Schleswig-Holstein question backfires for Madrid

For years the Spanish government has accused Carles Puigdemont, former president of Catalonia and head of the region’s separatist movement, of leading a rebellion against the Spanish state.

But Madrid’s hope of putting the exiled leader in a Spanish dock to face that charge evaporated on Thursday evening, thanks to a regional court in northern Germany. The court in Schleswig, two hours north of Hamburg, dismissed the rebellion charge in the European Arrest Warrant (EWA) used to detain Puigdemont last month near the German-Danish border.

Two weeks on, just one of the three charges in that warrant now survives. The first charge of sedition – conduct tending towards insurrection against the established order – was not even considered here because there is no equivalent in German law.

Earlier this week prosecutors recommended the court consider extraditing Puigdemont on the remaining two charges. But the Schleswig court has binned the second most serious charge – rebellion – which would carry a prison sentence of up to 30 years in Spain.

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While there is an equivalent in Germany – treason – the precondition is that the accused incited violence. While there were scuffles around last year’s independence referendum in Catalonia, the Schleswig court sees no evidence that Puigdemont egged on protesters.

And so the last, and least serious charge, remains as grounds for extradition: corruption. Madrid accuses Puigdemont of embezzling public funds amounting to €1.6 million to finance the referendum – a charge that carries a prison sentence of up to seven years. The Catalan leader disputes the figure and says there is nothing illegal about using public funds for a public vote.

But even this charge may yet come to nothing. In its  statement on Thursday night, the court said the corruption charge was “not inadmissable from the outset” – a double negative suggesting some doubts about even this final charge. The court has requested further information from Spain before it makes any final ruling on handing over the Catalan politician.

As crowds gathered on Friday morning before the prison he called home for almost two weeks – in Neumünster, one hour north of Hamburg – Puigdemont is not yet a free man, but his prospects are far less bleak. “See you tomorrow,” he tweeted on Thursday night, “thanks to all concerned.”

Rebellion charge

Under the terms of his bail, Puigdemont must meet four conditions: he must not leave Germany, he must register his address, he must report once a week to police in Neumünster and he must appear when requested by the prosecutor and court. But after five months in self-imposed exile, and two weeks detained behind bars, his detention at a motorway rest stop last month has dealt him a much better hand.

Spain’s justice minister Rafael Catalá admitted as much through gritted teeth on Thursday evening, saying that, while he would respect the German court decision, he “liked some judicial rulings more than others”.

The most important point about Thursday’s court decision: even if the German court decides to hand over Puigdemont to Spain, it has struck out the rebellion charge, meaning Madrid cannot reinstate it if or when it puts him in the dock.

After reissuing its arrest warrant against Puigdemont, reportedly tracking him through Europe and reporting his whereabouts to German authorities, Madrid’s initial victory is now hollow. And though the German court found no evidence he faced political persecution, knocking back a key argument of the Puigdemont legal team against extradition, the remaining charge he faces is far less serious than the others, thus the offer of bail.

With that, one region of Europe has spread out a judicial fire blanket over events in another region. It also creates a final opportunity for opposing camps in Madrid and Barcelona to end their game of chicken and perhaps even for the Spanish government to accept outside mediation.

Without that Spain’s neighbours insist they can not and will not intervene in what they see as an internal matter. But given their European Arrest Warrant (EWA) against Puigdemont now looks like a well-plucked chicken, Madrid may be wary of seeking European assistance a second time in this matter.

For generations, history students have grappled with the head-wrecking Schleswig-Holstein question of the Bismarck era. That was a diplomatic stand-off so complicated that, by its end, the joke was that only two people still understood it: one was dead and the other insane.

Soon Madrid will get an answer to a Schleswig-Holstein question all of its own – but it may already be sorry it even asked.