratic means, namely via a referendum.
According to the OLG, the force used during this event had, in any case, not attained the requisite dimension for culpability—pursuant to both § 81(1) StGB and Article 472 Codigo Penal.Footnote 58 Under German criminal law, § 81(1) StGB postulates a qualified level of force which, with respect to its intended effect, is adequate to coerce the state into agreeing to the demands of the perpetrators. As the OLG had already elaborated upon, in its decision of April 5, 2018, the terminology of § 81(1) StGB is determined in the same way as § 105 StGB—blackmailing constitutional organs (Nötigung von Verfassungsorganen)—a regulation applied in the aforementioned judgment passed by the BGH.Footnote 59
This heightened requirement, with respect to the degree of force used, is justified by the OLG as follows: First, in a democratic constitutional and political order, criminal law is obliged to be used restrictively with regard to political conflicts. Second, the state—as the target of force, with its administrative body of institutions—is comparably less easily affected and influenced by the use or threat of force than an individual.Footnote 60
High treason is considered an “undertaking” (Unternehmen)—pursuant to § 11(1) No. 6 StGB—and therefore, the acts committed by the accused do not actually have to succeed for culpability to arise in accordance with § 81(1) StGB, bringing about a propensity towards prematurely criminalizing public discourse. The force used must indeed be sufficient for the perpetrator to succeed in compelling the constitutional organs to yield to his demands. A positive finding by the Court with respect to this qualification is a prerequisite for culpability, pursuant to § 81(1) StGB. As a preliminary question, a normative evaluation of whether the force could potentially succeed must be undertaken (normative Tatbestandsvoraussetzung).Footnote 61
The OLG held that the constitutional order of the Spanish State did not appear unduly distraught by the isolated incidents, which occurred in front of 17 out of 2,259 polling stations on the day of the referendum—October 1, 2017. The Court was unaware of any rioting, arson, or similar criminal actions which could have led to a violent overthrowing of the Spanish government. According to the supplementary information submitted by the Spanish authorities on April 26, 2018, a rampage had indeed been caused by, inter alia, large-scale demonstrations and blockages of road and rail traffic. Nevertheless, without any direct temporal or causal correlation to the referendum itself, this was not sufficient to prove the personal criminal liability of Puigdemont. Neither the alleged instructions directed towards the regional police, with the order to secure the referendum but without containing any orders to attack the national police or Guardia Civil, nor the supposedly superior numbers of the regional police officers in comparison to the national policeFootnote 62 are indicative of Puidgemont’s culpability. Ultimately, the fact that the referendum—according to the perception of the accused—would not have directly led to the secession of Catalonia from Spain, but merely may have been a prelude to negotiations between both parties, also supports the Court’s decision to reject the existence of double criminality pursuant to § 81(1) StGB.
1.3 Breach of Peace
Second, the court scrutinized whether the alleged acts constituted a breach of peace pursuant to § 125(1) StGB.Footnote 63 Considering that Puigdemont was not present at the public displays of violence surrounding the referendum, the OLG examined whether he could be deemed responsible as a “spiritual leader.” Following the jurisdiction of the BGH, a person may be convicted of breach of peace as a joint offender in accordance with § 25(2) StGB—even if they are not present at the location—as long as the force used against other persons or objects can be attributed to them in accordance with the general principles of the StGB.Footnote 64 This “spiritual leader” doctrine, however, has been subject to criticism and remains controversial with respect to the requirements for participation, pursuant to § 125(1) StGB.Footnote 65 The letter of the law here is unclear and vague, resulting in both the need for interpretation by the courts and the risk of violating the rule of law.Footnote 66 In the aftermath of the BGH decision, the respective case was even brought before the Federal Constitutional Court (Bundesverfassungsgericht; BVerfG). Notably, the court only dismissed the case with respect to violations of the appellant’s freedom of expression and freedom of assembly—pursuant to Articles 5(1) s. 1 and 8(1) GG—following an evenly split vote.Footnote 67
In the present case, however, the accused was found to have had neither the requisite mens rea to satisfy the conditions of § 25 StGB, due to a lack of intent (Tatwille)—as his reiterated statements emphasizing the necessity for a peaceful approach to the Catalonian independence process suggested—nor would he have been able to influence the events, due to the lack of the requisite actual—that is, physical—control (Tatherrschaft).Footnote 68 Ultimately, the OLG did not consider Puigdemont a planner, organizer, nor even a supporter of concrete foreseeable acts of violence and, therefore, declared a surrender on the grounds of rebellion to be inadmissible.Footnote 69
