Custody battle

After former Catalan president Carles Puigdemont lost his immunity as a Member of the European Parliament this week, the complex legal battle between Spain and Belgium that began in October 2017 entered another round. And once again, it looks like Belgium will emerge victorious.

In January, Belgian courts rejected an extradition request for Puigdemont's colleague Lluis Puig, audaciously arguing that Spain's Supreme Court lacked sufficient authority to demand his return. Why would they now make a different decision for Catalonia's ex-president (under whom Puig served as Culture Minister), especially given that they've dismissed all of Spain's previous attempts to bring him home?

Angered by Belgium's decision about Puig, Spain's Supreme Court has asked the European Court of Justice to publish guidelines on how a new European arrest warrant (EAW) for Puigdemont should be interpreted under EU law. But even if such a document materialises, it's hard to see how it could place Belgium under any legal obligation to return the pro-independence firebrand to his home country (which he would no doubt name as Catalonia first, Spain second).

Ironically, this is because of the EAW, which was introduced to make extradition agreements between EU countries more straightforward. According to the requirement of double-criminality, a court may refuse to extradite someone if they're accused of an offence that is not a crime in the country to which they've fled. Sedition and rebellion do exist in Belgian law, but they're defined differently; in other words, it's up to a Belgian judge to decide if Puigdemont's actions in Spain in 2017 would have been criminal offences in Belgium. If not, he's staying put.

There is, however, a list of over 30 offences - from arson to trafficking - where the double requirement doesn't apply: if you've committed an offence on this list, you can be extradited even if you're not judged to have committed a crime in your country of exile. It would be easier for Spain to secure Puigdemont's extradition if sedition, rebellion or the misuse of public funds were among these exempted offences, although it would still be up to a Belgian judge to make the final decision. But none of them are, presumably much to the relief of the Catalan's lawyer.

A country can also refuse to hand over a fugitive if they have grounds to suspect that they're being persecuted for their political opinions, or if they doubt that they would receive a fair trial in their home country. Belgium will almost certainly argue that Puigdemont wouldn't be treated with impartiality by Spain's Supreme Court, a body that's already handed nine of his colleagues draconian sentences for the same offences, and that, in any case, the double requirement isn't met. My money's on Belgium winning this round of the legal bout.