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if need be to read the whole post http://www.poderjudicial.es/stfls/TRIBUNAL%20SUPREMO/DOCUMENTOS%20DE%20INTER%C3%89S/TS%20Penal%20auto%2022%20enero%202018.pdf
22 JAN 2018
Tribunal Supremo: Auto del juez Llarena en el que deniega dictar orden detencion internacional contra Puigdemont.
https://www.scribd.com/document/369737323/Auto-del-juez-Llarena-en-el-que-deniega-dictar-orden-detencion-internacional-contra-Puigdemont
El Tribunal Supremo deniega la petición de la Fiscalía de enviar a Dinamarca una orden europea de detención contra el expresidente de la Generalitat Carles Puigdemont.
http://www.poderjudicial.es/portal/site/cgpj/menuitem.65d2c4456b6ddb628e635fc1dc432ea0/?vgnextoid=84ea6fbfacd11610VgnVCM1000006f48ac0aRCRD&vgnextchannel=d060f20408619210VgnVCM100000cb34e20aRCRD&vgnextfmt=default&vgnextlocale=es_ES
...ooo000ooo...
SUPREME COURT
Criminal Chamber
Resolutioni
SPECIAL
CASE
No.:
20907/2017
Decision:
Free Text Resolution
From:
State Prosecutor’s Office
Resolution
Date: 01/22/2018
Investigating
judge: Mr. Pablo Llarena Conde
Chamber
Secretary: Mrs. María Antonia Cao Barredo
Written
by: SOP
Order refusing to reiterate a European arrest warrant for Mr.
Carles Puigdemont i Casamajó, which was previously withdrawn.
|
Special Case No.: 20907/2017
Investigating judge: Mr. Pablo Llarena Conde
Chamber
Secretary: Mrs. María Antonia Cao Barredo
SUPREME COURT
Criminal Chamber
Resolution
Investigating judge: Hon. Mr. Pablo Llarena Conde
In the City of Madrid, on the twenty-second of
January, two thousand and eighteen.
I. BACKGROUND FACTS
FIRST.-
On October 31, 2017, the Hon. Second Chamber decided:
«1) To declare the jurisdiction of this Chamber for the investigation and, where appropriate, the prosecution for the crimes of rebellion, sedition and embezzlement against Ms. Carme Forcadell i Lluis, Mr. Lluís María Corominas i Diez, Mr. Lluis Guinó i Subirós, Ms. Anna Simó i Castelló, Ms. Ramona Barrufet and Santacana, Mr. Joan Josep Nuet i Pujals. To also extend this jurisdiction, in the case where the investigating judge so deems appropriate, with respect to those other criminal cases currently in process and that may refer to facts inseparable from those that have been initially attributed to the defendants.
2) To appoint the judge of this Excellent Chamber Mr. Pablo Llarena Conde, as Investigating judge, according to the established turn. This designation will be communicated to him to the appropriate effects».
SECOND.- On November 24, 2017 this Investigating judge
resolved the following:
«To broaden the subjective area of investigation of the present actions, declaring the jurisdiction of this Court to try the criminal responsibility that, for the facts under investigation in the Preliminary Measures 82/2017 of the Court of Central Instruction No. 3, Mr. Carles Puigdemont i Casamajó, Mr. Oriol Junqueras i Vies, Mr. Jordi Turul [sic] i Negre, Mr. Raül Romeva i Rueda, Mr. Antonio Comín i Oliveres, Mr. Josep Rull and Andreu, Ms. Dolors Bassa i Coll, Ms. Meritxell Borras i Solé, Ms. Clara Ponsatí i Obiols, Mr. Joaquim Forn and Chiariello, Mr. Lluis Puig i Gordi, Mr. Carles Mundo i Blanch, Mr. Santiago Vila i Vicente, Ms. Meritxell Serret i Aleu, Mr. Jordi Sánchez Picanyol and Mr. Jordi Cuixart Navarro may be accountable. This is notwithstanding the proceedings against Mr. Josep Lluis Trapero Alvarez and Ms. Teresa Laplana Cocer, as well as against any other possible liable parties on whom the investigation may project responsibility, by said Court of Central Instruction.
The Central Court of Instruction No. 3 is requested, while retaining the actions that are conducive to its own jurisdictional work, to forward the original or testified actions that refer to the investigated people referred to at the start of this operative part».