2. Surrender for Corruption
As far as Puigdemont’s surrender for “corruption” on the grounds of the embezzlement of public funds, an extradition was declared admissible by the OLG. In its considerations, the court first referred to its decision of April 5, 2018, in which the category of corruption—listed in Article 2(2) of the EAW Framework Decision—and the subsumption of embezzlement thereunder were scrutinized.Footnote 70 Without examining the double criminality, the court simply reviewed the justifiability of classifying the acts as corruption—without undertaking an in-depth analysis of the term—and, at most, the plausibility of the course of events.Footnote 71
The OLG recognized the complex nature of the concept of corruption and lack of a standardized definition. Corruption, as a global problem, takes many different forms. Thus, naturally, approaches to combat corruption differ globally. International anti-corruption efforts most prominently include the United Nations Convention against Corruption (UNCAC),Footnote 72 the Council of Europe Group of States against Corruption (GRECO),Footnote 73 and EU policies and legislation—such as the 1997 Convention on Fighting Corruption Involving Officials of the EU or Officials of Member States.Footnote 74 Notably, the UNCAC does not provide a definition of corruption, but rather requires or encourages the Convention’s parties to criminalize specific acts—such as the misuse of public funds—taking into account the various forms in which corruption may appear in different countries all around the globe. In this respect, the OLG’s subsumption of the offense of misuse of public funds under “corruption”—as listed by Article 2(2) of the EAW Framework Decision—was subject to some criticism, as the scope of the offense under the Framework Decision—which provides a basis for concrete intrusive measures in the form of an EAW—calls for a more restrictive interpretation than a UN Convention adopted with the general political intent to fight corruption in the broadest sense.Footnote 75 Overall, however, in spite of the ambiguity and lack of clarity regarding the term corruption, the EU Member States have—according to the court’s view—come to the agreement that certain offenses are indeed essentially comparable, by adopting the catalog of offenses in Article 2(2) of the EAW Framework Decision.Footnote 76
Notwithstanding the partial inconsistency of the extensive footage subsequently filed by the Spanish authorities,Footnote 77 the description of events issued by the Spanish court to the OLG appears logical and convincing, with Puigdemont naturally planning to finance the statewide but unconstitutional referendum from the government’s budget. Footnote 78 The OLG ultimately held that Puigdemont could be surrendered for corruption, subject only to a grant of approval by the Prosecutor General (Generalstaatsanwalt).
In the aftermath of the Puigdemont case, however, nine other Catalan separatist leaders were convicted of sedition and sentenced to between nine and thirteen years in prison by the Tribunal Supremo on October 14, 2019.Footnote 79
D. The Political Offense Exemption
With regard to the major political importance and sensitivity of the Puigdemont case, the OLG approached the issues of extradition on the grounds of a political offense and political prosecution in both the decisions of April 5, 2018 and July 12, 2018.Footnote 80 General German extradition law prohibits extradition on the grounds of a political offense, pursuant to § 6 (1) IRG. This “political offense exemption” is a principle developed by international extradition law; however, its perception in the European context has changed significantly over the past few decades. Footnote 81
I. History and Considerations Behind the Exemption’s Introduction
Historically speaking, the idea that having committed a political offense warrants different treatment in extradition procedures is a fairly new one.Footnote 82 Until the beginning of the nineteenth century, political offenses were one of the main grounds for extradition among European states.Footnote 83 This phenomenon can be explained with reference to the European monarchies at the time having a common interest in preserving their respective political regimes.Footnote 84
It was the civil revolutions and liberalism which gave birth to the concept of the political offense exemption. During the rise of democracy, liberal states wished to protect those who had fought to establish a liberal order.Footnote 85
Though moral considerations—guided by sympathy for liberal movements and their advocates—were the initial trigger for the exemption,Footnote 86 these considerations have always been overshadowed by the states’ interests.Footnote 87 According to the majority of legal scholars, this concept was inspired by the states’ desire “to remain aloof from the internal affairs of the requesting state.”Footnote 88 With regard to the principles of sovereignty and equality of all states under international law, the requested state refrains from intervening in an internal political conflict of the requesting state because any intervention would compel it to politically evaluate the parties to the conflict.Footnote 89
