The Eu As Well As The Spanish Constitutional Crisis

Cecilia Rizcallah, Research Fellow at the Belgian National Fund for Scientific Research affiliated both to Université Saint-Louis Bruxelles as well as Université libre de Bruxelles

Background

Spain is facing, since to a greater extent than than a calendar month now, a constitutional crisis because of pro-independence claims inwards Catalonia. These claims resulted inwards the asset of an independence plebiscite on 1 Oct 2017, organized yesteryear the Castilian autonomous community of Catalonia’s authorities, led yesteryear its President Mr. Carles Puigdemont. According to Barcelona, 90% of the participants voted inwards favor of Catalonia’s independency on a turnout of 43%.

Several weeks earlier the asset of the referendum, the Castilian Constitutional Court held that such plebiscite was reverse to the Castilian Constitution, as well as it was thus declared void yesteryear the same Court. The Castilian key Government moreover firmly condemned this human activeness as well as suspended Catalonia’s autonomy, on the set down of Article 155 of the Castilian Constitution which allows the key Government to adopt “the necessary measures to compel regional authorities to obey the law” and, thereby, to intervene inwards the running of Catalonia.

EU’s Incompetency inwards Member States’ Internal Constitutional Affairs

During these events, a contributor to the New York Times wondered “Where is the European Union?”. The Guardian stated “As Catalonia crisis escalates, European Union is nowhere to hold upwards seen”. European Union authorities’ restraint tin yet easily hold upwards explained, at least, from a legal bespeak of view. Indeed, the European Union has inwards regulation neither the competence, nor the legitimacy, to intervene inwards its Member States’ internal constitutional affairs. Article 4.2 TEU incidentally underlines that the European Union shall abide by Member States’ “national identities, inherent inwards their fundamental structures, political as well as constitutional, inclusive of regional as well as local self-government” as well as that it “shall abide by their essential State functions, including ensuring the territorial integrity of the State, maintaining police as well as monastic enjoin as well as safeguarding national security. In particular, national safety remains the sole responsibleness of each Member State”. The President of the Commission, J.-C. Junker stated that it was “an internal affair for Kingdom of Spain that has to hold upwards dealt alongside inwards work alongside the constitutional monastic enjoin of Spain” but nonetheless noted that inwards illustration of separation of Catalonia from Spain, the part would consequently “find itself exterior of the European Union”. 

Puigdemont’s  Departure for Brussels

Theoretically, the European Union has thus no legal standing to intervene inwards the Castilian constitutional crisis. Recent events have, however, brought the European Union incidentally on stage.

Mr. Puigdemont, the deposed leader of Catalan authorities, left Barcelona for Brussels several days ago, where he declared he was non intended to attempt asylum as well as that he would homecoming inwards Kingdom of Spain if judicial authorities as well as then request, provided he was guaranteed weather condition of a fair judicial process. In the meanwhile, the State prosecutor decided to get proceedings against Mr. Puigdemont as well as other officials of the ousted Catalan regime for rebellion, sedition as well as embezzlement as well as demanded to the approximate inwards accuse of the processing charges to number a European arrest warrant (hereafter EAW) for Mr. Puigdemont as well as 4 other members of his one-time cabinet, after they failed to seem at the High Court hearing final Thursday.  The EAW was issued yesteryear the Castilian approximate final week. European Union police has thus been relied upon yesteryear Castilian authorities to answer to its internal crisis, because of the divergence of several Catalan officials to Brussels, which constituted, at the outset at least, goose egg to a greater extent than than a lawful practise of their costless motility rights inside the Schengen area.

Mr. Puidgemont as well as the other people discipline to a EAW presented themselves to Belgian authorities, which decided to liberate them upon several weather condition including the prohibition to move out the Belgian territory. H5N1 Belgian Criminal Chamber has equally of at nowadays ii weeks to create upwards one's heed if they should hold upwards surrendered to Kingdom of Spain or not.

The Quasi-automaticity of the European Arrest Warrant System

According to Puidgemont’s here). In that respect, the lawyer of the other Catalan ministers who are already inwards jail has lodged a complaint for mistreatment of them, but to a greater extent than elements volition hold upwards required to pass upwards the execution on the EAW on this basis.

Indeed, according to the Court of Justice, “the executing judicial authorization must, initially, rely on information that is objective, reliable, specific as well as properly updated on the detention weather condition prevailing inwards the issuing Member State as well as that demonstrates that at that topographic point are deficiencies, which may hold upwards systemic or generalised, or which may impact for sure groups of people, or which may impact for sure places of detention”. Moreover, the domestic approximate must also “make a farther assessment, specific as well as precise, of whether at that topographic point are substantial grounds to believe that the private concerned volition hold upwards exposed to that adventure because of the weather condition for his detention envisaged inwards the issuing Member State” earlier refusing the execution of the EAW (Aranyosi, paras 89 as well as 92).

Furthermore, the possibility to pass upwards to give upwards persons convicted for political offences – which is traditionally seen equally beingness percentage of the international organization of protection of refugees - has been removed from the Convention on Extradition betwixt Member U.S.A. of the European Union concluded inwards 1996 – which is the ancestor of the electrical flow EAW organization - just because of Member States’ duty to trust their peers’ judicial system. Interestingly, the removal of this the world for refusal had been required yesteryear Kingdom of Spain when it faced difficulties to obtain the extradition of Basque independentists who were seeking for protection inwards Belgium. The Castilian regime pleaded that the the world for refusal for political infractions constituted a hurdle to criminal cooperation inside the European Union which was at odds alongside the trust that Member U.S.A. should limited to each other (see E. Bribosia as well as A. Weyembergh, “Extradition et asile: vers un espace judiciaire européen?”, R.B.D.I., 1997, pp. 69 to 98).

