The error of the State Attorney regarding Llarena’s position facilitated the arrest of Puigdemont

The State attorney assured the CJEU that the procedure ordered by the Supreme Court judge Pablo Llarena was suspended by virtue of the preliminary ruling raised by him on March 9 after the decision of the Belgian judges to deny the surrender of former counsel Lluis Puig , a decision that Llarena considers incompatible with EU law.

The State attorney incurred a second confusion: she also assured the CJEU that the arrest and surrender orders (OEDE) were also suspended while the CJEU responds on the preliminary question.

In reality, neither the process against Puigdemont nor the OEDE are paralyzed, as Llarena reported last Friday to the Italian judicial authorities. The best proof of this is that the Sardinian Police detained Puigdemont after verifying that the arrest warrant issued by Llarena against him on October 14, 2019 was active in the Schengen System.

The double error of the State attorney could not be corrected by the Supreme Court, which is not a party to the procedure in which the mistake occurred. This is a lawsuit by Puigdemont against the European Parliament in which the decision to grant the request to act against him for his responsibility in the unilateral independence process that he wanted to impose in Catalonia is challenged.

The Supreme Court does not intervene in that lawsuit, which can say nothing. The parties are the former Catalan president and the European Parliament. The Kingdom of Spain, through its agent (the State attorney) intervenes as an adjunct to the European Parliament. But the agent of Spain does not speak on behalf of the Supreme Court nor does she represent the judicial body.

Immunity

The granting of the request made by Llarena led to the withdrawal of Carles Puigdemont from the immunity he enjoys as a MEP for the sole purpose that he can be delivered and tried in Spain for the crimes of sedition and embezzlement for which they have already been Other people in charge of the Catalan ‘procés’ have been sentenced.

For this reason, Puigdemont asked the Court of Justice of the European Union that, until it issues a ruling on the correction or not of the granting of the request, it agree to maintain his immunity in a precautionary manner in order not to be detained by virtue of the issued OEDE by Judge Llarena.

On July 30, the CJEU denied the precautionary measure requested by Puigdenmont in order to be immune from the OEDE of the Supreme Court. The decision was made on the basis of the information – doubly wrong – provided by the representative of Spain.

The State Attorney’s Office was referred to in the CJEU resolution when it stated that “the Spanish authorities expressly indicated that this request [la cuestión prejudicial de Llarena sobre el rechazo de Bélgica a entregar a Lluis Puig] it involved the suspension of national arrest warrants against the plaintiffs and involved the suspension of any enforcement proceedings for a European arrest warrant that might be initiated. They also stressed that no Union court could execute the European arrest warrants in question until the CJEU has ruled. “

Contradiction

The CJEU resolution, however, contained certain contradictions, since at the same time it admitted that “Spain [el Tribunal Supremo] it has not withdrawn the descriptions of the arrest for the handover of the Schengen Information System. “If the Schengen alert is active, Puigdemont could be detained, as has happened.

In any case, the mistake of the State attorney before the Luxembourg Court, far from benefiting Puigdemont, it harmed him, because the CJEU denied the request to restore the immunity lost after the granting of the request as a precautionary measure.

The error has now been asserted by the defense of Puigdemont before the courts of Sardinia and will be revealed again before the CJEU in a new request for precautionary measures so that his immunity is provisionally restored, a request that will be formalized in the next days.

A based confusion

In any case, the confusion of the State attorney had a basis. The CJEU issued in 2016 a recommendations to the national courts on the questions referred for a preliminary ruling. The document indicates that the raising of a question of this type should paralyze the national procedure that originates it.

In fact, this is usually the case: the judges of the EU countries usually suspend the pending processes of a preliminary question until the CJEU resolves it.

But this suspension is not provided for in any regulation or law and is not mandatory. Llarena has not agreed at any time to paralyze the ‘procés’ (pending multiple implicated who are fled in different places) and his brief raising the question for a preliminary ruling did not include the agreement to suspend the instruction of the ‘procés’, as the Abogacía del State and the CJEU itself could have verified.

In any case, in the hypothesis that Llarena had suspended the investigation, the OEDE could have continued active and, therefore, protecting the arrest of Puigdemont or any other fugitive from the ‘procés’.

This is so because the mentioned recommendations of the CJEU indicate that the national judicial body that raises a preliminary question “remains competent to adopt precautionary measures”. Among them, the arrest of a fugitive.

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