I assume that readers know that the Belgian justice in its entirety has rejected the extradition requests issued against Valtònyc and Lluís Puig by the Supreme Court (TS). I’m not sure you are aware of the similarities and differences between the two cases.
Valtònyc has been sentenced in Spain by final sentence to a prison term of just over three years for various crimes. He was convicted in the first instance by the National High Court (AN). The sentence of the AN was confirmed by the TS. And the Constitutional Court did not admit the appeal for amparo filed against said judgments.
After being sentenced, Valtònyc fled and took up residence in Belgium. Since the sentence in Spain is final, the Supreme Court has issued an arrest and surrender order addressed to the Belgian justice requesting his extradition, in order for the sentence handed down against him to be carried out. The Belgian justice has so far refused to grant the extradition because it understands that the conduct for which he has been convicted in Spain does not constitute a crime in Belgium. The Public Prosecutor’s Office could file a cassation appeal with the Belgian Supreme Court, but, apparently, it will not do so because it understands that it would not have the possibility of success.
It means, then, that not a single body, but the entire Belgian justice system is the one that considers that the extradition requested by the Supreme Court should not be granted.
Lluís Puig, on the other hand, did not flee to Belgium so as not to have to answer to the Spanish justice system, but instead established his residence in Belgium before the Public Prosecutor’s Office had initiated any kind of action against him. Lluís Puig has exercised his fundamental right recognized in article 19 of the Constitution, which allows him to freely enter and leave the territory of the State and establish his residence wherever he deems appropriate. It remains at the disposal of the Supreme Court, but under the terms in which the Belgian justice considers that said provision has to materialize.
In other words, the Supreme Court has to persuade the Belgian justice that his extradition request is in accordance with the law. If he succeeds, Lluís Puig will be extradited, so that the Supreme Court can process and judge him. If he does not succeed, Lluís Puig will continue in possession of all the rights recognized in the Constitution, maintaining, if he wishes, his residence in Belgium.
The first difference between the legal position of Valtònyc and that of Lluís Puig is clear. Valtònyc has already been sentenced in Spain. Lluís Puig has not even been tried.
From this first difference another of enormous importance follows. In the case of Valtònyc, the Belgian justice has not questioned the legitimacy of the Spanish justice to consider that his conduct constitutes certain crimes. It has simply confined itself to stating that such crimes do not exist in the Belgian legal order.
In the case of Lluís Puig, the arrest and surrender order was issued by the Supreme Court in order to try him for the crime of embezzlement, which does exist in the Belgian legal system. By rejecting the extradition, the Belgian justice questions the “legitimacy” of the action of the Supreme Court as a court of a State of Law worthy of the name. If the extradition had been requested by a judicial body based in Catalonia, the place where Lluís Puig had carried out his activity as a member of the Government chaired by Carles Puigdemont, the Belgian justice would not have been able to refuse to grant the extradition. But since the TS has requested it, it is no longer the case.
The demand for criminal responsibility for his conduct as a member of the Government had to have occurred before the Superior Court of Justice of Catalonia (TSJC). Against the judgment of said TSJC, an appeal could be lodged with the Supreme Court. This is the “natural order” of the process of administration of justice in any State of Law worthy of the name.
This “natural order” is what, according to Belgian justice, the Supreme Court has subverted, manipulating the attributive rules of jurisdiction in order to become a judge of first and only instance against the former Minister of the Government, Lluís Puig. With this, it has violated fundamental rights constituting the “essential nucleus” of the rule of law. Not of this or that State of Law, but of the State of Law. That is why the extradition request that he has addressed to the Belgian justice cannot be met.
Following the decision of the Belgian justice not to comply with the arrest and surrender order that had been sent to him, Judge Pablo Llarena has raised a “preliminary ruling” to the Court of Justice of the European Union (CJEU), with the aim of that it recognize its authority to issue the arrest and surrender order that it had issued and impose on the Belgian justice the obligation to grant the extradition of Minister Lluís Puig.
If the CJEU endorses the position of the Spanish investigating judge, Lluís Puig must be extradited to be tried by the Supreme Court in Spain. In the event that this is not the case, it would be all the activity of the Supreme Court in the procés case that would be invalidated, due to violation of the fundamental rights of all those accused and convicted, since if it did not have competence to act against Lluís Puig Nor did he have it to act against everyone else.
In the first half of 2022, predictably, the decision of the CJEU will be known. On the Valtònyc case, the CJEU has already had occasion to pronounce a preliminary ruling and did so in the opposite direction to that intended by the Supreme Court. Will the same thing happen again?