The Prosecutor’s Office supports the intention of the Supreme Court magistrate Pablo Llarena to go to Europe to determine if the decision of the Belgian justice not to hand over the fled for the cause of the process is protected by European regulations.
In a brief presented to the instructor and to which he has had access The vanguard, believes that a preliminary ruling is necessary before the Court of Justice of the European Union to determine whether the Belgian justice has violated European Union law.
Specifically, it refers to the sentence by which the Brussels court of appeal rejected the delivery of former minister Lluis Puig for a crime of embezzlement of public funds and another and disobedience, understanding that the Spanish Supreme Court is not the competent body to judge him.
Fearing that the same drift could be taken when the delivery of the former president of the Generalitat Carles Puigdemont is resolved, Llarena raised to the parties the possibility of going to Europe and asked your opinion
The first to answer has been the Prosecutor’s Office, which sees the movement as successful and in fact asks it three questions about what to sustain before the CJEU.
“Bankruptcy of trust”
The decision of the Belgian justice not to hand over Lluis Puig for rejecting the jurisdiction of the Supreme Court and proclaiming the risk of violation of the right to the presumption of innocence is completely arbitrary and constitutes a violation of the law of the Union regulating the European arrest warrant and delivery as a mechanism of cooperation between the Member States and a breach of the principles of mutual recognition, mutual trust and loyal cooperation that govern the European judicial area, ”the letter states.
The first question that you think can be posed to the European justice is whether “the judicial authority of the executing state is authorized to deny the delivery of the claim by the OEDE for reasons other than those included in articles 3, 4 and 4 bis of the framework decision that establishes the mandatory and optional grounds for refusal of requests for arrest and surrender originating from the States of the Union ”.
In the opinion of the Prosecutor’s Office, “the Belgian court has exceeded in making an interpretation contrary to the jurisprudence of the CJEU, which in its latest judgments attributes the protection of fundamental rights to the issuing judge, taking into account that all the Member States share the same values and we are part of the same judicial system ”.
As he explains, the possibility of examination by the judge of execution of the violation of fundamental rights (in this case the Belgian court) is “extremely exceptional”: when it comes to “affecting the integrity of persons, as could be the situation of the prisons ”.
“Nothing appears in the Belgian judgment. There is no analysis such as that required by the CJEU in cases of alleged violations of fundamental rights, “explains the public prosecutor.
The second question that it raises is “whether the executing State can reject the delivery of the person sought due to the lack of competence of the Supreme Court to hear the crime for which the delivery is verified with respect to the appellant, based on the erroneous argument that the competence with respect to the Supreme Court’s not graduated is only based on jurisprudential criteria, without there being legal precepts that establish it, when the Statute of Autonomy of Catalonia clearly establishes that extension of the questioned competence with respect to the not graduated ”.
For the Prosecutor’s Office, “among the powers of the executing state is not to question the competence of the judicial authority of the issuing state to hear the crime that motivated the claim.” For this reason it considers that these internal rules of objective competition cannot be grounds for refusal by the OEDE.
As a third question, it proposes “whether the executing State can reject the surrender of the person sought on the basis of the conclusions of a United Nations working group, which affirms, without any objective basis, the existence of risks of injury to the presumption of innocence when the trial for the claimed rebel has not even been held ”.
ETA Jauregui as an example
For the four prosecutors in charge of the process, the decisions and conclusions of that working group “are not binding, and have been disallowed by the Supreme Court, which has rejected the binding nature of its conclusions.”
They recall that this issue has also been examined in the jurisprudence of the European Court of Human Rights (ECHR). In particular, when the Belgian judicial authorities denied the execution of the OED on several occasions with respect to the ETA member Natividad Jauregui. “It was only after Belgium’s conviction by the ECHR for not executing the OED on June 11, 2019, was the OEDE complied with by delivering the claimed one on November 22, 2020.”
In the case of the procés, the prosecutors understand that the opinion of the working group that has served as a source for the Brussels Court of Appeals “contains simple speculations without any objective basis, as expressly recognized by the Belgian court decision.”