Catalan separatist Carles Puigdemont has been arrested in Italy while traveling from Finland. He was detained by police on the charge of “rebellion” for his role in Catalonia’s independence referendum last October 1, which Spain deems illegal. The arrest comes after a European warrant issued by Spain to Belgian authorities…
Puigdemont should be extradited to Spain, where he might face up to 30 years in prison. He is expected to bring his legal battle up to the European Union Court of Justice (ECJ) and may very well win this case at first instance, like all other political cases that end up there.
As the ECJ declared in 1993 in the famous case of “Costa v ENEL”, EU law precludes “any deprivation of liberty” which is disproportionate to the offense committed.
This principle was used in 2014 by former Catalan President Artur Mas when he appealed before the Spanish Constitutional Court the prohibition, by an order of Spain’s public prosecutor, to convene a non-binding independence referendum in Catalonia, which was deemed contrary to the Constitution.
The Constitutional Court (CC) annulled the public prosecutor’s order, but it is important to note that, prior to this judgment, it didn’t even ask the ECJ about the validity of Mas’ appeal; It simply assumed that an order to ban a referendum was proportionate and reasonable.
The reason: Nobody should be deprived of his freedom for holding a political opinion, but the prohibition on calling referendums is not so considered because it can’t lead to deprivation of liberty. It follows that if Artur Mas had called such a referendum, he would have been “lawfully” deprived of his freedom for having done so, solely because of the political opinion he expressed.
Puigdemont should not be extradited to Spain, where he might face up to 30 years in prison
Naturally, the same principle applies if someone is detained for organizing a referendum that — unlike Mas’ one — is considered illegal.
There is thus no doubt that if Puigdemont was “lawfully” detained in Spain just for having organized the referendum, he cannot be legally deprived of his freedom merely for expressing a political opinion.
Therefore, if he is extradited to face charges for “rebellion”, the Spanish judiciary should take into account — as the Constitutional Court should have done in the case of Artur Mas, or at least asked about it to the ECJ — that Puigdemont cannot be deprived of his freedom for holding a political opinion.
The Spanish judge should remember what former Spanish Constitutional Court president Francisco Pérez de los Cobos said in an interview to EL PAÍS about the case of Inés Arrimadas, leader in Catalonia of Ciudadanos (Citizens), a Spanish political party opposed to the Catalan independence movement.
Inés Arrimadas could have been charged with “rebellion” for having called, as a representative of her political formation, for civil disobedience. However, in order to avoid the case being dismissed by the Spanish Constitutional Court before even having started, in April 2018 Pérez de los Cobos admitted that “it is not in citizens’ interest” for Arrimadas to be charged with rebellion because, he said, “if she were convicted, she would lose her political rights forever”.
Puigdemont should enjoy the same rights as Ines Arrimadas, because he is also a representative of a Spanish political formation. Besides, it would be absurd for Puigdemont to be “lawfully” imprisoned in Spain just for having expressed his political opinion in Catalonia, when at present he enjoys freedom of expression in Belgium, where he was detained in accordance with the law.
This is why, if Puigdemont is extradited to Spain for “rebellion”, the Spanish judiciary should make sure to take into account that this principle applies in his case, given that he wasn’t deprived of his freedom for having held a political opinion (he is now free in Belgium just as Inés Arrimadas is in Spain). Otherwise, the extradition wouldn’t be legal.
Puigdemont should not be extradited to Spain where he may have to face up to 30 years in prison
In addition, if Puigdemont were extradited for “rebellion”, his detention could only be lawful if he was legally deprived of his freedom for having committed a crime. However, the Spanish judge should remember that this principle applies not only to Puigdemont but also to everyone in Spain.
There are two legal cases that unequivocally highlight the principle that nobody can be deprived of their freedom for merely holding a political opinion, even if it is considered a crime in Spain.