The General Advocate of the CJEU agrees with Llarena against Belgium and paves the way for Puigdemont's handover

It also endorses that it can once again request the extradition of former Minister Puig, who the Belgian Justice has already refused to hand over.

The General Advocate of the Court of Justice of the European Union (CJEU) has considered this Thursday that the Belgian Justice cannot reject the delivery of those accused by the 'Procés' claimed by the magistrate of the Supreme Court Pablo Llarena, among them the former Catalan president Carles Puigdemont, based on the risk that his fundamental rights will be violated if he does not demonstrate systemic and generalized deficiencies in Spain, nor can he question the powers of the Supreme Court as the authority to issue such European orders.

The opinion of the Advocate General is not binding for the CJEU but in the vast majority of cases the sentences issued by the European Justice follow the line marked by these opinions.

Llarena went to the European Justice to clarify both the scope of the issuance of the European Arrest and Surrender Orders (OEDE) issued by the Supreme Court against several defendants for their role in the 'Procés', including the former president of the Generalitat Carles Puigdemont, as the reasons for denying the execution of such European orders.

The magistrate of the Supreme Court addressed the question for a preliminary ruling to the CJEU in March 2021 after the Belgian Justice refused to hand over former Minister Lluis Puig to the Spanish authorities, considering that the competent court to demand his extradition should be the Superior Court of Justice of Catalonia and that if it is delivered in Spain, fundamental rights such as the presumption of innocence could be put at risk.

The European Lawyer Jean Richard de la Tour recalls in his opinion the "principle of mutual trust" between the Member States that prevails in judicial matters and defends it as an element "of capital importance" that must be fully applied to protect the space without borders within of the EU and simplify judicial cooperation to "fight against impunity".

For this reason, it adds in its conclusions, to expect the executing judicial authority to verify in depth the existence of a risk to the fundamental rights of the defendant without there being "systemic or generalized deficiencies" in the judicial system from which the European order is issued " it would be nothing but the expression of a contrary (*) distrust" of the EU rules on Euroorders.

It also warns that in order to deny a European warrant for risk to the fundamental rights of the person sought, the judicial authority must demonstrate with "objective, reliable, precise and duly updated data, the existence of a real risk" due to "systemic or generalized" deficiencies in the functioning of the judicial system of the issuing Member State.

It should be remembered that during the hearing held in Luxembourg on this matter, the European Commission, as guardian of the Treaties, certified that there is no systemic problem for the rule of law in Spain.

Regarding the powers of the Supreme Court to demand the delivery of the defendants, the lawyer points out that the framework decision that sets the rules of the European orders does not allow the Belgian courts to decide whether an issuing judicial authority is competent or not.

To do otherwise would contravene the principle of procedural autonomy according to which Member States can designate in their national law the competent judicial authority to issue EODEs and the principle of mutual recognition, which is the "cornerstone" of judicial cooperation between countries of the EU.

IN FAVOR OF A NEW EUROORD AGAINST PUIG

With this preliminary ruling, Llarena wanted to clarify the scope of the euro orders before the Belgian Justice ruled on the files of Puigdemont and former Ministers Toni Comín and Clara Ponsatí, also prosecuted in the independence case and now residing in Belgium. In addition to the preliminary ruling, the European Justice must resolve another appeal on the immunity of Puigdemont, Comín and Ponsatí as MEPs before the Belgian Courts reactivate their cases.

The Supreme Court magistrate also asked the CJEU if he could issue a new Euroorder against Puig if the conclusion of the European Justice is that Belgium breached the EU rules and the opinion of the attorney general is favorable.

The objective of "fighting against impunity" argues in favor of several Euroorders being issued against the same person addressed to the same judicial authority when the latter has denied the previous one "contravening Union Law", reasons the lawyer, who warns of that limiting such a remedy could "weaken" efforts to sanction offenses within the EU and call into question the effectiveness of the judicial cooperation system.