Consequences of resolution of Schleswig-Holstein Oberlandgericht


José Antonio de Yturriaga Barberán

Spain’s Ambassador


The Territorial Court of Schleswig-Holstein has not executed a European Order of Detention and Transfer requested by the examining magistrate of the Spanish Supreme Court, Pablo Llerena, for the transfer of Carles Puigdemont for the crime of rebellion, and it has based its decision on a sentence of the German Supreme Court that exonerated some ecologists that protested against the extension of the airport of Frankfurt, because the violence used had not prevented the State from imposing order. The Court estimated that this case was “almost identical” to that of Puigdemont and that the actions of violence attributed to him “were not susceptible to exercise such degree of pressure on the Government that would have forced him to give in faced with the violent”. It did not fall into high treason, because the violence produced meant a minimum threat to the Spanish constitutional order.


The Territorial Court had to examine the matter in depth, because -for not being rebellion included in the catalogue of crimes that made transfer obligatory- the German judges had to verify whether there was a crime similar to that of rebellion in their legislation and the closest was that of high treason. Since it required violence, the Court had to verify if this had taken place.


The Decision 2002/184 on the Mutual Recognition of Penal Sentences established a catalogue of crimes according to which the transfer was compulsory. For the rest of crimes it was required “that the facts that justify the issue of the European Order constitute a crime in accordance with the legislation of the State of execution, regardless of the constitutive elements or the description of it”. This postscript was inserted because it is strange that there are two identical crimes in the different penal systems.


“The judges have exceeded their authority by asserting that Puigdemont’s actions would not be considered a crime in Germany” 


In an excellent article on “The Strange Case of Puigdemont’s European Arrest Warrant”, Daniel Sarmiento has pointed out that the resolution of the Territorial Court has failures. On one hand, it has incorrectly interpreted the double incrimination principle. The judicial authority of execution must examine whether the alleged crime corresponds to another similar in its penal legislation, but it is authorized to examine the matter in depth. In the case Piotrowski, the CJEU sentenced that the judge should make sure whether the requirements of its regulations were met through an abstract reasoning, but it could not get into specific details of the case, because, otherwise, the European Order of Detention and Transfer would make no sense and the judge of execution would assume the function of issuing judge. The Court affirmed that it was no use making an interpretation that “allowed the judicial authority of execution to refuse to execute the transfer based on an analysis that is not expressly stipulated in that or another article of the Decision”.


On the other hand, the CJEU affirmed in the cases Aranyioni and Calderaru that, when an authority of execution had doubts not to execute a European Order of Detention and Transfer, it should ask for additional information from the issuing authority, but the Territorial Court has decided, unilaterally and “ad limine”, without giving the Spanish Territorial Court the possibility of going more deeply into the motivation of its petition, and it has done it in 48 hours and without sufficient knowledge of the facts.


It has rejected the transfer of Puigdemont and prevented him from being tried in Spain for rebellion. The judges have exceeded their authority by asserting that Puigdemont’s actions would not be considered a crime in Germany. If the Bavarian President held a referendum of self-determination in Bavaria and declared the independence of the land, would it be in accordance with the German law? The answer is obviously negative.


 17/04/2018. © All rights reserved



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