Puigdemont uses the CJEU ruling to once again ask the Supreme Court to send his case to a court in Barcelona

He also requests that if he rejects this claim, he at least rules out prosecuting him for aggravated public disorder.

MADRID, 2 Feb. (EUROPA PRESS) -

The defense of the former Catalan president Carles Puigdemont has once again requested the Supreme Court (TS) to declare itself incompetent for the cause of the 'procés' and, consequently, send it to a court of instruction in Barcelona, ​​relying on the recent sentence of the Court of Justice of the EU (CJEU), although, already counting on the Supreme Court rejecting it, he asks that it at least dismiss the petitions of the Prosecutor's Office and the Lawyer's Office, which urge to also prosecute him for public disorder.

In a letter from this same Thursday, to which Europa Press has had access, the defense requests the instructor of the 'procés', the magistrate of the TS Pablo Llarena, to refrain in favor of the Barcelona Investigating Court that corresponds in turn.

In this sense, he alludes to the "right to an impartial tribunal", a condition that he says "manifestly lacks" Llarena, "as well as other magistrates of the Second Chamber of the Supreme Court".

The former president bases his requests on "what is pending in the proceedings" and "the rules of application" but also on "what is established by the ruling of the Court of Justice of the European Union", with which the community court responded to the questions raised by Llarena to clarify the scope of the Euro-orders issued against the fugitives of 1-O.

The CJEU agreed with Llarena by ruling that the Belgian Justice cannot reject the handing over of those accused by the 'procés' based on the risk that their fundamental rights are violated, if it does not demonstrate systemic and generalized deficiencies in Spain, nor can it question the powers of the Supreme Court as the authority to issue such Euro-orders.

Puigdemont's defense is based on the part of the CJEU ruling where he says that "a court established by law (...) cannot be considered a national supreme court that decides in the first and last instance on a criminal matter without having a express legal basis that confers jurisdiction to prosecute all of the defendants".

It also points to the part in which the CJEU indicates that, although the Belgian authorities cannot verify the competence of the Supreme Court, if the affected person alleges that if he is handed over, he risks a violation of article 47 of the Charter of Fundamental Rights of the EU, "due to systemic or widespread deficiencies in the functioning of the judicial system of the issuing Member State", they will be able to assess such a claim in a "two-phase examination".

Further on, the CJEU specifies that, "in a first phase, the judicial authority executing the European arrest warrant in question must determine whether there are objective, reliable, precise and duly updated elements that tend to demonstrate the existence of a real risk that the fundamental right to a fair trial guaranteed by Article 47 is violated in the issuing Member State".

"In particular derived from the breach of the requirement of a court established by law, due to systemic or general deficiencies in said Member State or deficiencies that affect an objectively identifiable group of people to which the interested party belongs", complete.

"In a second phase", the CJEU specifies, "the executing judicial authority must verify, in a concrete and precise way, to what extent the deficiencies identified in the first phase (...) may affect the procedures to which subject the person subject to a European arrest warrant and if, taking into account the individual situation of this person, (...) there are serious and well-founded reasons to believe that said person will be at real risk".

However, the defense argues that Llarena can declare "now" her lack of competence "or wait for this to be determined by an enforcement authority of another Member State that, without a doubt, will abide by the provisions of the judgment of the Court of Justice of the European Union of January 31, 2023, or, worse still, wait for the ruling of the European Court of Human Rights (ECHR)".

However, already anticipating a rejection, since "it is a matter claimed by this party on several occasions, and which has always been dismissed", he urged Llarena to reject the reform appeals presented by the Prosecutor's Office and the State Attorney's Office, which They have urged the instructor to also prosecute Puigdemont for a crime of public disorder.

On January 12, Llarena issued an order to adapt the prosecution of the 1-O fugitives to the penal reform that has repealed sedition and modified embezzlement. In the case of Puigdemont, he replaced the first offense for disobedience and maintained the embezzlement, but in its new aggravated version --which preserves the old penalties--.

Puigdemont responds to the Public Prosecutor's Office that, although he does "an interesting exercise in legal dialectic", it has "little or no run". The defense maintains that it is "an impossible subsumption" because the Prosecutor's Office seeks a "retroactive application of the new criminal type of aggravated public disorder" making an "extrapolation" of the sentence of the 'procés'.

At this point it also warns that, according to the jurisprudence of the CJEU, "a delivery by any State of the European Union is unfeasible, if it is sought on the basis of regulations that were not in force at the time of the facts" .

In this context, the defense says that "it is hard to imagine" why they seek to add aggravated public disorders. "Unless what is really sought is to prevent the free movement of my client throughout the territory of the European Union, creating an extra-community zone that would only cover the territory of the Spanish State," he adds.

For the former president, "the appeal of the State Attorney's Office must suffer the same fate as the one postulated by the Prosecutor's Office, since, although with other arguments, it intends the same thing."

Although he stops here to express his "surprise" at the fact that the State Attorney's Office does not fight that Llarena prosecute those fleeing the 'procés' for aggravated embezzlement but does ask to apply the most attenuated version of this crime to those already convicted , something that he defines as a "double standard".

"The State Attorney seems to have two diametrically opposed positions depending on who the reform of the Penal Code is to be applied to, in some cases it considers that there has been no profit motive and in others -such as my client- endorses the criterion of the magistrate-instructor, regarding the presence of the profit motive in the conduct object of imputation", recriminates.

And, in line, he reiterates that not only was there no such spirit in Puigdemont but that "there has not been any illegal action either", the main argument of the appeal filed by the former Catalan president against Llarena's order.