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10 d’abr. 2018

Schleswig-Holstein-EN (April 2018 preliminary ruling)

The 5 April 2018 preliminary Decision of the Schleswig-Holstein Higher Regional Court in in the extradition case of President Carles Puigdemont (in English).

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(Unofficial machine translation amended by M. Strubell)

Original: http://www.gesetze-rechtsprechung.sh.juris.de/jportal/portal/t/2o3m/page/bsshoprod.psml;jsessionid=C7DDBE0C3F649416A2D2BE582B113E12.jp14?pid=Dokumentanzeige&showdoccase=1&js_peid=Trefferliste&documentnumber=1&numberofresults=1&fromdoctodoc=yes&doc.id=KORE209232018%3Ajuris-r02&doc.part=L&doc.price=0.0&doc.hl=1

A Spanish translation:  http://cadenaser00.epimg.net/descargables/2018/04/12/6c150c62e62a5d27f3d85a70cf2de13d.pdf



1Ausl (A) 18/18 (20/18)

Schleswig-Holstein Higher Regional Court


in the extradition case of the Spanish national Carles Puigdemont i Casamajó, bon on 29 December 1962 in Amer (Girona)/Spain,  currently, on account of the detention order issued by the Neumünster Disctrict Court on 26 Mach 2018, in the Neumünster penitenciary centre  
the person being claimed,

1. Lawyer Prof. Dr. Wolfgang Schomburg,    
2. Lawyer Sören Schomburg,  both of Kurfürstendamm 194, 10707 Berlín.

At the request of the Prosecutor-General of the Land of Schleswig-Holstein, the First Penal Chamber of the Schleswig-Holstein Higher Regional Court in Schleswig, after hearing the persecuted person and his assistants, decided on 5 April 2018:

The extradition detention is ordered against the persecuted person.

The persecutee will be spared the further execution of extradition custody under the following conditions:

    1. The persecuted person may not leave the territory of the Federal Republic of Germany before concluding the extradition proceedings without the consent of the Attorney General of Schleswig-Holstein.
    2. The persecuted person must notify the Attorney General of Schleswig-Holstein of any change of residence.
    3. The persecuted person has to pay a security in the amount of €75,000.00 in a form designated as permissible by law (§ 116a para. 1 StPO) and to prove the performance of this security to the Attorney General of Schleswig-Holstein.
    4. The persecuted is ordered to report, once a week (commencing on Apil 10 2018), at police station No. 1, in Parkstraße 31, 24534 Neumünster.
    5. The persecuted person has to comply with charges of the Schleswig-Holstein Higher Regional Court and the Attorney General of Schleswig-Holstein in extradition proceedings.



On 21 March 2018, in Madrid, on presentation of a European arrest warrant of the Second Chamber of the Supreme Court of Justice (case 20907/2017), the authorities of the Kingdom of Spain request the arrest and extradition of the persecutee for the purpose of prosecution. According to the European arrest warrant, the Spanish authorities, in the context of the longstanding conflict over the legal status of Catalonia vis-à-vis centralized persecutees, allege two offences, namely "rebellion" and "corruption" in the form of infidelity.

The allegations are - in a nutshell - as follows:

1. In the autumn of 2017, the persecuted person, as the then regional president of Catalonia, together with political companions and members of the government, was supposed to pursue a referendum, which had previously been declared unconstitutional by the Spanish Constitutional Court.


Catalonia should vote on the question of whether Catalonia should declare independence from central Spain. Because it had already come to violent disabilities of the work of Spanish officials in the run-up to the referendum, the persecuted had been advised in a meeting by senior police officers that in the referendum with violent confrontations must be expected because the Spanish federal police the order have to stand in front of the polling stations and prevent the election if possible. The persecuted, despite these warnings to the project held. In fact, it was on election day then in many cities in Catalonia, especially in front of the polling stations, came to violent riots and clashes between elective citizens and Spanish police. Several people, including 58 Spanish police officers, were injured.

In this case, the Spanish authorities see a crime of "rebellion".

2. In preparation for the referendum, the Catalan Parliament, under number 4/2017, was to adopt a budget law, listing various items for electoral and referendum issues. The term "Additional Provision 40" is intended to signify the obligation of the regional government to provide funds for the referendum on the political future of Catalonia. This law is said to have been declared unconstitutional by the Spanish Constitutional Court on 5 July 2017.

