Everyone expected the Spanish extradition request

Readers will no doubt be aware that the Spanish Government has just produced European arrest warrants bearing the names of Catalan leaders.

Those wanted include the former Catalan President Carles Puigdemont and, more pertinently for us, Clara Ponsati, who currently lives in Scotland.

They and others are accused of the positively medieval felony of rebellion and sedition, which could potentially land them in jail for several decades in Spain. In reality, their only crime was to lead a peaceful democratic movement like the kind we have been engaged in here for many decades.

This is obviously worrying for Supporters of Scottish independence. The Spanish Government are crushing a peaceful movement by abusing the power of the State. A precedent we don’t want to see succeed in modern Europe. Not when indyref2 is just around the corner.

I have seen a few recurring opinions on the Ponsati case from within the independence movement that are worth addressing.

The first is a criticism of the Scottish Government for not interfering in the legal system. This blog by Craig Murray exemplifies this view. While I can empathise with his frustration, in truth there isn’t much the Scottish Government can do. Besides, it is hypocritical to condemn the Spanish Government for interfering in politics while urging the Scottish Government to do the same. No government should interfere with its judiciary. However, even if the Scottish Government was tempted to, the law that covers extradition is a Westminster law.

And even Clara Ponsati’s lawyer, Aamer Anwar agrees. He recently said:

I’ve seen a lot of positioning by people who – quite rightly – support the Catalan struggle for independence [and] support the position of Clara Ponsati. But the position is fundamentally correct, that the Scottish Government has taken, and the Justice Secretary has taken, and Nicola Sturgeon has taken: it is not for government ministers to interfere in the judicial process in this country. We have an independent judiciary, and due process will take place.

Clara Ponsati welcomes the support of the Scottish Government, she welcomes the support of the Scottish people, but she also has stated it is correct that the courts in this country will now decide what is her fate. That’s due process – that’s the way the system works in this country.

If there’s any further interference, then the real question that will be asked is what will be the difference between our courts or our government and the Spanish Government? It’s really not for government ministers to interfere.

Murray and others like him want the Scottish independence campaign and the Scottish Government to practice civil disobedience.

He also favours the aggressive move of Scotland universally declaring independence. While I respect those views, it’s highly debatable that they would be the best route to independence. It seems to me that independence is inevitable due to the demographics of the support base. We are on the cusp of having the numbers now. There is likely to be another vote on the matter soon. Changing the tactics to be more aggressive might be counterproductive. If the UK Government starts behaving like the Spanish one, then we might have no option but to change tactics, but doing it now risks turning reasonable people, who believe in the rule of law, against us.

The second point I have seen people make is that they feel betrayed by the EU over what is happening in Spain.

I feel the same way too. I think the EU should have done a lot more to force the Spanish to find a negotiated solution in order to avoid the need for an unsanctioned referendum last year. The EU should have strongly condemned the resultant State instigated violence. The EU should speak up more about these politically motivated charges that Spain is currently dishing out.

Where I don’t agree is when this argument is used as a justification for leaving the EU. Firstly, because the choice is currently between the UK and the EU and I don’t hear the UK getting involved in Spanish internal politics either. Secondly, as we have seen recently with Brexit, we can’t really escape the EU. It is far too close and far too powerful. Our choice is either to try to influence it from within or to go along with its rules but have no real leverage over its behaviour. While many things about the EU disappoint, I’d rather have a seat at the table to try to change those things than have to observe them begrudgingly from the sidelines.

On a more positive note, Clara Ponsati will have her day in court and actually has a good chance of avoiding extradition.

The part of the relevant legislation that might save her is this.

There is a good argument to be made that Ponsati might not get a fair trial in Spain due to her political opinions.

This is exactly what her lawyer is going to argue in order to stop her being sent to Madrid.

The EU Council itself has previously expressed concerns about the independence of the Spanish judiciary. This is because the way that judges are selected in Spain is open to political interference. Which is why Spain ranks lower than China and Saudi Arabia on the World Economic Forum’s league table of judicial independence.

Not only that but the Catalan crisis itself was partly caused by political interference in the judiciary. 

In 2010, the Spanish Constitutional Court issued a controversial ruling that limited the scope of competences – which were defined by the law on Catalan autonomy and approved in a 2006 Catalan referendum.

The ruling was adopted after four years of deliberation – by ten judges under enormous political pressure – while four of them, including the president of the Constitutional Court, had expired mandates.

The Spanish constitution unequivocally states that “the members of the constitutional Court shall be appointed for a period of nine years and shall be renewed by thirds every three years”, while the president of the court shall be appointed for a three-year term.

Given that Spanish political parties were unable to agree on the selection of new judges in 2007, the Spanish parliament approved an ad-hoc reform to extend the mandates of judges until their replacement.

Afterwards, the Constitutional Court agreed that the mandates of judges can be extended, violating the common-sense legal principle of impartiality – that no one should be the judge of their own cause.

And, even if you ignore that fact the the charge of rebellion is a bit of a joke in the 21st century, there are many other questions to be asked about Spanish misuse of the Judiciary with regards to Catalonia.

  • The courts displayed a biased interpretation of the Constitution to negate a referendum
  • Judicial prosecution and imprisonment were used for activities which are not crimes
  • The framing of peaceful demonstration as sedition by the Spanish Attorney General
  • Deployment of Spanish police and military police (Guardia Civil) in Catalonia
  • Appointment of a Coronel serving in the Spanish Ministry of Home Affairs to direct the Catalan police (Mossos d’Esquadra)
  • Intervention in the Government of Catalonia without following the proper constitutional procedures
  • Search and the opening of private postal correspondence without a judicial order
  • Closure of websites, threats to media and seizure of electoral materials
  • Banning and cancellation of public events
  • Misuse of the mandate and powers of the Constitutional Court
  • Political interferences in the proper functioning of the judiciary
  • Failure to respect unfavourable rulings

You can read more detail about those failings here.

There really is a lot her lawyer can bring up in court to cast doubt on the merits of her extradition.

Hopefully, the Scottish judiciary will prove to be more independent than the Spanish one and rule that she can remain here free from persecution. All being well they will realise that these charges are political and that she can never receive a fair trial.

We should not deport someone to a country where one can be persecuted for using democratic and peaceful means to try to bring about political change.

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A wee primer on European Arrest Warrants. http://www.bbc.co.uk/news/world-europe-23239493

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