Saturday, December 4

Llarena clarifies to the Italian judge that Puigdemont’s surrender order is still in force and that he has no immunity


Madrid

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Four days after the appearance of former president Carles Puigdemont before the Italian judge who has to decide on the delivery of the fugitive, Supreme Court judge Pablo Llarena has sent a letter to the magistrate in which he reiterates, as he did last Friday, that the order issued in its day is in force and that at no time, as reported by ABC, has been suspended due to the presentation of the question for a preliminary ruling before the Court of Justice of the European Union that only affects the procedure initiated in Belgium, not in the rest of the countries.

In an official letter sent this Thursday to the representative of Spain in Eurojust, he transferred to the court of appeal of Sassari (Italy) the order in which he agreed to the provisional imprisonment of the former president of the Generalitat and with which he supported the euro order issued on October 14, 2019 against him. What’s more, expands the information regarding Puigdemont’s request for delivery file, underlining that the fugitive currently lacks parliamentary immunity when the General Court of the EU rejected on June 30 the precautionary measures requested by his defense and that it intended to reactivate his immunity on a provisional basis.

Possibles scenarios

The letter concludes by requesting that the Italian judicial authority immediate delivery of the detainee to the Spanish jurisdiction, in order to continue the processing of the procedure. Alternatively, in the event that Puigdemont once again claimed before the TGUE the precautionary recovery of his immunity and assuming that it was granted, something unlikely before October 4 (since that precautionary brief has not yet been presented), the judge asks the Italian judicial authority to suspend the processing of the delivery process now initiated, but adopting the necessary measures to guarantee that the material conditions necessary for an effective delivery continue to be met when Carles Puigdemont has ceased to enjoy the privilege or immunity (article 20 of the Framework Decision).

For the opposite case, that is, in the event that the withdrawal of the currently prevailing immunity is maintained, and only in the event that the Italian court understands that the answer to the preliminary question may condition its decision, the examiner indicates the possibility that the Italian judicial authority will freeze the execution procedure until the CJEU rules, underlining that this is the position that Belgium has followed.

Given the null defense of the interests of Spain by the Executive, the judge’s movement neutralizes certain information from the fugitive’s environment that point to the suspension of the Euro-orders as a result of that prejudicial question or that the former president enjoys immunity to move freely.

The judge refers to point 25 of the CJEU Recommendations to the national courts, regarding the raising of preliminary questions, which, as ABC reported on Monday, points out that the presentation of a preliminary question entails the suspension of the national procedure until the Court of Justice rules. But it goes on to underline that the adoption of precautionary measures is in the hands of the national court.

Llarena states that Puigdemont’s prison order, which was adopted in this procedure on October 14, 2019, as well as the subsequent European Arrest Warrant, “has an indisputable precautionary nature. They are decisions that serve to ensure that the escapee remains at the disposal of the Justice and a prosecution that – until now – has been prevented by the escape can be addressed». And for this purpose of assuring the process, it states that after the presentation of the preliminary question “it has not issued any decision that modifies or suspends the precautionary measure.”

The letter indicates that Puigdemont was accredited as a member of the European Parliament on January 6, 2020 and as such acquired the immunity and other privileges established in article 9 of the Union Protocol. It was four days later when the investigator of the case asked the European Parliament to suspend his immunity.

During the parliamentary processing of this petition, given that Puigdemont held immunity, the Belgian judicial authority was informed of the privileged situation that he enjoyed and the procedure for the execution of the euro order was suspended in accordance with article 20 of the Framework Decision.

On March 8, 2021, the European Parliament suspended Puigdemont’s immunity and, once the decision was communicated to Judge Llarena, he informed the Belgian enforcement authority of the withdrawal of immunity, in order to resume a suspended surrender procedure for that reason.

It was at this time that, on the occasion of the enforcement proceedings initiated in Belgium under the BEDs issued against Puigdemont, Antoni Comín and Lluis Puig, on March 9, 2021 he raised the question for a preliminary ruling which, he emphasized, ‘does not affect the validity of the precautionary measure of imprisonment or of its search and capture “.” It refers to the interpretation of Union law on certain aspects for which judicial collaboration may be denied between Member States “, he clarifies.

Given the presentation of the question for a preliminary ruling before the CJEU, the judge recalls, the Belgian judicial authority agreed to paralyze and suspend the surrender procedures that were underway in that country and to do so until the CJEU fixes the interpretation of Union law on these issues.

The State Bar is not a judicial body

In turn, against the decision of the European Parliament to withdraw the privilege of immunity to Puigdemont, he filed a lawsuit before the General Court of the European Union (TGUE).

The Judge recalls that the plaintiffs are Carles Puigdemont, in addition to Antoni Comín and Clara Ponsatí, and that in defense of the interests of Spain the State Attorney intervenes, which It is not, Llarena clarifies, a judicial body that depends on the Ministry of Justice.

In this procedure, on July 30, 2021, the vice-president of the TGUE issued an order in which he rejected Puigdemont’s request that the decision of the European Parliament to withdraw his immunity be provisionally suspended, that is, he ordered to maintain the withdrawal of the immunity pending a substantive decision.

With this, the Judge synthesizes, Puigdemont continues to lack immunity, unless it once again asks the TGUE for its precautionary concession and it is granted; a possibility that the TGUE admits as procedurally viable.

Llarena also clarifies in relation to the intervention of the legal services of the State before the TGUE that, as it seems to be reflected in the resolution, the State Attorney of the Kingdom of Spain informed the Court that the BEDs issued by this Instructor were suspended. As has been said, that is not so. The decision to suspend a precautionary measure that was executive since 2019, is a decision of this instructor (Recommendation 25) and has never been adopted ”.

The magistrate adds that “this situation would not be unknown to the State Bar, since it is a party to the criminal procedure that is followed before the Supreme Court of Spain. As said in point 5, The State Lawyers have never been notified of a possible decision to suspend the OEDs, nor has the State Lawyers promoted such a decision to take place.

“Information mismatch”

Considering that the Supreme Court does not have intervention in the procedure before the TGUE and that the State Lawyer does, since the Kingdom of Spain is coadjuvant with the European Parliament in this process, the Llarena refers to the information provided by the Lawyers of the State and explains to the Italian judicial authority that, “this information mismatch could explain the inaccuracy that appears in part of the resolution regarding the validity of the BEDs. of the TGUE of July 30, as it was not possible to provide the information from the judicial authority that is responsible for deciding on the subsistence of the precautionary measures for the resolution.

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