On 31 October 2017, the regional government, with the participation or approval of the persecutee, was to decide on the necessary measures to carry out the referendum, in particular the printing, provision and distribution of electoral material, preparation and distribution of voters' lists, design of communication campaigns and the like , Total costs of around 1.6 million euros were incurred, namely:
  • a) €224,834.25 for the registration of all Catalans living abroad for the purpose of voting
  • b) €272,804.36 for advertising campaigns to publicize the referendum
  • c) 979,661.96 for the preparation of the ballot papers, election lists and the notification of the election aides) 
  • d) 119,700.00 for the participation of international election observers.
In the expenses for these positions, the Spanish authorities see a crime of "corruption" in the form of misappropriation of public funds in the light of the fact that the referendum was declared unconstitutional.

For the details of the allegations reference is made to the European Arrest Warrant.

After the pursued on the morning of March 25, 2018 in the company of several people in a car coming from Denmark on the Federal Highway 7 to Germany, he was controlled by German police officers and at 11:20 clock in a parking lot at the ramp Schleswig / Jagel, pointing to the European arrest warrant provisionally arrested.

In his presentation to the Neumünster district court, the victim was not asked whether he agreed to the simplified extradition procedure. Nor has he been asked whether he renounces compliance with the specialty principle. Accordingly, the persecuted there did not comment on either point. By a written plea on 5 April 2018, the victim of the persecutee made it clear that the persecutee did not agree to a simplified extradition and did not renounce compliance with the principle of specialty.

The Prosecutor-General of the State of Schleswig-Holstein has applied for the extradition of the persecuted person.

The request of the Prosecutor-General is - at least in the result - to be granted.

Because of the considerable public attention that the process has aroused - apparently due to a certain historical importance of the persecuted person - in the public and media, the Chamber issues a brief preliminary notice:

After the German police knew that the persecuted was in the territory of the Federal Republic of Germany and that against him an effective European arrest warrant from Spain was present, they were obliged to arrest the persecuted in case of assassination provisionally and then to show at a district court.

The District Court was obliged to obtain the person of the persecuted certainty, to teach him and then to order with a secure identity, that the persecuted should be detained until the decision of the Higher Regional Court.

The Prosecutor-General of the Land Schleswig-Holstein had to decide as the authority that carries out the entire extradition proceedings, whether the competent court to apply for the issue of an extradition order.

All the parties to the law have thus complied with the law and fulfilled the tasks assigned to them by the law. The Senate now has to decide on the order for extradition.

Pursuant to Section 15 of the Law on International Legal Assistance in Criminal Matters (IRG), without prejudice to the existence of a ground for detention pursuant to Section 15 (1) Nos. 1 and 2 IRG, extradition custody is to be ordered if the extradition appears to be "not inadmissible from the outset" after an initial examination (Section 15 (2) IRG). From the


The above provision gives the criterion for determining whether an extradition order may be issued.

The examination of possible inadmissibility of the extradition thus leads to different results with regard to the two alleged offenses.

a) As far as the Spanish authorities accuse the victim of having participated in a "rebellion", his extradition turns out to be inadmissible from the outset. This follows from the fact that, according to section 3 (1) of the IRG, extradition is in principle only admissible if the so-called "double criminality" exists, ie. H. if the act was also an illegal act under German law, which fulfilled the facts of a (German) penal law. In order to make this test possible, a so-called "appropriate conversion" (§ 3 para. 1 second version IRG) is to be carried out in this case.

It is true that the request for extradition implies that the persecutee was guilty of acting contrary to the penalties in force in the Kingdom of Spain at the time of the offense. However, the conduct alleged against the victim is not punishable in the Federal Republic of Germany under the law in force here. First of all, the persecuted person did not make a punishable offense by direct application of the penal provisions applicable here, because there is no German law that criminalizes participation in a "rebellion" in Spain.

A possible criminal liability according to German regulations can therefore only be checked if the facts are "converted accordingly". It is not enough that there are "similar" criminal provisions in German law that criminalize "basically comparable" charges. Rather, meaningful conversion of the facts means that the whole case must be considered as if the crime had occurred in Germany, as if the perpetrator were a German national and as if German institutions had participated in the case (Senate decision of 15 September 2009, 1 release (A) 23/09 (24/09)); see. insofar also Lagodny


in Schomburg / Lagodny / Glas / Hackner, International Mutual Legal Assistance in Criminal Matters, 5th edition, §3, marginal no. 7, 8).

