German court’s Puigdemont ruling a major blow for Madrid

A German court’s refusal to extradite Catalonia’s former president on a rebellion charge deals a major blow to Spain’s legal action against separatists and to Prime Minister Mariano Rajoy’s government.

“The consequences are really huge,” said Josep Ramoneda, a Catalan philosopher and political analyst.

“This a serious setback for the judiciary and particularly for Rajoy, and a boost for the pro-independence movement.”

– Rebellion out –

Spain last month issued an arrest warrant for Carles Puigdemont on charges of rebellion, an offence that carries up to 30 years in jail, and misuse of public funds for his role in the failed secession bid last October.

Puigdemont, who has lived in self-imposed exile in Belgium since then, was subsequently arrested as he travelled to Germany.

Then on Thursday, a German court freed him on bail, announcing they would not send him back to Spain on the rebellion charge as he was not personally involved in violence during the referendum on Catalan independence.

That made his actions not punishable under German law, the judges said in a statement, rejecting prosecutors’ argument that the Spanish “rebellion” charge was similar enough to Germany’s “high treason” statute to justify an extradition.

German judges still have to decide whether or not they will consent to an extradition on the lesser charge of misuse of public funds.

But even if they do, the fact that they have dismissed rebellion means Puigdemont will not be able to be tried in Spain on a charge that several Spanish law professors and rights groups had already dismissed as extreme.

– Puigdemont comeback? –

According to constitutional law professor Xavier Arbos, the German court decision “could be used as a reference” by other countries like Belgium, Switzerland and Britain, where other separatists also charged with rebellion have fled since the failed secession bid.

The nine separatists currently in custody in Spain on charges of rebellion will also be able to use this in their defence, arguing that the man who led Catalonia to the verge of secession cannot be prosecuted on lesser charges than them.

And lastly, it also means Puigdemont could seek a comeback as Catalan president, even more strengthened than before, said Arbos.

Indeed, under Spanish law, a person charged with rebellion is immediately banned from holding public office, but other lesser offences allow this until an eventual sentence.

He could try and do this if Germany extradites him to Spain, banking on the fact that he might avoid custody if he faces only the lesser charge of misuse of public funds.

– Why the controversy? –

While the Germans have got their first taste of the controversy over the rebellion charge, the debate has been going on in Spain for months.

Some 100 criminal law professors signed a manifesto in the autumn saying that using the rebellion charge was extreme, given there had been no physical violence during the secession bid.

But Supreme Court Judge Pablo Llarena, in charge of the case, counters there was, pointing to two events in particular.

One was a protest on September 20 in Barcelona in front of a government building that police were searching ahead of an upcoming independence referendum that was set to go ahead despite a court ban.

Some police cars were damaged and the agents themselves blocked from leaving the building for hours.

The other was separatists’ resistance to police as these were trying to empty polling stations used for the referendum on October 1.

That day, however, was also marked by police violence that caused dozens of injuries.

According to criminal lawyer Xabier Etxebarria, these events spark more of “serious disobedience” than rebellion.

As such, the Supreme Court’s decision to prosecute some separatists for rebellion has raised rights concerns.

The association “Judges for Democracy” said it risked impacting people’s “fundamental rights” such as the right to protest, said spokesman Ignacio Gonzalez Vera.

– What could the court do now? –

Llarena could just drop the arrest warrant altogether, as he did once before in December when Puigdemont was in Belgium, fearing that the rebellion charge would be dismissed.

He could also widen the charges brought against Puigdemont, adding for instance sedition, which may be more acceptable abroad.

He could also ask the EU court of justice to rule on the issue.

– Rajoy in trouble again –

On Friday, newspaper editorials denounced inaction on the part of Rajoy and his government, which have been accused of standing by and refusing to talk to Catalan separatists, while letting the courts deal with the issue.

“The courts are in this extremely awkward situation because Rajoy gave them a responsibility that was his,” said Ramoneda.

Even Spain’s conservative ABC daily concurred, calling on the government to stop handling the case as an issue merely for the “judges”.