Case 15

Carles Puigdemont, President of Catalonia in exile

The 130th President of the “Generalitat de Catalunya”, is currently in exile in Belgium after the German justice refused to extradite him to Spain.

The 130th President of the “Generalitat de Catalunya”, is currently in exile in Belgium after the German justice refused to extradite him to Spain.

On his complaint before UN’s Human Rights Committee, Carles Puigdemont reports that Spain has infringed his right to stand for election, his right to go into partnership with other politicians and parties with a shared goal (Catalonia becoming independent from Spain), and his right to freedom of peaceful political expression in support of the independence of Catalonia. The president, who has been dismissed by the Spanish government after declaring independence, was elected again on 21st December for a new term. Spanish authorities impeded his re-election even though he has never been convicted for any crime or deprived of his political rights by a court of law.

 

Description

On 30 October, three days after the (unpublished) declaration of independence in the Catalan Parliament, José Manuel Maza, the chief state prosecutor, lodged a complaint against President Puigdemont and his government before the National Court in Madrid for alleged charges of rebellion, sedition and embezzlement of public funds. President Puigdemont left to Brussels with a number of his ministers, some of whom stayed there and thus failed to appear before the court in Madrid to testify (and get detained) on 2 and 3 November. From Belgium, he asked the international community to get involved in the Catalan conflict, accusing the Spanish government of conducting an offensive against Catalonia’s institutions and their officials;  at the same time, he justified their failure to heed Spanish court summons by claiming that they wouldn’t have a fair trial.

Judge Carmen Lamela issued a European Arrest Warrant (EAW) against Carles Puigdemont and the four ministers, who went to a Belgian court “so as not to evade the action of justice but only to defend themselves in a fair and impartial trial” in their words. The Brussels court of first instance provisionally released them, pending its final decision on the extradition request. Just before its judgment (which Spain feared would be negative), Spanish judge Pablo Llarena revoked the EAW (but not the Spanish one), which meant that if the defendants trod on Spanish soil they would be arrested.

From Brussels President Puigdemont stood as the leading candidate of Junts per Catalunya, a new political coalition, for the election called by the Spanish government on 21 December. Though his group came second in the elections, it did so just behind the Unionist party Ciudadanos, and pro-independence politicians retained a majority in the Parliament, so he became the candidate for President. However, he could for obvious reasons not be physically present in the chamber for the investiture debate, and was prevented from taking office by the Constitutional Court in response to a Spanish government appeal – made despite the better judgment of the Council of State and court lawyers – in an unprecedented cautionary decision, only explicable because of direct pressure from members of the government. Some days later Jordi Sànchez MP, number 2 on the party list, who was in pre-trial detention, was not given leave to attend the investiture debate; and a third candidate, Jordi Turull MS, was arrested before the final vote, and has also been in pre-trial detention since then.

On 23 March 2018, taking advantage of the fact that Carles Puigdemont was in Finland, the examining judge Pablo Llarena issued a new EAW on grounds of rebellion and misuse of public funds. Two days later, as President Puigdemont was returning to Brussels by car, and after having crossed Sweden and Denmark, he was arrested just inside Germany. On 5 April, the Schleswig-Holstein high court set him free with precautionary measures – but no bail – in a preliminary hearing, before having to rule on the extradition request on charges of rebellion. Judge Llarena decided to reduce President Puigdemont’s alleged offence (from rebellion to sedition) but the court also turned down this offence and only retained the option of extraditing him on grounds of misuse of public funds. Judge Llarena decided not to appeal to a higher court, and again withdrew the EAW (thus, according to some, deliberately failing to discharge his duty); and President Puigdemont returned to Brussels as free man. Later, judge Llarena applied legislation previously applied only to detainees charged with terrorism to suspend President Puigdemont and the other defendants who were MPs, whether or not they were in gaol, from their posts.