The present case must therefore be thought of as if the Minister-President of a German state had the intention of leading his state to independence and had prepared a referendum with other members of the government in which the citizens of the state should vote on independence. Furthermore, the case is such that the Prime Minister knows both that the Federal Constitutional Court has declared the intended referendum to be unconstitutional, and because of warnings from the police must expect that it sent on election day between the citizens and from all over Germany Police officers will come to violent disputes.

Such behavior would not be punishable under German law, in particular not as "high treason against the Federation" in the sense of § 81 Abs. 1 StGB. This is - as far as concerns the fact variant in question here -:
  • "Anyone who undertakes to use force or threats of violence to endanger the existence of the Federal Republic of Germany shall be punished with life imprisonment or imprisonment of not less than 10 years."

In § 92 Abs. 1 StGB provides the law the definition of what is meant by "impairment of the existence of the Federal Republic of Germany". According to this, the one who affects the existence of the Federal Republic of Germany "separates a region belonging to it". This also includes the company, to bring an area belonging to the Federal Republic of Germany into self-employment (Fischer, StGB, 64th edition, § 92, marginal 4).

For the purposes of §§ 81, 92 of the Criminal Code, a referendum with the aim of bringing a region of a general state into independence unquestionably pursues this purpose. However, the case to be assessed lacks the element of "violence" for criminal liability. For the purposes of this provision, what is meant by "force" is clarified by the German criminal justice system.


The Federal Court of Justice (judgment of the 3rd Criminal Senate of 23 November 1983, 3 StR 256/83, cited by juris) had already decided on a not only comparable, but in many details even the same case. It was about the criminal responsibility of a leader of a citizens' initiative, which had called in the context of the then politically highly controversial expansion of Frankfurt Airport ("Runway West") to mass demonstrations and protests at the airport. In response to the call, several thousand demonstrators appeared and delivered hours of heavy, tumultuous confrontations with the police units from all over Germany, during which a large number of people, policemen and demonstrators, were injured and material damage was caused.

By calling for these demonstrations, the defendant pursued the goal of exerting so much political pressure on the government of the state of Hesse that it should be forced to cancel the expansion project.

The Higher Regional Court in Frankfurt am Main had sentenced the defendant to two years' imprisonment for attempted coercion of a country's government.

In response to the defendant's appeal, however, the Federal Court of Justice overturned this guilty verdict.

Pursuant to §105 (1) of the Criminal Code, the person who unlawfully forces the government of a country by force or by threat of violence to refrain from exercising its powers is punished in this case.

In the trial, the Federal Court of Justice first stated that the defendant had announced physical violence through his call for a mass demonstration and had also used it - through others. He had not only intended to block the entrances and exits of the airport by the presence of thousands of demonstrators, but he had also accepted for the sake of sustained pressure on the government of the Land of Hesse approvingly that were committed by the present violence.


The riots and violence occurring then should therefore be attributed to him.

Furthermore, the Federal Court of Justice has stated, however, that it is not sufficient for the realization of the offense that an offender threatens or uses any force associated with physical effects in order to induce the constitutional body to take the desired action. A judgment as to whether an actual event is to be regarded as violence in the sense of a particular criminal offense could not be obtained simply by measuring this process by abstractly describing the concept of violence. In this context, the Federal Court of Justice stated:

"If the perpetrator wants to compel the constitutional body to exercise power not directly against the constitutional body, but against third parties and property, then it is in fact only if the pressure exerted on the constitutional organ is appropriate, taking into account all circumstances characterizing the situation of coercion. to bow to the will of the constitutional organ contrary to the claim of the perpetrator."

According to the further remarks of the Federal Court of Justice, the definition of violence within the framework of the offense of coercion of constitutional organs should expressly be "based on the concept of violence in the offence of high treason". Because the two criminal provisions are closely related. High treason would then occur if the respective constitutional body was completely eliminated in the free decision, coercion of the constitutional body would then exist if this free choice in individual cases should be eliminated. According to the will of the legislator, the threshold for accepting violence against a constitutional body should be set higher than in the criminal provisions governing individual legal protection. A further coercive effect was to be demanded, which in principle would be able to induce the government to respond to the required measures.

However, from the extent of the actions to be taken by the defendant alone, nothing could be deduced from the point of view of the fact that the local police forces, despite reinforcements from other federal states, were insufficient to act successfully against the disturbers.