Nonetheless, not extraditing constitutes, in some ways, just as much of an intervention in the requesting state’s internal affairs and often implies a judgment on the impartiality of its judiciary.Footnote 90 Thus, some commentators consider the exemption a tool of political opportunity which protects the requested state from having to extradite against its own interests.Footnote 91 Factors employed to substantiate the inopportunity of extradition can be a perceived lack of danger emanating from the perpetrator and a given state’s own interest in political change in the requesting state.Footnote 92 For von Weber, the exemption is an expression of the competition of the states: Where every state is each other’s potential enemy in war, it is more opportune not to extradite.Footnote 93 Thus, the exemption grants the states a loophole to refuse extradition when deemed inopportune, sometimes concealing a political will behind a judicial decision.Footnote 94
Another understanding of the exemption is that it has evolved into a principle of law—its function being to force the requested state to consider whether there are compelling reasons to risk a conflict with the requesting state by not extraditing. The decisive factor would then be whether the requesting state is worthy of protection. Therefore, § 6(1) IRG has its independent value as a principle, protecting from prosecution in illiberal states which are thus not worthy of protection.Footnote 95
II. The Abolition of the Exemption Within the European Union
Given the context of its introduction, one can easily retrace why, as liberalism spread throughout Europe, the political offense became less significant.Footnote 96 After the horrors of World War II, grave and inhumane offenses were excluded.Footnote 97 The exemption was further narrowed down after being abused by civil war criminals and terrorists, which had led states to start perceiving it as an obstacle to international justice.Footnote 98
Thus, the 1996 EU Convention on Extradition Between Member States first introduced the idea of abolishing the political offense within the EU, even if it was possible to partially maintain it through notification.Footnote 99
This evolution reached its logical conclusion with the introduction of the Framework Decision on the European Arrest Warrant,Footnote 100 which does not list the political offense exemption among the grounds for non-execution or guarantees to be given in Articles 3–5 of the EAW Framework Decision. Thus, it effectively prevents Member States from resorting to this undifferentiated mechanism to refuse execution.Footnote 101
The departure from the political offense exemption was implemented into German law through § 82 IRG, which stipulates that the exemption does not apply to circumstances concerning extradition between Member States.Footnote 102 Notwithstanding this, political prosecution—governed by § 6(2) IRG—still remains a ground for non-extradition in accordance with Recital 12 of the EAW Framework DecisionFootnote 103 and, therefore, is explicitly not mentioned in § 82 IRG.Footnote 104
III. The Continued Necessity for the Exemption Within the European Union
1. The Limited Justificatory Force of Mutual Trust and Recognition
The abolition of the political offense exemption rests on the idea that there is no need for such an exemption within the EU, due to it being a community of shared values—characterized by a high level of protection with respect to the principles of the rule of law—and possessing a common foreign and security policy.Footnote 105 The aforementioned considerations regarding non-interference in the internal affairs of a sovereign state and political expediency are no longer considered appropriate justifications for the political offense exemption, with respect to the relations between Member States, and are deemed to contradict the principle of mutual recognition.Footnote 106 In context with the latter, the abolition is further justified in light of the mutual trust in the judicial systems and full respect for the rule of law, which is legally substantiated by the Member States’ obligation to adhere to the basic principles of EU law under Article 6 TEU.Footnote 107 The concept of mutual trust pertains not only to the rule of law of the Member States and the compliance with common basic principles, but also to the current political conditions prevailing within the EU framework.Footnote 108
In both decisions in the matter, the OLG referred to this community of shared values when responding to concerns raised by Puigdemont and his counselors, first and foremost regarding the danger of political prosecution in Spain. With reference to §§ 82 and 6(1) IRG, the OLG did not examine the question of whether a surrender could be granted—even though the underlying act was, in fact, a political offense.Footnote 109 Relying on the principles of mutual recognition and mutual trust among the EU Member States, the OLG found that in the common AFSJ, every Member State must presume the adherence to EU law of all other Member States. This is why a breach of the EAW Framework Decision—see Recital 12—can be ruled out.Footnote 110
