The Scotsman

‘Ex­tra­dit­ing Pon­sati to Spain is not a clear cut process and in­volves cer­tain pro­ce­dures’

- Dr Paul Ar­nell Crime · Society · White-collar Crime · Discrimination · Politics · Elections · Human Rights · Spain · St Andrews · Carles Puigdemont · Catalonia · U.S. Supreme Court · Edinburgh · United Kingdom · European Union

Asec­ond Euro­pean Ar­rest War­rant (EAW) seek­ing St An­drews aca­demic Clara Pon­sati has been is­sued by Spain. The first EAW was with­drawn in June last year fol­low­ing a de­ci­sion of a Ger­man court in the case of for­mer Cata­lan pres­i­dent Car­les Puigde­mont. Pro­fes­sor Pon­sati is ac­cused of the crime of sedi­tion aris­ing from her role in the ref­er­en­dum held in Cat­alo­nia in Oc­to­ber 2017.

There are two main dif­fer­ences be­tween Spain’s first at­tempt and the present one. The first is that in Oc­to­ber Spain’s Supreme Court con­victed and sen­tenced nine

Cata­lan sep­a­ratist lead­ers for sedi­tion, mis­use of public funds and con­tempt of court. The sec­ond is that Spain is now seek­ing Pon­sati for sedi­tion, whereas she was orig­i­nally sought for the crimes of re­bel­lion and mis­use of public funds. Th­ese two de­vel­op­ments ap­pear to have led the Span­ish au­thor­i­ties to be­lieve that they will be suc­cess­ful this time around.

Spain’s suc­cess is far from cer­tain, how­ever. There are a num­ber of ar­gu­ments that Pon­sati’s lawyers will make at Ed­in­burgh Sheriff Court in op­po­si­tion to her ex­tra­di­tion. Th­ese will be framed by the Ex­tra­di­tion Act 2003. It is the le­gal ba­sis of the process

in the UK and con­tains a num­ber of grounds which can bar an ex­tra­di­tion.

One of the grounds likely to be re­lied upon is that the war­rant is­sued by Spain is for the pur­pose of pros­e­cut­ing Pon­sati for her po­lit­i­cal opin­ions or that her trial will be prej­u­diced on ac­count of them. This rule is what re­mains of the tra­di­tional po­lit­i­cal of­fence ex­cep­tion to ex­tra­di­tion in UK law. No­tably, the Frame­work De­ci­sion cre­at­ing the EAW sys­tem con­tains no ref­er­ence to a po­lit­i­cal ex­cep­tion.

A sec­ond ar­gu­ment likely to be made is that Pon­sati’s ex­tra­di­tion to Spain will lead to a vi­o­la­tion of her hu­man

rights. Par­tic­u­larly it may be ar­gued that a fair trial is im­pos­si­ble on ac­count of the promi­nence of the ref­er­en­dum and its con­se­quences. The right to be free from tor­ture and in­hu­man pun­ish­ment may also be ar­gued in light of the pris­ons in which she may be held.

Fi­nally, it may be ar­gued that the dou­ble crim­i­nal­ity prin­ci­ple of ex­tra­di­tion is not sat­is­fied in Pon­sati’s case. That pro­vides that an ex­tra­di­tion will only take place if the crime at is­sue is found in both the re­quest­ing and re­quested coun­tries.

The fate of th­ese ar­gu­ments, and thus Pon­sati her­self, is un­clear. What is cer­tain is that the EAW sys­tem is based upon mu­tual trust and recog­ni­tion whereby EU states hold the crim­i­nal jus­tice sys­tems of their part­ners in con­sid­er­able re­spect. Only ex­cep­tion­ally well-made ar­gu­ments against ex­tra­di­tion within the EU suc­ceed.

Whilst the Cat­alo­nian ref­er­en­dum was un­doubt­edly an event of con­sid­er­able mag­ni­tude, at first glance it ap­pears that Pon­sati’s case may not meet any of the tests that could pre­vent her from be­ing re­turned to Spain. The chal­lenge fac­ing her le­gal team is to con­vince a sheriff oth­er­wise.

Dr Paul Ar­nell, Law School, Robert Gor­don Univer­sity

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