Moreover, "in large-scale demonstrations, the attraction of police forces from neighbouring Lands is not uncommon and therefore of little significance in this context".
In addition, the Federal Court of Justice stated:
  • "Even for the general compulsion to coercion, the Federal Supreme Court has emphasized that the suitability of the means of coercion to motivate the threatened in the sense of the desire of the perpetrator, is not only factual, but normative condition of fact; it is dispensed with if the threatened one can be expected to stand the threat in prudent self-assertion. In the case of the crime of coercion of collegiate constitutional bodies, such a normative assessment of the means of coercion is even more indispensable. The coercive effect of violence or the threat of violence is therefore eliminated if and to the extent that the constitutional organs referred to in §105 of the Criminal Code can and must be expected due to their special duty to the general public to withstand pressure situations in the context of violent political conflicts. If the government of a country is forced by acts of violence against third parties or objects to fulfill certain political demands, then these excesses are only then violence within the meaning of §105 StGB, if the pressure from them reaches such a degree that a responsible government Forced to surrender before the demand of the violent perpetrators forced to avert serious damage to the community or individual citizens."
The Federal Court then comes to the conclusion that the riots at Frankfurt airport were not likely to force the Hesse government to meet the demands of the defendant, because "the state government would have their own credibility and citizens' confidence in the stability of democratic institutions to organized violence ".


Applying these principles to the present case, it should first of all be stated that the persecuted person, as the initiator and supporter of the implementation of the referendum, would be subject to the violence that took place on election day. However, according to their nature, extent and effect, these would not be more significant than the riots in Frankfurt at that time. As the course of history shows, they would not have been able to pressurize the government in such a way that it would have been forced to give in to the claims of the perpetrators of violence. Contrary to what could possibly be seen under Spanish law, in Germany the "power of the crowd" that accompanies every major concentration of people alone would not be suitable for achieving the increased level of violence demanded by § 81 of the Criminal Code. Therefore, in the absence of criminal liability, an extradition because of the accusation of "rebellion" is therefore out of the question.


It is different in so far as it concerns the accusation of "corruption" in the form of disloyalty. In that regard, extradition - in comparison to the abovementioned standard of assessment - is in any case not inadmissible from the outset.

Since the Spanish judicial authorities criminally accused the victim of misappropriation of public funds pursuant to Art. 432, 252 of the Penal Code as a catalog act within the meaning of Section 81 (3) IRG in conjunction with Article 2 (2) of the Framework Decision on the European arrest warrant (RbEuHb) have described as "corruption" and the penalty for this under Spanish law is a maximum of more than three years, the existence of double criminal liability in this respect is not to be examined in principle.

The classification of the act in the crime group "corruption" is not objectionable. Crucial for the assignment of the act to a group of offenders is initially the view of the requesting state (evil in Grützner / Pötz / Kreß / Gazeas, International mutual legal assistance in criminal matters, 3rd edition, §81 IRG, No. 58). However, the Higher Regional Court must check the classification of a crime group for their conclusiveness (Böse, loc. Cit., Para. 60), namely to the extent to which the material presentation in the European arrest warrant permits a comprehensible inference to the assignment (OLG Karlsruhe, order of 24 October 2014, 1 AK 90/14, cited from juris).


In support of this, the Supreme Court of Madrid has stated that this classification refers to the content of the United Nations Convention against corruption of 31 October 2003, which was signed by Spain on 16 September 2005. It says in Art. 17 concerning the criminalization of corruption:
  • "Each State Party shall take the necessary legislative and other measures to commit the following acts, if committed intentionally, as a criminal offense: the embezzlement, misappropriation or other unlawful use of property, public or private funds or securities or other valuables which the public Position by the official in his favour or in favour of another person or entity. "
Accordingly, the Special Prosecutor's Office, which is responsible for the fight against corruption in Spain, is also assigned to deal with cases of particular importance, which include the misappropriation of public funds.

After all, according to the European understanding of the law, the offence area of ​​corruption also includes conduct that would constitute unfaithfulness under German national law (Böse, cited above, paragraph 32). For example, the report from the Commission to the Council and the European Parliament on combating corruption in the EU of 3 February 2014 also deals with the term "misappropriation of public funds" under the generic term "corruption".

However, with regard to the allegation of misappropriation of public funds, the factual presentation in the European Arrest Warrant of 23 March 2018, in conjunction with the supplementary report of the examining magistrate of 21 March 2018, does not meet the requirements of §83a (1) No. 5 IRG.