In its decision of July 12, 2018, the OLG formalized and expanded this analysis: The court touched upon the issue that, because the surrender for the “political” offense of rebellion was declared inadmissible beforehand, the political offense exemption was not to be discussed—yet again denying any political dimension to the offense of corruption.Footnote 111 The OLG explicitly deemed the suggestion that the Spanish State, a member of the AFSJ, could abuse criminal proceedings—in order to ultimately punish Puigdemont for his political beliefs or disregard the doctrine of specialty and instigate proceedings on the grounds of rebellion—as “unreasonable” and “unimaginable.”Footnote 112
Notwithstanding the court’s decision, the existence of a European consensus on shared values serving as a prerequisite for the abolition of the political offense exemption is questionable, due to the fragility of the community of shared values and the permanent danger of fundamental changes in the judicial and political systems of the Member States.Footnote 113 Accordingly, it cannot be irrevocably assumed that all Member States fully respect the basic principles and adhere to the rule of law.Footnote 114 In this context, it becomes apparent that mutual trust—which is based upon the shared commitment to the basic principles—is fiction, rather than an expression of real trust.Footnote 115 In particular, the Member States’ disapproval of the total abolition of the double criminality requirement—as initially sought by the European Commission—and their mere consent to a softened double criminality requirementFootnote 116 may be considered a sign of the lack of mutual trust which already persisted before the establishment of the EAW. Trust issues have recently been generated by the highly criticized legislative reforms of the justice system in Poland.Footnote 117 The current circumstances in Poland demonstrate the risk of changes to the judicial and political systems of the Member States, which necessarily raise doubts regarding their commitment to the basic principles and the rule of law. As a reaction to the reforms in Poland, the Court of Justice of the European Union (CJEU), although pointing to the significance of mutual trust and mutual recognition in maintaining an area without internal borders, recognized in its judgment of July 25, 2018 the need for safeguards in individual cases.Footnote 118 In particular, the court referred to its previous decision of April 5, 2016Footnote 119—wherein it had reiterated that unless one of the grounds for non-execution in the EAW Framework Decision is fulfilled, states are compelled to extraditeFootnote 120—but, nevertheless, somewhat remarkably recognized that limitations to the principle of mutual trust can be made in exceptional circumstances.Footnote 121 This decision shows that the principle of mutual trust has never been absolute.
It follows from the above-mentioned considerations that the justificatory force of mutual trust and recognition is limited with respect to the abolition of the political offense exemption. Against this background, the abolition is thus not justifiable.
2. The Exemption as a Means of Attaining a Higher Level of Human Rights Protection
This lack of justificatory force is highly problematic from a humanitarian point of view. Apart from the principle of non-intervention, the exemption also has to fulfill the demands of human rights. It is meant not only to promote the state’s interest but also to protect the requested person, who has a right not to be extradited when he or she faces political persecution in the requesting state.Footnote 122 Where the requested person cannot be expected to be treated “fairly,”—that is, in accordance with the principles of the rule of law—the political offense exemption overlaps with the protection from political prosecution.Footnote 123
There is indeed a close connection between the two concepts which justifies treating these offenses divergently. Nonetheless, where the prosecution satisfies the standards of a fair trial, prosecution for a political offense is not political prosecution.Footnote 124 In this sense, many argue that in stable democracies, such as the EU Member States, an undifferentiated refusal by means of the political offense exemption becomes obsolete from a human rights point of view.Footnote 125 As long as protection from political prosecution is guaranteed, the humanitarian core of the political offense exemption would be maintained.Footnote 126
While it is true that protection could theoretically be attained with the exemption of political prosecution, it is questionable whether the protection is as efficient. As mentioned above, the EU Member States trust in their respective judicial systems, and their recognition of the rule of law implies trust in adherence to human rights. Against this background, it would be a highly delicate matter for a national judge to accuse an otherwise stable democracy of political prosecution in an individual case. It is an emergency brake that is a lot harder to pull, as judges will bear in mind the political consequences of accusing a Member State of political prosecution.
