Update from 26.11.2021:

The European Court of Justice ruled today that Puigdemont´s parliamentary immunity remains lifted. However, this decision only concerns the urgent proceedings against the decision of the EU Parliament that were re-initiated in the context of the recent arrest, not the main proceedings, so it is not a final judgement. The court justified the rejection by stating that there was no urgency, as the ECJ still had to decide on fundamental questions regarding the legality of the Spanish arrest warrant. Until this decision, the arrest warrant had been suspended so that a provisional decision was not necessary.

Update from 04.10.2021:

The Italian Court of Appeal in Sassari ruled today that Carles Puigdemont, who was arrested about a week ago and released without conditions after only one day in custody, would not be extradited to Spain for the time being. However, this is not a final decision. Instead, the warrant of arrest was suspended. The judges pointed out that the ECJ had not yet reached a final decision on the question of Puigdemont´s immunity. This decision must first be awaited before a decision on extradition can be made. The Italian court also wants the ECJ to clarify whether the Spanish arrest warrant is legal at all.

Update from 24.09.2021:

Carles Puigdemont has been arrested again on the Italian island of Sardinia based on a European arrest warrant issued by Spain´s Supreme Court in autumn 2019. In this warrant, the Spanish court once again accuses the former Catalan head of government of, among other things, rebellion – the charge for which the German Higher Regional Court of Schleswig-Holstein had already declared the extradition inadmissible around three years ago. However, this time, the Italian court in Sassari, which is responsible for the extradition, has to decide and may make a different assessment. The hearing has been set for 04.10.2021.

In the meantime, the EU Parliament, in which Puigdemont himself is a member and therefore has immunity in principle, had lifted this immunity in a decision at the request of the Spanish authorities. Puigdemont appealed against this decision to restore parliamentary immunity, pending the decision on the merits was rejected.

Update from 20.07.2018:

The Spanish Supreme Court declares the waiver of extradition and withdraws the European arrest warrant issued against Puigdemont. As a result, the German Public Prosecutor´s Office applied to the Higher Regional Court of Schleswig-Holstein for the revocation of the extradition warrant, which granted this application. Thus, the extradition proceedings are now formally terminated, and Puigdemont can (for the time being) move freely again in Europe.

However, it remains to be seen whether Spain will issue another arrest warrant in the near or distant future if Puigdemont leaves Germany and enters another country. In this case, the court there would have to decide on extradition, as the Higher Regional Court of Schleswig-Holstein did before. This court would have to decide at its discretion on the individual criminal charges and their admissibility in the context of the extradition proceedings so that it could come to a different conclusion than the OLG. In this case, the Spanish could hope that the severe charge of rebellion would be declared admissible by this court and that they would then be allowed to prosecute and convict Puigdemont. He should therefore reckon with this possible course of action.

Update from 12.07.2018:  

The Higher Regional Court of Schleswig-Holstein has now finally ruled: The extradition of Puigdemont to Spain is admissible. The OLG considered the requirements to be met. However, it based its decision exclusively on the criminal charge of embezzlement of public funds. The necessary double criminality was not to be examined, as it was a catalogue offence of the EU Framework Decision for the European Arrest Warrant. In addition, however, the accusation was comparable to the breach of trust, which is punishable under German law, so that no problems arose about admissibility in this respect.

The OLG took a different view of the extradition on the charge of rebellion, which, with a sentence of up to 20 years imprisonment, was much more severe than embezzlement. Here, there is a lack of reciprocity, which is why extradition is inadmissible in this regard. In this case, the so-called principle of speciality becomes relevant, according to which Spain, in the case of extradition, would be allowed to prosecute or convict the prosecuted Puigdemont only for the accusation of embezzlement, but not for the inadmissible accusation of rebellion. Regarding compliance with this principle on the part of the Spanish authorities, the Higher Regional Court of Schleswig-Holstein expressed no reservations; it had “unrestricted trust” in the Spanish judiciary. Since Puigdemont complies with his conditions in an exemplary manner, a (renewed) detention for extradition is also not necessary. If Spain now asks for Puigdemont´s transfer, he must be extradited. It remains to be seen whether this will be done, considering the principle of speciality and the associated principle of the prohibition of double punishment in this case.

Update from 06.04.2018:

Contrary to expectations, the initially imprisoned Catalan head of government, Puigdemont, will soon be allowed to leave prison. The competent Higher Regional Court issued an extradition warrant to Spain, but the execution has now been suspended under conditions. Among other things, Puigdemont is to pay a security of €75,000. As a reason for the arrest warrant, the court refers only to the accusation of embezzlement but not to the frequently brought forward accusation of rebellion. In this respect, the 1st Criminal Senate of the Higher Regional Court of Schleswig-Holstein declares the charge “inadmissible from the outset”. As soon as the court conditions are fulfilled, Puigdemont can be released as quickly as possible.

Update from 03.04.2018:

The Schleswig-Holstein Attorney General´s Office wants Catalan separatist leader Carles Puigdemont extradited to Spain. Therefore, the Attorney General´s Office applied for an extradition warrant for Puigdemont, on which the Higher Regional Court (OLG) of Schleswig will now decide.