Image source: Wikimedia Commons

Before

As Catalonia’s President, Carles Puigdemont was seen as the main promoter of Catalonia’s independence referendum on 1 October 2017, following a parliamentary resolution adopted by both pro-independence groups, who held an outright majority in Parliament. The referendum was under the terms of a Bill enacted in September 2017, and despite efforts by the Spanish police to abort it (searches for ballot boxes and papers, correspondence, arrests of high-ranking officials…) and then to stop it (with considerable police violence, cyberattacks…). Turnout was 43%, and 90% of votes were “Yes”. That same day, Puigdemont said he would take the results to Parliament. Ten days later, Puigdemont suspended the declaration of independence laid down in law, after top-level assurances of an international mediation, which never happened.

On 21 October, the Spanish government announced the implementation of section 155 of the Spanish Constitution, in the form of direct rule of Madrid on Catalonia; this was passed on 27 October by the Spanish Senate and the result was the de facto sacking of Puigdemont and his ministers (even though they never acknowledged that decision). Earlier on the same day, the Catalan Parliament had adopted a resolution declaring the independence of Catalonia.

A good chronology of the road to the Catalan independence can be found here

The outcome

Knowing for a fact that were he to return Spain he would surely be arrested and that he would have what he deemed an unfair trial, Catalonia’s President decided to stay in Brussels. From there, he has been leading an international campaign to denounce Spain’s lack of democracy and to reclaim Catalan governmental institutions. He is also pushing policies aiming at the materialization of the Catalan Republic and defends civil and political rights through a “Consell per la República” (Council for the Republic).

In the meantime, on March 27 2018, the United Nations (UN) Human Rights Committee admitted a complaint from Puigdemont for a violation of his political rights in Spain when his investiture was blocked, as well and other breaches of several of the Catalan president’s rights. It had been presented earlier in the month by one of Puigdemont’s international lawyers, Rachel Lindon.

At a late date Mr. Puigdemont and those of his colleagues (some in pre-trial detention) who are MPs decided to lodge another complaint before the United Nations, for violations of their political rights

Violated laws

President Carles Puigdemont and members of his government and of the Parliament of Catalonia claim several of their fundamental rights have been violated. Firstly, the right to political participation, since the government he presided over was dismissed, Parliament dissolved and direct rule imposed on the basis of the application – authorised by the Spanish Senate on October 27, 2017 – of Article 155 of the Spanish Constitution. In actual fact, the article does not provide for any of the above-mentioned measures.

 Secondly, the right to presumption of innocence has also been violated since although President Puigdemont made himself available to the courts of Belgium as soon as he reached that country, Spanish courts still regard him as a “fugitive from justice” and take for granted he is guilty to judge by the orders it has issued, despite President Puigdemont not having yet been tried. It is striking that on two occasions EAWs issued against him by Spanish courts have later been withdrawn, given there was clearly no evidence to justify charges of rebellion of sedition.

At the end of January 2018, his political rights were again violated – after having been encouraged by Spanish government ministers to stand for the (illegally called) regional election in December 21 2017 and being chosen as the candidate to (recover) the Presidency – by the Spanish government that called on the Constitutional Court (against the better judgement of the Council of State) to block his candidacy. After reportedly being phoned by the Government, the Constitutional Court issued an unprecedented, temporary injunction order to achieve this aim.

 In June 2018 his political rights were yet again violated, this time by the Supreme Court, that applied a legal provision hitherto applied only to detained terrorists awaiting trial: the suspension of his rights as a Member of Parliament. This decision affected the parliamentary majorities chosen by the Catalan electorate and thus also violated their political rights as voters.

 Furthermore, Spain also violates the right to the personal freedom and integrity of the President, since in spite of having appeared before the courts of the countries he has travelled to since his departure fom Catalonia, and in spite of the withdrawal of EAWs issued by the Supreme Court, the Spanish authorities have persisted in using technological tracking devices to have him geolocated, and judicial investigations are underway in various countries on this issueA prosecutor in Spain’s National Court may have been linked in an espionage plot

 With regard to the judicial procedure against members of his government, MPs of the Parliament of Catalonia, and social leaders of civil society pro-independence associations on charges of rebellion, sedition, embezzlement of public funds and contempt of court, there have been several violations. In the first place, President Puigdemont’s right to effective legal protection has not been respected: he has not been allowed to defend himself from these serious charges before the Supreme Court unless he hands himself over to the Spanish judicial authorities, in contravention of current legislation. The principle of criminal legality (that is, criminal liability and punishment should be based only upon a prior enactment of a prohibition that is expressed with adequate precision and clarity) has also been violated in his case.