Yet, efficient protection within the EU is pivotal. Contrary to the expectations of the authors of the Framework Decision—and of many legal scholars, who assumed that both exemptions had a quasi-nonexistent scope of application Footnote 127 —the humanitarian aspect of the exemption is relevant even within the EU. Footnote 128 The risk that criminal law might be abused for political prosecution persists, as Member States currently seem to be rediscovering criminal law as a means of settling internal political dispute or for harassing their opponents. Footnote 129
Given the issue at stake, should the level of protection not be set as high as possible? Even if there might not be any competition between legal systems or ideologies Footnote 130 anymore, should there not be a competition for the most protective system? In order to assure the European AFSJ, even doubts regarding the integrity of the criminal proceedings should suffice to shake the trust in the judges’ independence and, therefore, to refuse extradition. It is crucial that an individual’s rights take precedence over a state’s power games. Footnote 131
A high level of human rights protection is equally as important a cause for the EU as mutual trust is—a cause that should not be sacrificed on the altar of mutual recognition.Footnote 132
3. Negligible Damage to the Principle of Mutual Trust Due to the Low Number of Cases
There is no denying that the principle of mutual recognition is indispensable for a system such as the EU to function.Footnote 133 Nevertheless, one might question how much damage upholding the political offense exemption within the framework of the European Arrest Warrant would have caused to this principle of EU law. As a matter of fact, many offenses—such as terrorism, which all EU countries indisputably do not consider worthy of protection—were already excluded from the scope of the exemption.Footnote 134 While the exemption is often perceived as a hindrance to judicial cooperation among EU Member States, the scope of application is too narrow to cause problems regarding the principle of mutual recognition.Footnote 135 The number of offenses considered “political” has steadily decreased by such perimeters. Yet, the OLG adduces treason as an offense which is internationally considered “political,” aimed against the fundamental political order and the continued existence of the state itself.Footnote 136 Puigdemont is thus considered to be a political offender; still, he is the first one to ever be requested under an EAW. Consequently, given that the stakes are high and the number of cases is low, it seems justifiable to deviate from the principle of mutual recognition for political offenses because the damage to the principle is negligible.
4. Further Narrowing Down as an Alternative Approach to Ensuring the Efficiency of the EAW
Seemingly, a more sensible approach would be to further curb the notion of political offense instead of abolishing it entirely.Footnote 137 The necessity to do so has been recognized since the establishment of the exemption, Footnote 138 and it was the commonly-followed approach in the twentieth century. Footnote 139
By narrowing down, merely a core of political offenses—which are still closely linked to the specific national legal system and for which a general consensus has not yet been achieved—would continue to fall within the scope of the exemption. In this way, the efficiency of the extradition procedure under the EAW would be ensured. Moreover, political entanglements concerning the EAW would be avoided by keeping the explosive potential of political offenses and the disagreement that still exists regarding certain offenses out of the EAW.
Repealing the exemption has proven too hasty, as Puigdemont’s fate illustrates. Spanish Professor of Law, Daniel Sarmiento, maintains that the OLG ruling undermines the EAW’s general effectiveness. Footnote 140 Including core political offenses in the EAW discredits the efficiency of the whole instrument, as the EAW cannot be efficient when dealing with such offenses. This becomes evident when taking a closer look at the decision.
5. The Questionable Suitability of the Formal Procedure of the EAW
The objective of a more effective and shorter extradition procedure, a principal idea behind the introduction of the EAW, appears to have been adversely affected by the Puigdemont case. The suitability of the procedure, outlined by the EAW Framework Decision, with respect to this case remains questionable. The above-average length of the case documents,Footnote 141 the OLG’s failure to meet the deadline, and the detail and elaboration of its assessment are hardly comparable to other, more usual, and less complicated surrender procedures following an EAW. These consequences may derive from the complications of the case, especially with respect to its dimension,Footnote 142 or the sensitive nature of the subject matter. This explains the verbose preliminary remarks in both decisions of the OLG. In the court’s own words, the case is “durchaus untypisch” (rather unusual), raising doubts about the suitability of the EAW procedure for such exceptional circumstances.
6. The Importance of Taking into Account National Constitutional Specificities
The case was beyond the scope of the EAW because the specificity of the national legal systems is particularly pronounced when it comes to political offenses. The conception of these types of offenses is closely linked to a country’s constitutional identity. Whether certain conduct is considered an acceptable act of political expression or criminal behavior may vary, depending on the constitutional characteristics of a legal system and a nation’s historical experience.Footnote 143 Germany, with regard to its history, has a particular responsibility where purported political offenders are concerned.Footnote 144
Therefore, even within the EU, Member States may not always come to the same moral judgment concerning the legitimacy of politically relevant behavior.Footnote 145 The Puigdemont case, for instance, raised the question whether force was inappropriately used to achieve a political aim. The use of force within democracies is a widely disputed issue among legal scholars. Although, in principle, violence should not be necessary in democracies, some still concede that it can—at times—be justified.Footnote 146 In that sense, Green observes that a state may even acknowledge, as a political offender, an individual requested by a politically sympathetic state.Footnote 147
As political offenses are closely linked to the core values of a society—such as political freedom—it is important that states are able to do justice to their respective constitutional identities, as well as the specific characteristics of their legal systems in this area of law. Therefore, they are not compelled to extradite when specific conduct is not considered worthy of sanctions.
