Puigdemont Cannot Be Extradited on Rebellion Charge, German Court Rules

It also puts into question Spain’s chances of extraditing several other Catalan politicians who have avoided prosecution by traveling to Belgium, Scotland and Switzerland.

The German government had refused to get involved in Mr. Puigdemont’s case, insisting that it belonged in the hands of the justice system. After the court’s decision was announced, the German Foreign Ministry declined to comment.

Rafael Catalá, the Spanish justice minister, said the decision “demonstrates the functioning of an independent judiciary, here in Spain, in Germany and in all the countries of the E.U.”

Mr. Puigdemont was arrested on March 25 as he crossed Germany from Scandinavia on the way to Belgium, where he had fled in October after a failed effort by separatist lawmakers in his northeastern region to declare independence from Spain.

The Spanish Supreme Court is seeking his arrest on charges of rebellion and embezzlement of public funds linked to Catalonia’s Oct. 1 referendum on whether to secede.


Messages in support of Mr. Puigdemont left outside the prison in Neumuenster, Germany, where the former Catalan leader is detained.

Jens Schlueter/EPA, via Shutterstock

Prosecutors in Germany had asked the regional court to place Mr. Puigdemont in custody after having examined a Spanish arrest warrant and finding it to have an equivalent in German law — one of several requirements before extradition can take place.

Although the term “rebellion” does not have a direct equivalent in German law, the prosecutors said that it “contains at its core the allegation of carrying out an unconstitutional referendum despite expectations of violent disturbances.”

But the court rejected that view, finding that “the conduct with which he is charged would not be prosecutable in Germany under German law.” The threat of violence would have had to pose a more direct threat to the government, the judges said.

In an interview with opposition German lawmakers given on April 2 from the prison in Neumünster where he was detained, Mr. Puigdemont denied that he had promoted violence and insisted that all of the money used to pay for the October referendum was generated through donations.

He also said in the interview that he had been overwhelmed by offers of support from Germans, many of whom offered him a place to stay if he remained in the country.

Mr. Puigdemont will not be allowed to leave Germany under conditions of the bail and must check in once a week with both the police and prosecutors, the court said.

Several politicians and officials from Catalonia’s pro-independence movement welcomed the ruling as a clear victory.

Josep Costa, a lawmaker from Mr. Puigdemont’s party who recently visited him in prison, said it showed that “there’s justice in Germany,” and he called for “freedom for political prisoners.”

Antoni Castellà, another Catalan politician, called it “an astronomic slap in the face for the Spanish state.”

Catalonia remains in a political deadlock over five months after Prime Minister Mariano Rajoy used emergency constitutional powers to oust Mr. Puigdemont’s administration and place the region under direct rule from Madrid. Separatist lawmakers have struggled to form a new administration after retaining their narrow parliamentary majority in a snap election in December called by Mr. Rajoy.

Hours before the German court ruling, Mr. Puigdemont’s party announced that it would make another effort to elect Jordi Sànchez as Catalonia’s leader. He is among the separatist leaders who have been held in prison in Madrid, after being denied bail, ahead of their trial.

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Editorial: The Catalonia Dispute Ensnares Germany


Protesting the arrest of Carles Puigdemont, the former leader of Catalonia, in Barcelona, Spain, on Tuesday.

Santi Palacios/Associated Press

Much as the Spanish government would like to portray the case against Carles Puigdemont, the former leader of Catalonia, as purely a criminal matter, his arrest in Germany on Sunday on a Spanish warrant has pushed the bitter struggle over Catalan independence into a far broader and distinctly political arena.

In response to questions about the arrest, the Spanish government declared that it does not interfere with judicial decisions, and that the Supreme Court is seeking to put Mr. Puigdemont on trial not for his pro-independence ideas, but for rebellion and misappropriation of public funds (that his Catalan regional government used to organize a referendum on independence last October that Madrid ruled unconstitutional).

That is not the full story, however, as witnessed by the Catalan crowds that have taken to the streets upon news of Mr. Puigdemont’s arrest. Madrid’s relentless and heavy-handed response to the Catalan independence movement, starting with the riot police deployed to forcefully, and sometimes violently, disrupt the referendum last October and continuing with charges of rebellion (which in Spain means actual use of force and carries a penalty of up to 30 years in prison) against Mr. Puigdemont and 12 other leaders of the independence movement, is hardly the way to win the hearts and minds of the Catalans or the support of other Europeans.