It does not provide a sufficient description of the circumstances under which the offense was committed with a necessary concretization of the allegation, which allows a sufficient inference on the events accused to the persecuted. Although the statement makes it sufficiently clear that the persecutee was responsible for the costs of the referendum, amounting to around 1.6 million euros (at least politically), and that the regional government was not allowed to use any budget funds because of the ban by the Spanish constitutional court. However, it remains unclear whether the state was actually burdened with these costs by being paid from the regional budget and whether the persecuted person caused this.

The legal provisions sent by the Spanish authorities and the legal assessment made do not indicate whether even the financial commitment for the referendum would be punishable without actual payments under Spanish law. In any event, on the basis of the information provided so far, it also seems conceivable that costs incurred after the Catalan regional government were dismissed were either no longer, or at least not public, or even - as the persecuted person claims at his hearing before the District Court and in his brief Assistants of 5 April 2018 - were paid out of private donations, and thus in fact no damage was done to the public property to be supervised by the persecuted person.

In that regard, the Senate has asked the State Attorney General of Schleswig-Holstein to fulfill its obligations under section 30 (1) IRG to give the Spanish authorities the opportunity to provide additional information as far as possible in order to enable the Senate in due time to finalize the decision Admissibility of extradition for this allegation. On the other hand, it does not follow from this that - and this must be turned down for the decision on the issue of extradition custody - extradition on grounds of allegation of misappropriation of public funds would be inadmissible from the outset.


A check on whether the extradition request is based on a political offence does not take place in the event of extradition on the basis of a European arrest warrant (§§82, 6 (1) IRG).

Evidence that in the case of his extradition, the persecuted person could be exposed to the risk of political persecution within the meaning of §6 (2) IRG, as the advocate said, that the Kingdom of Spain would not be under the pretext of the persecuted people because of their political views can condemn acts committed by him, is not apparent. With the misappropriation of public funds, the persecuted person is accused of a concrete offence, also punishable by German law, as infidelity, not of his political convictions, which was obviously motive for the deeds - if he should have committed them.

Although the extradition obstacle to political persecution should also be examined, if the request for extradition is based on acts of national hostility and on account of certain facts (including e.g. a particular intensity of the persecution, the advance of criminal acts, manipulation of the accusation or a forgery of evidence), despite the criminal character of the acts in question, it is to be feared that the persecuted person will face the threat of treatment which, for political reasons, is more severe than is otherwise customary for the prosecution of similar dangerous offenses in the requesting state (see BVerfGE 80, 315, Saarland Higher Regional Court Saarbrücken, loc. cit., Nachw.).

However, even in the light of the written pleading of the víctima of the persecution on 5 April 2018, there is no such material reason as to suggest that in the documents sent by the Spanish authorities criminal acts by the victim are advanced in order to be taken for political reasons.

The principles of mutual trust between Member States and mutual recognition are of fundamental importance in Union law as they allow the creation and maintenance of an area without internal borders.


Specifically, the principle of mutual trust, in particular with regard to the area of ​​freedom, security and justice, requires each Member State, other than exceptional circumstances, to assume that all other Member States are in compliance with EU law and, in particular, with recognized fundamental rights note (see ECJ NJW 2016, 1709, 1711 mw N).

There is the ground of liability of § 15 para. 1 no. 1 IRG (danger of absconding). The persecuted has no occupational or family ties in the Federal Republic of Germany. He has been found here in transit. He has previously evaded the Spanish authorities by fleeing to Belgium.

However, the flight incentive (and thus also the risk of absconding) is, after it has been established that extradition is out of the question because of the more serious reproach of  "rebellion", is significantly alleviated. To ensure the proper further execution of the extradition procedure, it is therefore no longer necessary to carry out the extradition custody. Less restrictive measures provide sufficient assurance that the purpose of the extradition detention is achieved by them (§25 (1) IRG). Pursuant to Section 25 (2) IRG in conjunction with Section 116 (1) StPO, the Senate thus suspends the further execution of the extradition custody against the conditions specified in the operative part.

These requirements appear to be sufficient but also necessary to ensure the proper conduct of the extradition procedure.

Pursuant to Section 116 (4) of the Code of Criminal Procedure, the persecuted person is informed that he must reckon with the re-enforcement of the warrant if he
  • (a) grossly contravenes imposed obligations and restrictions;
  • b) meets institutions to escape;
  • (c) fails to duly charge without sufficient apology or otherwise showing that the trust placed in him was not justified; or if
  • (d) new circumstances necessitate the re-execution of the extradition custody.

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