This cause is the idea behind the double criminality requirement. The remaining question is whether the requirement sufficiently enables the states to do justice to their national specificities within the EAW.
7. The Double Criminality Requirement as an Inadequate Sole Means
With regard to the Puigdemont case, the examination of the double criminality requirement was a major point of criticism.Footnote 148 After the OLG rendered its decision of July 12, 2018, the investigating judge at the Tribunal Supremo, Pablo Llarena, accused the German court of undermining his ability to act by anticipating the outcome of a trial outside of its jurisdiction. Llarena argued that the OLG’s control should have been limited to checking whether the acts described by the Spanish jurisdiction were generally covered by German criminal law, and whether a criminal investigation against the person requested would therefore be justifiable. By passing a final judgment, rather than merely reviewing the abstract requirements for such a prognosis, the OLG did not adequately adhere to the statutory provisions of European law.Footnote 149 Instead, the court chose an approach sometimes referred to as “reinforced double criminality.”Footnote 150 In order to satisfy this requirement, it is not sufficient that the acts, which are the basis for the charges, constitute a crime in the issuing state, nor that for similar actions, German Law protects similar legal positions. On the contrary, it is necessary to imagine that, had the facts of the case occurred in Germany under the same circumstances, they also would have been punishable by means of criminal law.Footnote 151
The OLG judges argued that it was a normatives Tatbestandsmerkmal (normative element of the offense), which thus had to be examined beforehand; however, it was also the only way for the judges to be certain that no conduct would be sanctioned that German law deems valid political opposition.
It must be made clear that Spanish law also requires the use of force. Yet, while the Spanish authorities consider that there are grounds for prosecution, the German judges rule out the use of force ab initio. The conception of the level of force is crucial here. The judges seemingly deemed it necessary to ensure the level of force satisfies the requirements of German law. If one considers that the judges were wrong in their approach to the double criminality requirement, this will imply that one must deduce that double criminality is not an infallible means of protecting the characteristics of the legal system. The judges would, to a very large extent, still be required to rely on the principle of mutual trust by assuming that the two systems are sufficiently compatible in the area, which is not always guaranteed to be the case.Footnote 152
Nevertheless, even if one assumes that the judges did so rightfully and that the requirement is a sufficient means of ensuring that states do not have to extradite for conduct they do not consider illegal, this puts the judges in a very uncomfortable position. The fact that, in a matter as sensitive as political offenses, the judges have the sole responsibility of giving justice to their respective systems seems disproportional. The national judges are thereby placed at the forefront of where mutual trust and constitutional identity collide. The OLG was inevitably going to bear the brunt of the criticism, and it was very well aware of its burdensome task, as the elaborateness and length of the judges’ account indicates.
In this context, the OLG attempted to fulfill this responsibility and apparently felt the need to further explain and justify its decision of April 5, 2018 in which it declared the surrender for rebellion inadmissible after facing criticism from German legal scholars.Footnote 153 Therefore, in its decision of July 12, 2018, the OLG not only addressed § 81(1) StGB as an offense applicable under German law, but also reviewed § 125(1) StGB, and expressly stated that it had taken all StGB provisions into account. It further explained its profound review of the suitability of the force used to achieve success, in accordance with the jurisdiction of the BGH. Having to decide in the context of such political sensitivity is not conducive to a decision free from external influences.
8. The Remaining Political Dimension of the EAW
Even though the EAW was meant to depoliticize extradition between Member States,Footnote 154 the Puigdemont case maintained a political dimension. Particularly in Spain, the Catalan situation precipitated serious political conflict, with the emergence of a heated debate provoked by both OLG rulings. In the preface to its second decision, the OLG refers to the seventeen-page account on the historical development of the Catalan independence movement—which was included in the EAW form by the requesting state—as an introduction to the description of the circumstances under which the offense was committed. This unusual approach made it seem as if the Spanish authorities themselves brought a political dimension to the—purely judicial—decision.Footnote 155
Furthermore, Llarena bemoaned an apparent “lack of commitment” to facts that could have destroyed the Spanish constitutional order.Footnote 156 When interpreting this statement, it could be understood either as an attempt to coerce the German courts into taking sides in a purely national political Spanish conflict, or as a reprimand directed at the OLG for interfering with national matters.