 It is worth recalling that in the case of President Puigdemont’s detention in Germany, the High Court of Schleswig-Holstein ruled on July 12, 2018 that the alleged crime of rebellion did not exist in his case and that he could be extradited to Spain only to stand trial on charges of misuse of public funds. The ruling prompted the immediate withdrawal by the Spanish Supreme Court of the EAW issued for German, Belgian and Scottish to grant the extradition of Sr. Puigdemont and other exiled members of the Catalan government. The rest of the Catalan Government is nevertheless on trial, charged with these crimes by the Spanish authorities.

References

 

Carles Puigdemont, the mayor who became Catalan President number 130

 

Parliament invests Carles Puigdemont as President of the Generalitat (in Catalan), Parliament website

New Catalan President, Carles Puigdemont, takes office (in English)

Catalan chief pledges binding independence referendum in 2017

 

Catalan Parliament decides to call a referendum with or without Spain’s consent (in English), Catalan News

Catalonia to hold self-determination referendum on October 1, 2017 (in English)

President Puigdemont announces Catalonia will hold a self-determination referendum on 1 October (in English), Government website: 

Puigdemont postpones declaration of independence to make a final offer of dialogue to Spain (in English), Ara: 

Rajoy anounces sweeping plan to take control of Catalonia (in English) 21-10-2017

Rajoy announces sacking of President Puigdemont and his Government and calls regional elections on 21 December (in Spanish), Spanish government website

Provision whereby Senate authorizes the application of section 155 in Catalonia (in Spanish), Spanish Official Gazette (BOE)

Catalan leader Carles Puigdemont has fled the country amid rebellion charges (in English) 

The Prosecutor-General announces two lawsuits: one for rebellion, sedition and misuse of public funds against the Catalan government, and another against the Catalan Parliament Bureau (in Catalan), El Punt Avui: http://www.elpuntavui.cat/politica/article/17-politica/1271707-carles-puigdemont-es-troba-a-brussel-les.html

President Puigdemont and five of his ministers travel to Brussels via Marseilles (in Spanish), Efe: https://www.efe.com/efe/america/mundo/el-expresidente-catalan-y-cinco-de-sus-consejeros-viajaron-a-bruselas-desde-marsella/20000012-3423228

Puigdemont and dismissed cabinet members summoned to court for November 2, Catalan News: http://www.catalannews.com/politics/item/puigdemont-and-dismissed-cabinet-members-summoned-to-court-for-november-2

The Spanish government invites President Puigdemont to stand for re-election in the Catalan election (illegally) called by PM Rajoy (video, in Spanish), YouTube: https://www.youtube.com/watch?v=DRPqrzqZDmc

Spanish Foreign Minister Alfonso Dastis invites President Puigdemont to stand at the election “to see what support he has” (video, in Spanish), ABC: http://www.abc.es/espana/abci-dastis-invita-puigdemont-presentarse-5644035612001-20171113012304_video.html

The Puigdemont case: Belgian judge to request clarifications on Spain’s accusations (in English): https://www.euractiv.com/section/future-eu/news/puigdemont-case-belgian-judge-to-request-clarifications-on-spains-accusations/

Belgian judge says pre-trial detention would have cave caused irreparable harm to Sr. Puigdemont” (in Catalan), Ara: https://www.ara.cat/politica/jutge-preventiva-hauria-causat-irreparables_0_1906609373.html

Spanish Minister of Defence María Dolores de Cospedal says “The election has been called for constitutionalism to win it” (video, in Spanish), El Diario: https://www.eldiario.es/rastreador/Cospedal-elecciones-catalanas-convocado-constitucionalismo_6_715388458.html