So long as Mr. Puigdemont stayed in Belgium, where he took refuge after fleeing Spain, Madrid left him alone. But when he went on the road over the weekend, Spain issued an arrest warrant and tipped off German police, who arrested Mr. Puigdemont as he was driving through northern Germany.

That effectively dragged Germany, Europe’s giant, into the fray. Under the European arrest warrant used in the European Union, Germany is required to transfer Mr. Puigdemont to Spain within 60 days. But the warrant requires that the Spanish charges have German equivalents. Misappropriation of public funds does, but “rebellion” is only vaguely similar to “high treason” in the German penal code. That’s a tough one to apply to a democratically elected official who never resorted to force, and the German courts can decide to transfer Mr. Puigdemont on the condition that he not be tried for rebellion.

The Spanish government is fully within its rights to defend its unity and its constitution. And European states are right to give the Catalan secessionists no support. But now that Berlin has been thrust into the dispute, it would do well to tell Madrid that treating the ill-conceived Catalan independence drive as treason gives the movement a moral authority it does not warrant. A conciliatory gesture toward Catalonia would do far more to defuse a confrontation that has gone too far.

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Arrest of Catalan Leader Tests Spain, Separatists and E.U.

The Spanish authorities have accused Mr. Puigdemont of rebellion and misuse of public funds, and a German regional court will decide within 60 days whether to send him back to face trial. But if the court chooses to extradite him only for the corruption charge, that would create a political and legal bind for the Spanish government, which would be barred from trying him for rebellion, the charge at the heart of the matter.

“Spain is creating a situation where Europe’s judges rather than its politicians are being asked to solve Catalonia,” said Sergi Pardos-Prado, a professor of politics at Oxford University. “At a time when the European Union needs more legitimacy and to reconnect with its citizens, how can this not make it seem like a distant and technocratic project?”


The prison in Neumunester, Germany, where the former Catalan leader, Carles Puigdemont, is detained. A regional court will decide within 60 days whether to extradite him to stand trial in Spain.

Jens Schlueter/EPA, via Shutterstock

On Monday, Gonzalo Boye, a lawyer who represents two of the politicians wanted by Spain, told the Spanish news media that he was confident a foreign judge would not allow his clients to stand trial for rebellion. He even asked whether “Judge Llarena isn’t our best friend, because things are being handled in the worst possible manner.”

Mr. Puigdemont’s arrest has thrust Catalonia back onto the European agenda, potentially testing relations between Germany and Spain, after European governments had mostly managed to ignore the separatists’ political aspirations. The case also raises questions about whether Europe has a unified conception of the rule of law, and how it will respond to other secessionist movements.

Madrid is also seeking the arrest of other Catalan separatists who are in Scotland, Belgium and Switzerland, where officials have so far questioned whether their legal systems require the separatists’ extradition based on the rebellion charges brought by Spain. Mr. Puigdemont himself had been based in Belgium, where the European Union is headquartered, since late October. While Belgium never considered him a flight risk, a German judge has ordered that he should be provisionally kept in prison for that very reason.

The arrest comes at a particularly combustible time for the European Union, which is coping with Britain’s pending exit from the bloc, a right-wing populist upheaval in Italy, growing labor unrest in France, frictions between Brussels and the increasingly authoritarian governments of Hungary and Poland, and a growing clash with Russia.

It is also a difficult time for the Catalan separatists, who appear to be running out of options within the country’s political framework. After a botched declaration of independence in October, and new regional elections, the three separatist parties have been unable to resolve disputes among them and elect a new Catalan president.

Mr. Puigdemont and other separatists claim that Spain cannot give them a fair trial. That accusation is dismissed in Madrid as yet another affront by politicians who have repeatedly flouted court rulings in their drive toward independence.

“We can debate the specific approach of the prosecution and the judges, but there are strong legal grounds for this case,” said Enrique Gimbernat, professor of criminal law at Complutense University in Madrid.