However, Llarena has subsequently recanted the EAW against Puigdemont—relinquishing the extradition for the less serious offense of corruption—and has decided not to bring the case before the CJEU, avoiding a confrontation between Germany and Spain at the highest judicial and political levels.Footnote 157 Attempting to de-escalate the conflict between Catalonia and the Spanish central government may well have been a possible objective of the German judges too, bearing in mind the repercussions a criminal trial could have had on the abating but nevertheless ongoing civil upheaval around the Catalan independence movement. On October 14, 2019, violent protests erupted once more in Barcelona, following the sentencing of Catalan separatist leaders pronounced by the Tribunal Supremo.Footnote 158
Puigdemont’s case thus reveals that the EAW fails to depoliticize the extradition of political offenders. Such a depoliticization cannot be achieved solely by formally excluding the political granting procedure from the extradition proceedings. The extradition process will always maintain a certain political dimension for as long as the subject matter remains political.
9. The Exemption as a Means of Promoting the Relationships Among the Member States
Llarena’s reaction is also a fine example of how a non-extradition is often just as much of an intervention into a state’s internal affairs as an extradition itself, even though the idea behind the political offense exemption is to avoid intervention by not extraditing. While many argue that the principle of non-intervention is no longer appropriate in a community of shared values and a high level of cooperation such as the EU,Footnote 159 maintaining this exemption within the EU does not, therefore, necessarily mean not intervening in another state’s internal affairs. On the contrary, it can be a tool to oppose another Member State’s conduct. The necessity of the exemption from a human rights point of view has been described above; however, even with regard to the relationships between the states, the political offense exemption can—at times—be a preferred tool. As a means of political expediency, it avoids having to accuse the requesting state of political prosecution—thereby allowing the refusal of an extradition in a diplomatic manner.Footnote 160 Some deny the necessity of the exemption, arguing that the Member States’ relationships are strong enough for them not to have to mask these intentions.Footnote 161 Llarena’s reaction, however, illustrates how political offenses can still put a strain on Member States’ relationships and the issue could have escalated as far as Spain taking the case to the CJEU. The political offense exemption would allow states to save face. The fact that the judges so firmly ruled out the possibility of political prosecution shows that they were all too aware of the political dynamite they were dealing with.
10. A Safeguard Against Intervention in Political Conflicts by Means of Criminal Law
While—from a human rights point of view—the exemption can be a tool for efficient and diplomatic intervention, its main aim is, nevertheless, to remain distant from a state’s internal affairs.Footnote 162 The idea behind this non-intervention is, however, not only to avoid complications for the requested state, but—in the light of a state’s sovereignty and its right to a political discourse free from external influences—not to interfere in the state’s political disputes through the application of criminal law.Footnote 163 Member States should not promote criminal law as a means of domestic political dispute.Footnote 164 Even if a state does not consider the incrimination of certain conduct to be political prosecution, it may not want to condone a certain way of resolving internal conflicts.
How a state wishes to resolve certain internal conflicts is very country-specific.Footnote 165 If the behaviors considered worthy of sanction vary significantly, then the opinions on what the appropriate degree and method of sanctioning should be are likely to differ even more. From an outsider’s point of view, it will be extremely delicate to judge whether these reactions are justified because both the historical and constitutional backgrounds play such an important role in the assessment of political offenses.
States should therefore not be forced to take sides in these conflicts. Article 4(2) TEU explicitly cites “ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security” among the “essential state functions.”Footnote 166 It appears questionable as to whether EU Member States are obliged to extradite for political offenses and to thereby intervene in the domaine réservé of the requesting state.Footnote 167 This treaty provision was intended to stress that statehood can be preserved and that there are certain essential competences which states do not intend to transfer to the EU.Footnote 168 Where the domaine réservé is concerned, non-intervention does not contradict the principle of mutual trust.
E. Conclusion
In the present situation, the need for strong cohesion and solidarity between EU Member States has taken on greater significance. Yet, with respect to the recent troublesome developments, it is hardly possible to foreclose the necessity of a political offense exemption—in order for the states to preserve and secure diplomatic and peaceful cooperation—especially in highly sensitive matters of national political importance. The OLG’s final decision illustrates both the rift that already exists within the EU and the enduring adherence to the European principle of mutual trust by closing with a—fairly unusual—remark: “The Senate has endeavored to abide by both the provisions of German criminal law as well as European law with its decision. It abundantly trusts that the Spanish judiciary will not act contrarily.”Footnote 169
Open access