After the arrest of Catalan separatist leader Carles Puigdemont, the question arises as to what will happen to him. Extradition of the former Catalan regional president Puigdemont is not automatic, even if a European Arrest Warrant has been issued. In northern Germany, the Schleswig-Holstein Higher Regional Court will now decide on Mr Puigdemont´s extradition.

What is the extradition procedure in Germany?

The basis of Puigdemont´s detention is a European Arrest Warrant. This arrest warrant is an instrument of cooperation between police authorities within Europe. The European Arrest Warrant aims to arrest persons who have been convicted of a criminal offence or who are urgently suspected of a criminal offence within other European countries for subsequent extradition. A final judgment against Puigdemont is not yet available. However, it is sufficient that a national arrest warrant has been issued against him, accusing him of embezzlement of public funds and rebellion.

The extradition procedure begins with the receipt of the European arrest warrant by the respective member state. The arrest warrant does not have to be translated into German. After receipt of the extradition request, extradition custody may be ordered against the prosecuted person under section 15 IRG if:

  1. There is a danger that the prosecuted person will evade the extradition proceedings or the execution of the extradition, or
  2. Based on specific facts, the urgent suspicion is justified that the prosecuted person will impede the determination of the truth in the foreign or extradition proceedings.

The purpose of extradition custody is to conduct the proceedings and ensure that the prosecuted person does not evade extradition. A prerequisite for ordering extradition custody is that the respective member state has received the necessary extradition documents under section 83a IRG.

Section 83a IRG: Extradition documents

“Extradition is only permissible if the documentation referred to in section 10 or a European Arrest Warrant has been transmitted, which contains the following information:

  1. the identity of the person pursued as specified in the Annex to the European Arrest Warrant Framework Decision and that person’s nationality,
  2. the name and address of the issuing judicial authority,
  3. whether an enforceable judgment, arrest warrant or another enforceable judicial decision with the same legal effect has been received,
  4. the nature and legal assessment of the criminal offence, including the statutory provisions,
  5. a description of the circumstances of the commission of the criminal offence, including the time and place of commission and the person sought’s involvement in the offence and
  6. the maximum penalty provided for by law for the criminal offence concerned in the issuing Member State or, in the event of a final judgment having been given, the penalty imposed.”

Accordingly, extradition custody may only be ordered if the extradition request has been received with the respective extradition documents and the documents contain a sufficiently conclusive statement of the facts, grounds for custody exist, and the extradition does not appear inadmissible from the outset.

Under Section 83c IRG, the competent Higher Regional Court must decide on the extradition within 60 days at the latest. After the extradition has been granted, a date for the surrender of the prosecuted person is to be agreed with the requesting Member State. The date of submission should be no later than ten days after the decision on the grant. However, it should be noted that exceeding the deadline does not influence the admissibility of the extradition. In particular, it does not lead to the release of the prosecuted person from custody.

How likely is it that Puigdemont will be extradited?

The European Arrest Warrant must be admissible for extradition to be legally effective, and the material requirements must be met. It is already questionable whether a criminal offence has been committed, which is punishable both in Spain and Germany and is punishable by a custodial sentence or other sanction of a maximum of at least twelve months (cf. section 81 no. 1 IRG).

The Spanish prosecution authorities accuse Mr Puigdemont of rebellion and embezzlement of public funds. Rebellion is directed against coup plotters, i.e., people who try to seize power in Spain by force by using weapons, exerting violence against people, or interrupting railway, telephone, or radio connections.

Rebellion is not a criminal offence in Germany and many other European countries. However, the German offence of high treason under section 82 of the German Criminal Code (StGB) can be considered in this case. The offence is thus similar to that of rebellion so that it cannot be ruled out that the court will also assume criminal liability under German law. Should the judges reject criminal liability for rebellion under German law, there is still a charge of embezzlement of public funds. Embezzlement is also punishable under German law according to § 266 StGB. According to this, “[whoever abuses the power conferred on them by law, by commission of an authority or legal transaction to dispose of the assets of another or to make binding agreements for another, or whoever breaches their duty to safeguard the pecuniary interests of another which are incumbent upon them by reason of law, by commission of an authority, legal transaction or fiduciary relationship, and thereby adversely affects the person whose pecuniary interests they were responsible for” is liable to prosecution. Disloyalty can be sanctioned with a fine or imprisonment of up to five years.

Does the asylum procedure protect against extradition?

If Mr Puigdemont were to apply for asylum, he would at best gain time. The asylum application, like any other, will first be comprehensively examined by the Federal Office for Migration (BAMF). However, the chances of his application being approved are not particularly good, as the execution of a European arrest warrant generally takes precedence over asylum proceedings.

Summary

The formal requirements for extradition seem to be fulfilled. The Higher Regional Court in Schleswig-Holstein must now decide whether Mr Puigdemont’s conduct would also be punishable in Germany. In the case of the offence of rebellion, this can hardly be predicted, as there is only one similar offence in German law (high treason). However, the embezzlement of public funds in Spanish law corresponds to the offence of embezzlement in German law. This circumstance could already be sufficient for extradition, as obstacles to extradition are not apparent. The fundamental prohibition in extradition law to extradite for political offences does not apply in extradition proceedings within the European Union. Thus, Mr Puigdemont can probably not invoke obstacles to extradition.