In the electrical flow province of European Union law, no option for refusal of execution of the EAW concerning Mr. Puidgemont seems thus to exist. It is noteworthy, however, that the EAW organization may, equally a whole, hold upwards suspended, when the physical care for provided for yesteryear Article seven TEU is initiated if at that topographic point is a (clear adventure of) violation of the values referred to inwards Article 2 TEU on which the Union is founded, including human rights, commonwealth as well as the dominion of law. Although roughly people receive got called for the initiation of this mechanism, the reliance on Article seven is real unlikely to laissez passer on off politically: it needs at to the lowest degree a bulk of 4 fifths at the Council simply to number a warning, as well as the noun weather condition of European Union values’ violations are real high.

Nonetheless, Kingdom of Belgium has included inwards its transposing legislation (Federal Law of nineteen Dec 2003 related to the EAW) an obligatory the world of refusal – whose validity regarding European Union police tin seriously hold upwards pose into enquiry -  if at that topographic point are valid grounds for believing that its execution would receive got the outcome of infringing the funda­mental rights of the mortal concerned, equally enshrined yesteryear Article 6(2) of the TEU (Art. 4, 5°). Triggering this exception volition nonetheless result, inwards my view, inwards a violation of European Union police yesteryear the Belgian approximate since the ECJ has several times ruled that the grounds for refusal included inwards the Framework Decision were exhaustive as well as that a Member State could non rely upon its national human rights protection to pass upwards the execution of a EAW which respects the weather condition set downwards inwards the Framework Decision (Melloni).  Another option for the Belgian approximate volition hold upwards to brand a reference to the ECJ for a preliminary ruling inwards monastic enjoin to enquire whether, inwards the illustration at hand, the presumption of conformity alongside European Union fundamental rights inwards Kingdom of Spain may hold upwards pose aside because of the specific province of affairs of Mr. Puidgemont.

The Quasi-Exclusion of the Asylum Right for European Union Citizens

Besides asking for the refusal of his give upwards to Castilian authorities, Mr. Puidgmont could - at to the lowest degree theoretically – attempt asylum inwards Kingdom of Belgium on the set down of the Refugee Convention of 1951, which defines equally refugees people alongside a well-founded fright of persecution for (among other things) their political persuasion (Article 1.A.2).

However, Kingdom of Spain also requested – also the removal of the the world for refusal to give upwards a mortal based on the political nature of the alleged criminal offense inwards the European Extradition Convention of 1996 – the enactment of Protocol No 24, on asylum for nationals of Member U.S.A. of the European Union, annexed to the Treaty of Amsterdam signed inwards 1997. This Protocol practically removes the correct of European Union citizens to attempt asylum inwards other countries of the Union.

Founding itself on the purported trustful grapheme of Member States’ political as well as judicial systems as well as the (presumed) high score of protection of fundamental rights inwards the EU, the Protocol states that all Member U.S.A. “shall hold upwards regarded equally constituting rubber countries of root inwards abide by of each other for all legal as well as practical purposes inwards relation to asylum matters” (Art. 1). Any application for asylum made yesteryear an European Union citizen inwards roughly other Member State shall thus hold upwards declared inadmissible, except if the Member State of which the applicant is a national has decided to suspend temporarily the application of the European Convention on Human Rights inwards fourth dimension of emergency (Article xv of the ECHR; Federal Reserve annotation that it’s non possible to suspend all provisions of the ECHR on this basis) or if this Member State has been discipline to a determination based on Art. 7.1. or 7.2. TEU establishing the adventure or the existence of a serious as well as persistent breach yesteryear the Member State of European Union values referred to inwards Art. 2 TEU.

A Member State may also decide, unilaterally, to accept an asylum demand into consideration at the double status that it instantly informs the Council as well as that that the application shall hold upwards dealt alongside on the set down of the presumption that it is champaign unfounded.  This final derogation has been invoked yesteryear Kingdom of Belgium which has adopted a proclamation stating that it would buy the farm on to an private exam of each asylum demand of a European Union citizen lodged alongside it. To comply alongside European Union law, it must nonetheless consider each application champaign unfounded rendering the burden of the proof real heavy for the European Union citizen asylum seeker.  Belgian alien’s police provides for an accelerated physical care for for asylum when the private comes from an European Union solid set down (Article 57/6 2 of the Belgian Aliens Act) but statistics nevertheless exhibit that virtually xx asylum demands from European Union citizens where declared founded inwards 2013 as well as 2014 yesteryear Belgian authorities.

The European Union Brought on Stage…  

In both cases, the refusal to execute the EAW or the granting of an asylum correct to Mr. Puidgemont would resultant from the consideration that the Castilian judiciary does non introduce the basic as well as essential qualities of independence as well as impartiality to adjudicate the illustration related to Catalan independence activists. This observation would probable resultant inwards a major diplomatic dispute betwixt the ii countries and, to a greater extent than widely, inwards the EU. Indeed, the consideration made yesteryear Kingdom of Belgium and/or the ECJ that Kingdom of Spain would non abide by fundamental values of the European Union inwards treating the illustration of Catalonia would jeopardize the essential regulation of mutual trust betwixt Member States, which is relied upon inwards criminal, asylum but also inwards civil judicial cooperation. The Castilian constitutional crisis could thereby potentially telephone phone into enquiry the whole organization of cooperation inwards the European Area of Freedom Security as well as Justice.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter I:5, chapter II:3

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