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Enhancing Public Accountability: Key Elements of the Public Office (Accountability) Bill 2025
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Partner Rebecca Niblock has been quoted in Criminal Law Week Issue 28 on the Catalan Extradition cases and their reflection on the EAW Framework Decision.
The Catalan extradition cases have proved useful in testing the boundaries of Council Framework Decision 2002/584/JHA. Prior to 2003, the “political offence” exception had been a standard article in most extradition treaties, providing a backstop against the use of international cooperation in criminal matters for ulterior purposes by malign state entities. The removal of the exception, to be replaced with a watered-down reference in the preamble (to allow refusals where an arrest warrant had been issued for the purpose of prosecuting or punishing a person on the grounds of her political opinions) was seen as radical at the time, and served to underscore the new era of mutual trust and recognition that the framework decision brought into being. Prior to the Catalan cases, national and EU courts had been seldom troubled by cases that fell squarely into the category of extraditions sought for political offences. Since October 2017, however, when the Catalan leaders fled, the German, Belgian and Scottish courts have had to consider how to deal with EAWs issued for pure political offences, including rebellion and sedition. Unlike Switzerland, not a member of the EU, which indicated that it would refuse extradition on the grounds that the offence was political, the national courts within the EU have found their own workarounds. The Higher Regional Court of the State of Schleswig Holstein refused Puigdemont’s extradition for rebellion on the grounds that dual criminality was not satisfied. Puigdemont, Ponsati and Comín were granted, and subsequently stripped of immunity, having been elected to the European Parliament in 2019, spawning a separate legal procedure that is ongoing. Puig Gordi, however, was not so elected and he was not therefore able to enjoy the disputed immunity of his fellow separatists. The Spanish EAW in his case was refused by a higher Belgian court (confirming the first instance court’s decision) in July 2021, in what might be seen as another workaround, that is, on the grounds that the court that issued the warrant had not had jurisdiction to do so. This, as the Spanish court rightly pointed out, was not envisaged in the framework decision. The Grand Chamber’s decision picks a careful line through the legal and political landmines set in this case, reiterating the importance of judicial cooperation but also confirming the cardinal importance of fundamental rights. Meanwhile, although it was deemed necessary to re-introduce an optional political offence exception into the surrender arrangements in the UK/EU Trade and Cooperation Agreement (at Art. 602), unsurprisingly, neither Spain nor the UK have opted in. UK lawyers keen to test this exception here will therefore be waiting a little while longer."
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