The Central Court of Instruction No. 3 is requested, while retaining the actions that are conducive to its own jurisdictional work, to forward the original or testified actions that refer to the investigated people referred to at the start of this operative part».
THIRD.- In the Preliminary Measures 82/2017 of the Central Court of Instruction No. 3 of the National Court, dated November 3, 2017, twowarrants were issued for the search, capture and imprisonment of Mr. Carles Puigdemont i Casamajó, Mr. Antonio Comín i Oliveres. Mr. Lluis Puig i Gordi, Ms. Meritxell Serret i Aleu and Ms. Clara Ponsatí i Obiols, and the appropriate European arrest and surrender warrant were issued for the purpose of extradition, so as to exercise the relevant criminal prosecution.
FOUR.-
On December 5, 2017, by Resolution of this Investigating judge, the
European arrest and surrender
warrant, as well
as the international
detention orders,
were withdrawn by a Rectification
order.
II. LEGAL REASONING
FIRST.- The Fiscal
Ministry, with perfect knowledge of the procedural situation of the
case, requests that a European arrest warrant be issued against the
defendant Mr. Carles Puigdemont Casamajó, who may have left the
territory of Belgium in which he had established his residence, to
participate in aa academic activity that will take place in a
parfticular university in Copenhagen (Denmark). The request of the
Public Prfosecutor also calls for the immediate execution of what is
decided upon, as the permanence of the prosecuted in this new
territory might turn out to be fleeting.
The request, which fits perfectly into the Public Ministry’s
function to promote the action of Justice and is a reflection of the
requirement collection in art. 39.3 of Law 23/2014, it seems
reasonable if it is borne in mind that the investigated person is
outside the national territory precisely to avoid a criminal
prosecution that seeks to determine the possible scope of his
responsibility in the facts being investigated. Nothing would seem
more logical than to order his detention, in the territory of Europe,
of someone who has fled beyond our borders, if the State Security
Forces and Corps have Already been ordered to proceed to his
detention, for his subsequent entry into prison.
However, the application faces nuances that make us have to
postpone the eventual international detention order it requests.
SECOND.- It is striking that a person who is a fugitive from
justice after his furtive departure from our country, reveals in
advance his intention to move from the place where he sought his
initial refuge, and also proclaims the specific place where he will
be present. That the behaviour may be seeking the detention that the
Ministry Public requests is something that does not escape the
Investigating judge, especially when the investigated person
continues to elude appearing in the procedure, and has proclaimed
that he eluded it so as not to risk a possible deprivation of
freedom.
The analysis of this situation, converges with the notoriety that
has taken its proclaimed intention to restore the same government
under which the so-called Catalan republic was proclaimed, and
to promote its implementation with that government. This will seeks
to return to the moment immediately before when the Spanish Senate
authorized the application of Article 155 of our fundamental rule
[the Constitution], deactivating the only instrument that has been
proved capable of restoring the constitutional order.
And the obligatory analysis that the measure requested would
effectively serve a constitutional interest that legitimizes it,
converges with a third element, facilitated in this case by the legal
report presented by the lawyers of the Parliament of Catalonia. In it
it is stated that the investigated person cannot claim his
investiture as President of the Governing Council of Catalonia, if he
freely avoids - for whatever reason - his appearance before the
Assembly that has to vote him in.
All
these elements constitute the factual support that, in a rational
way, illustrates that the investigated person’s boast that he can
move to a specific place, he has noother purpose than to seek
detention, in order to subvert the purpose of a procedural instrument
that is planned to ensure compliance with the legal system, making it
a mechanism that allows him to circumvent the legal order that
governs parliamentary activity.
Given
the legal impossibility of opting for an investiture without
appearing before Parliament, the provocation of a detention abroad
seeks to equip the investigated person with a justification that his
absence is not a result of his free decision as a fugitive from
justice, but rather the consequence of a situation that is imposed on him. He thus seeks to favour the unconstitutional and
illegal strategy to which this procedure is designed to put an end,
also forcing a context in which to be able to delegate his vote, as
if he were in the same state as those who are zat the disposal of
this Court and have been provisionally deprived of their freedom. In
this way, the deprivation of his freedom would be instrumentalized in
order to attain the investiture and the vote that he cannot achieve
in Parliamentar, though the investigated person would persevere in
evading his subjection to the criminal prosecution, avoiding
submitting himself to the national jurisdiction and opposing from
abroad the extradition that may be requested.