Protesters and police officers in Barcelona on Sunday. The risk for Spain of trying Mr. Puigdemont is that the case could galvanize the separatist movement in Catalonia.

Lluis Gene/Agence France-Presse — Getty Images

Still, several Spanish legal experts acknowledge that state prosecutors are pushing the Supreme Court into uncharted waters. They also note that, however many Catalan politicians are tried and convicted, imprisonment is not a viable alternative to a political solution that Mr. Rajoy has failed to reach.

Mr. Rajoy dissolved the parliament of Catalonia, which represents one-fifth of the Spanish economy, and called new elections in December, which served only to confirm the profound split in Catalan society. Mr. Puigdemont and other separatists retained their narrow parliamentary majority, with almost exactly the same share of votes — 47.5 percent — as two years earlier.

“It seems absolutely counterproductive to use criminal law and this court to solve a politico-constitutional conflict,” said José Antonio Martín Pallín, a former judge of the Supreme Court.

Since Friday’s court decision in Madrid, protesters have been back on the streets of Barcelona and other cities. Roger Torrent, the pro-independence speaker of the Catalan Parliament, is pushing for lawmakers to elect Mr. Puigdemont in absentia, though the former president has recently said he is no longer a candidate; opposition lawmakers want Mr. Torrent to resign, instead.

Separatist lawmakers have two months to form an administration or force new elections.

“Puigdemont’s arrest does not bridge the divisions between secessionist parties over what to do next,” Antonio Barroso, a political analyst at consulting firm Teneo Intelligence in London, wrote in a note on Monday.

The politics of Spain have also shifted: Mr. Rajoy now leads a minority government, and his center-right People’s Party finished last in the Catalan election. He risks being outflanked by a center-right party, Ciudadanos, that was founded on an anti-secession platform and won the most votes in Catalonia in December.

“One can be critical of the leaders on both sides and how they have handled every part of this conflict, but I don’t think this should be seen through the lens of a conflict between the rule of law and democracy,” said Alan Solomont, a former United States ambassador to Spain who is now dean of the Tisch College of Civic Life at Tufts University. The better lens, Mr. Solomont argued, was that “Catalonia is a region, subject to the Spanish Constitution of 1978, and a national government always has the right to enforce national law.”


Supporters of Catalan independence protesting in Barcelona on Sunday. Separatists, split into three parties, retain a majority in the regional Parliament but have been unable to resolve disputes and elect a new Catalan president.

Felipe Dana/Associated Press

In 2014, Catalonia’s government defied Madrid by staging a nonbinding vote on independence. Catalonia’s leader at the time, Artur Mas, was later barred from office for organizing an unconstitutional vote.

In October, Spain’s attorney general decided to prosecute Catalan leaders for rebellion, though Spain’s legal code had been revised to emphasize violence as a component of rebellion. The crime carries a maximum prison sentence of 30 years.

The Spanish authorities are also widening the investigation, looking into Catalan media executives and officers in the region’s autonomous police force, and raiding offices in search of evidence linked to the referendum last October. So far, their findings fill 15,000 pages of police reports.

Javier Ortega, a leader of Vox, a small far-right party, described the drive for Catalonian independence as ”a failed coup d’état, led by people who had already set up all the structures of a parallel state.”

Vox is a fringe party. But in his ruling last week, Judge Llarena drew a thinly veiled comparison between last year’s events in Catalonia and an aborted military coup in Spain in 1981.

Mr. Puigdemont, who had traveled to Finland, left that country on Friday, driving across Scandinavia, with officers of Spain’s secret service following him. He was detained after crossing into Germany, whose criminal code, Spanish authorities believe, will allow for his extradition.

Christian Mölling, the research director of the German Council on Foreign Relations, said he saw no reason Mr. Puigdemont would not be extradited to Spain.

“If we pass this onto politics, it would be a declaration of bankruptcy for the judiciary,” he said. “We have courts precisely to depoliticize things.”

Correction: March 27, 2018

Because of an editing error, an earlier version of this article misstated the sentence given to Artur Mas. He was fined 36,500 euros and barred from holding public office for two years, but not imprisoned.

Correction: March 27, 2018

Because of an editing error, an earlier version of this article misstated the given name of Spain’s prime minister. He is Mariano Rajoy, not Mario.

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