A Belgian judge will have to decide by early on Monday morning whether to free the Catalan leader Carles Puigdemont and four ministerial colleagues on bail pending hearings on their deportation to Spain.
The five, who fled to Belgium last Monday after Madrid's dissolution of the Catalan government, surrendered to police at 9.17am on Sunday on the foot of a European arrest warrant issued by the Spanish courts. The judge has 24 hours to decide whether to keep them in jail, pending a 30-day appeal process.
Spain has called fresh Catalan elections in December in which Puigdemont has announced his intention to stand, pledging to adhere by their verdict and demanding that Madrid do likewise. His detention in either Belgium or Spain is likely to boost his candidature, although polls suggest that parties that want Catalonia to remain part of Spain would win about 54 per cent of the vote.
The European-arrest-warrant system, which has been fully in place since 2004, replaced a cumbersome network of extradition systems, which were slow, inconsistent and sometimes highly politicised. Based on mutual recognition of the fairness and equivalence of each others' criminal-justice systems, the warrant system operates between judicial authorities, bypassing any role for national governments. It also removed the "political exception" provision that in Ireland caused tensions over extradition of republicans to the UK.
The European Union decision set out 32 specifically recognised offences for which warrants will be enforced automatically; judges in the state receiving the request, in this case Belgium, otherwise have the right to consider whether the charges relate to offences in their state.
The Spanish warrants issued by Judge Carmen Lamela are for the crimes of rebellion, sedition, misuse of public funds, abuse of authority and contempt of court. The judge said separatists, led by Mr Puigdemont as first minister of "the regional government of Catalonia", "promoted and used the intimidating and violent force of the pro-independence sectors of the population". They "called for insurrection, against and as a challenge to Spanish constitutional order".
Despite several constitutional-court rulings ordering him to stop, she said, Mr Puigdemont “continued promoting the measures needed for the creation of a future independent Catalan state in the form of a republic”.
Among the issues she raised were the Catalan desire, as part of the independence process, to obtain “exclusive control” of the Catalan police, the Mossos, a force “made up of more than 17,000 armed officers, with the potential intimidatory effect they represented”. The judge linked that plan to seek exclusive control of the Mossos to article 472.7 of the Spanish criminal code of 1995, which defines the crime of rebellion.
Mr Puigdemont’s lawyers are unlikely to be able to demonstrate to the Belgian court that offences like sedition and rebellion, which are not listed in the 32 specified offences, do not have Belgian equivalents. But, legal sources suggest, as the offences are clearly political in character they may be able to argue that, as such, they go beyond the stated purpose of the warrant system and ask the judiciary to exercise its discretion.
It is understood, for example, that a number of European arrest warrants based on contempt-of-court offences served in Ireland have been declined. The offence of misuse of public funds is likely to be the easiest to enforce. The Belgian courts do not have the right to examine the merits of each charge but must decide whether they fit the scope of the warrant system.