It is therefore evident that the instruments of deprivation of
freedom, that the Spanish Constitution and legal system enable for
the greater effectiveness of the legal order, must not be deployed to
facilitate its transgression and rupture. And the remote chance that
the investigated person’s journey does not respond to what has been
set out, but rather to an exclusively academic concern, does not make
it reasonable not to consider the possibility that has been
expressed, and forces us to postpone the arrest warrant to a moment -
not necessarily far away - in which the constitutional order and the
normal operation of Parliament are not at risk on account of an
arrest that - as the Public Prosecutor defends - would be logical in
another context.
THIRD.- Futhermore, the decision to withdraw international
arrest warrants, originates in the very nature of the facts being
prosecuted.
In
the admission itself
of the procedure it
was stated
that the facts being investigated
could amount to a
crime of a multisubjective nature, and the investigation
shows that there are indications that it would have been committed
thanks to the
concert of all investigated, with an inseparable legal unity,
that is, that the establishment
of different criminal responsibilities must be carried out in a
unified manner, because otherwise the continence of the case might
be broken and this
could lead the procedure
to contradictory and divergent answers for the various
participants.
The
resolution of
December 5, 2017 also stated
that the arrest warrants,
far from facilitating the proper
development of the procedure, could introduce an unacceptable
restriction of the object of the case
since, it being
conceivable that the executing
State (in application of Articles 3 to 5 of the Council Framework
Decision of 13 June 2002 on the European arrest warrant)
might partially
reject the
execution of the arrest warrants,
a restriction of the prosecution
for the investigated persons
who are fugitives
becomes possible.
Were this to happen,
it would make it
hard to give the homogeneous response that
the accumulation of proceedings before this Court had
justified, because it
would introduce a substantive distortion to
the defence of the defendants
that are indeed
at the disposal
of this Investigating body, who could be investigated and prosecuted
for all the crimes that the Investigating judge contemplates, thus
placing them at a legal disadvantage
compared to those who are fugitives.
Contrary
to what has been expressed in some critical
circles, the restriction of the list
of offences by a foreign State to whom the
surrender of a
fugitive from justice is requested
is not evidence
that the criminal qualification of the facts by the Spanish
jurisdiction is inadequate or erroneous. The executing
State, can merely
verify that the facts for which the surrender
of a detainee is requested
may be criminal offences
according to their legal system or, if it enters the legal
classification of the behaviour,
it does so from its own legal system, which is not the
one under which the bans held those
investigated, and it does
so without even knowing the details of the defendants' actions, which
are unknown because they are still
undergoing investigation.
In
any event,
the decision to withdraw the EAW
does not rest on a distrust of the jurisdictional action of a
particular State,
but on the
logical divergences that, in complex crimes, may exist between legal
systems of different States of the Union. I mean crimes that - like
the one under investigation -,
are not listed in the agreed
list and collected in Article 2, paragraph 2, of the Framework
Decision (Article
20.1 of Law 23/2014, of November 20th,
on mutual
recognition of criminal resolutions
in the European Union), for which the control of
double typification
has been suppressed. And these
divergences will not only
be encouraged by
the different legislative options
of the parliaments of the States, but may be enhanced because in
the initial period
of the investigation, it may not be
possible for many of the nuances that
influence the criminal legal conception of the facts to
be conveyed
to the executing
State.
This
circumstance, together with the fact that the request of the Public
Prosecutor’s Office
is not
accompanied by
either the
invoked Danish legislation as required by Article
281.2 LEC, or of
any doctrinal or
jurisprudential reasoning
that - from the facts that are investigated- endorses its
analysis of the internal legal order of Denmark, means
that we do not know how the request for international collaboration
can influence the criminal response provided by the Spanish
legislator, specially
when aspects of criminal legal relevance are still being investigated
that might be essential
for the executing
State.
Given
these considerations,
III.
DECISION
I
RULE: To turn down
the requested international
arrest warrant for Mr. Carles Puigdemont i Casamajó, postponing it,
if need be, to a
moment in which the constitutional order and normal parliamentary
functioning may not be affected by its issuance, in addition to the
development of the investigation allowing
the executing
State to carry out a full evaluation of the facts that support the
request for collaboration.
This
is decided, mandated and signed by Pablo
Llarena Conde, Judge of the Supreme Court, which
I, as the
lawyer of the Administration of Justice, certify.
i Translated
by M. Strubell from the original text.
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