Reminds me of that joke about a Spanish judge, a German judge, and a Belgian judge… sorry, a Scottish judge… no, a Swiss judge…
More
seriously, this is not really a question. It is quite rhetorical,
really barely disguised delight over the fact that the fugitive
separatists - including Carles Puigdemont - have not yet been
extradited, as well as an overwrought effort at squeezing propaganda
value out of that.
Nevertheless, let us take
this question and answer it in a serious manner. After all, there are a
few things that can be learned from the proceedings in regards of the
extradition efforts.
The European Convention on Extradition
The first
lesson is NOT to automatically conclude or assume that something must
be wrong with the Spanish extradition request because the various courts
have so far refused to extradite the fugitives.
One should observe that Germany, Belgium, Scotland (as part of Great Britain), Switzerland and Spain are sovereign countries
with their own, native legal traditions. They have their own legal
understanding for terms such as treason, sedition, and rebellion.
Each
of these traditions are different - sometimes substantially so - from
each other. This comes naturally as law is a product of local historical
developments.
Signally, in the matter of
extradition, not one single European country has in any fundamental way
surrendered the primacy of their native legal traditions or the
sovereign powers of their governments.
This is abundantly evident
when one reads the European Convention on Extradition (ECE). Article 2
sub 1 ECE states that “extradition shall be granted in respect of
offences punishable under the laws of the requesting Party and of the requested Party…”
So one of the key requirements of extradition under the ECE is that the
two jurisdictions involved in the extradition proceedings must agree on
whether an act is punishable in both jurisdictions. If not the deal is
off.
This is what has essentially happened.
An
example of this is the manner in which the German court declared the
charge of corruption admissible, while ruling that the charge of
rebellion was not actionable under German law. According to German law, a
person can be extradited only if charges against him or her are
punishable in Germany.
This was hardly a
victory for Puigdemont - though that is of course exactly the way he
spun it in the press - because, if extradited for corruption, he could
still face up to 8 years in jail. That is not the kind of victory I would feel proud of.
Frankly,
it makes him sound like a braggart that got whipped, but being himself -
a loudmouth, what else - cries victory because he has managed to land a
few blows on his opponent.
Strictly taken, at this stage Mr Puigdemont owes his condition of liberty more to
the approach of the Spanish court than to any ‘victory’ in the German
court: the Spanish court dropped the charges in the German court as a
matter of principle, given their focus on the charge of rebellion. When
one’s enemy is that principled one should never feel safe. It it not
exactly an invitation of come home.
Legal Tradition
Looking
at the legal traditions of the countries involved, it is by now clear
that Spain appears to have a more severe and wide-ranging interpretation
of the concepts of rebellion, sedition and treason, than the other
countries.
This does not mean that there is something wrong with Spain’s definition of these concepts.
What
people overlook is that Spain has a far more turbulent history than
many other European countries in terms of civil strife and political
instability.
In no
other country in Europe has government authority been challenged so
often, so thoroughly, and in so many ways, and more so precisely at the
time in history (i.e., the last 200 years) when today’s modern legal
systems and traditions came into existence.
Spain
in this respect is truly an outlier beyond anything that other European
countries have experienced. Spain has suffered an endless number of
mutinies, rebellions, the three Carlist Wars, the pronunciamentos, plus
revolutions. Importantly, challenges to authority grade from non-violent
but nevertheless destabilizing forms to the bloodiest types of
savagery.
Neither Germany, nor Belgium, or
Scotland or Switzerland have a history of government authority being
challenged on the scale that Spain has experienced.
Legal
traditions are to a significant extent shaped by a nation’s history.
Different historical experiences and circumstances will result in
differences between legal traditions.
I strongly
suspect that Spain’s turbulent past may have substantially influenced
its legal philosophy and traditions in respect of such concepts as
treason, rebellion, and sedition, causing legal thought on these to
diverge substantially from that of other European nations. Legal systems
everywhere tend to be most severe on those types of crime that occur
more frequency or with greater impact.
What did not happen
We must first admit that the efforts at extradition have not been very fruitful.
That said, the various extradition proceedings also reveal something that should worry the separatists.
The separatists have made the claim that the efforts at extradition would cause a violation of their human rights.
In all
cases so far, the basis for rejection of extradition requests has been
admissibility under local law of the charges included in the extradition
requests.
Not one of the legal systems of
the requested party countries have pronounced the efforts at extradition
to be in violation of the human rights of the accused parties. By arresting Puigdemont, German authorities actually signaled that the extradition request is in good order. The
German judiciary reinforced this signal by ruling that the deposed
Catalan leader can be extradited to Spain on the charge of misusing
public funds.
Importantly, the extradition
proceedings did not provoke any outcry abroad. It also did not result in
international pressure on the Spanish courts to drop the charges. There
are no international bodies or institutions anywhere in the world that
have pronounced on the extradition request as causing a violation of the
human rights of the accused. None of these bodies or institutions are
questioning the legitimacy of the Spanish court’s proceedings.
Finally,
another thing that did not happen is that the discomfiture of the
extradition proceedings did not cause a shift in the official positions
of any government on the matter of Catalan separatism.
Conclusion
In the final analysis, Catalan separatism isn’t really benefiting from the discomfiture of the extradition proceedings.
x*x*x
Post Scriptum
The
question above could be understood as casting doubt on the
appropriateness or legitimacy of the proceedings by the Spanish courts
against the leaders of the Catalan separatist movement. I have
extensively written on the topic of Catalan separatism with the
objective of demonstrating the contrary. To that effect, please find
below three of these that may be of particular relevance to the topic
above:
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