The Spanish Supreme Court withdraws the extradition request for Puigdemont and the ministers, to forestall the Belgian court limiting the charges (in Catalan), VilaWeb: https://www.vilaweb.cat/noticies/el-suprem-retira-la-peticio-dextradicio-de-puigdemont-i-els-consellers-perque-la-justicia-belga-no-li-limiti-les-acusacions/

Spanish Supreme Court judge Llarena withdraws EAWs against Puigdemont and the four ministers in Belgium (in Catalan), Ara: https://www.ara.cat/politica/Llarena-euroordres-Puigdemont-consellers-Brusselles_0_1918608223.html

Spanish Government panicked during the judges’ deliberation and conveyed to the Constitutional Court the gravity of Puigdemont’s claim to be reinstated (in Spanish), El País: https://elpais.com/politica/2018/01/28/actualidad/1517164077_657245.html

How the Government in exile will work: the “Consell de la República and the Assemblea de Representants (in Catalan), Ara: https://www.ara.cat/politica/Consell-Republica-representants-funcionara-Govern_0_1969603179.html

The “Puigdemont v. Spain” case before the ONU Human Rights Committee (in Catalan), El Nacional: https://www.elnacional.cat/ca/politica/document-demanda-puigdemont-comite-drets-humans-onu_244266_102.html

Judge Llarena issues six new EAWs, at request of public prosecutor, the day that 25 Catalans are formally indicted for the “procés”, and that he learns that President Puigdemont has left Belgium and is in Finland, El Confidencial: https://www.elconfidencial.com/espana/cataluna/2018-03-23/llarena-euroorden-puigdemont-cinco-fugados_1540373/

Puigdemont is arrested on entering Germany from Denmark (in Catalan), Catalan public media website: http://www.ccma.cat/324/la-policia-alemanya-ha-retingut-puigdemont-quan-entrava-al-pais-des-dedinamarca-segons-el-seu-advocat/noticia/2846615/

Spanish spies tracked Carles Puigdemont via friend’s phone (in English), The Guardian: https://www.theguardian.com/world/2018/mar/27/spanish-spies-tracked-carles-puigdemont-via-friends-phone

The UN accepts Carles Puigdemont’s human rights complaint against Spain (in English), El Nacional: https://www.elnacional.cat/en/politics/un-puigdemont-human-rights-complaint_252615_102.html

German court sets Puigdemont free and dismisses rebellion offence (in Spanish), La Vanguardia: https://www.lavanguardia.com/politica/20180405/442207871883/puigdemont-libre-descarta-rebelion.html

Here is a Spanish translation of the Schleswig-Holstein high court’s reasons for extraditing President Puigdemont only for misuse of public funds (in Spanish), El País: https://elpais.com/politica/2018/07/16/actualidad/1531758760_402245.html

Judge Llarena suspends the parliamentary membership of Puigdemont and five MPs charged in relation to the 1 October referendum (in Spanish), Diario Vasco: https://www.diariovasco.com/politica/llarena-suspende-puigdemont-20180710142456-ntrc.html

Judge Llarena rejects Puigdemont’s extradition for misuse of public funds and withdraws EAWs against Puigdemont, Comín, Serret, Puig, Ponsatí and Rovira (in Spanish), Spanish public TV website: http://www.rtve.es/noticias/20180719/juez-llarena-rechaza-entrega-puigdemont-malversacion-retira-euroordenes-contra-fugados/1766882.shtml

The Constitutional Court admits appeals for protection presented by president Puigdemont and five other leaders of the ‘procés’, following their suspension as MPs (in Spanish), El País: https://elpais.com/politica/2018/11/05/actualidad/1541420841_050316.html

 

Jailed ministers and President Puigdemont to lodge a complaint before the United Nations for violation of their political rights (in English), Ara: https://www.ara.cat/en/Jailed-ministers-Puigdemont-United-Nations_0_2145985683.htm

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