Today, the I. Senate for Criminal Matters of the Oberlandesgericht for the State of Schleswig-Holstein, upon application by the Prosecutor General, ordered the extradition detention of Carles Puigdemont, but also stayed the extradition arrest warrant’s execution under conditions.
The I. Senate for Criminal Matters is of the opinion that with respect to the accusation of “rebellion” extradition will ab initio not be granted.
The I. Senate argues that this is not true for the accusation of “corruption” in the sense of embezzlement. With respect to this accusation, it cannot be said that extradition will ab initio not be granted.
According to the Senate, there are no reasons to believe that Carles Puigdemont could be exposed to the danger of being persecuted for political reasons in the sense of § 6 Sec. (2) AICCM.
Among the conditions under which the extradition arrest warrant’s execution is stayed is the payment of a 75.000 € bail.
The Senate argues, among others, as follows:
An extradition of Mr. Puigdemont for “rebellion” according to Art. 472 Sec. 5 and 7 of the Spanish Criminal Code cannot be granted for legal reasons. The behavior that Mr. Puigdemont is accused of would not be criminally punishable in the Federal Republic of Germany under law applicable in Germany. The requirements of the possibly applicable criminal provision of high treason are not fulfilled because the requirement of “force” is not given. According to principles established by the Bundesgerichtshof in a comparable case, to assume “force” it does not suffice that an actor threatens with or applies force in order to make a constitutional institution behave in a desired way. Instead, it is necessary that the force that is being applied against others puts so much pressure on the constitutional institution that this pressure is suitable to bend the institution’s opposing will. This is not the case here. It is true that Mr. Puigdemont, as initiator and advocate of the referendum’s implementation, must be held responsible for the acts of violence committed on the day of the referendum. However, these acts of violence, according to their nature, scope, and effect, were not suitable to put so much pressure on the government that the government would have considered itself forced “to surrender to the demands of the perpetrators of violence”.
An extradition because of the accusation of embezzlement of public funds according to Art. 432, 252 of the Spanish Criminal Code, on the other hand, does not appear ab initio inadmissible. In this respect, the Senate needs to clarify further factual circumstances and needs to gather further information.
The Senate continues to argue that there are no reasons to believe that Mr. Puigdemont, if extradited, could be exposed to the danger of being persecuted for political reasons in the sense of § 6 Sec. (2) AICCM. Embezzlement of public funds is a specific criminal act that Mr. Puigdemont is accused of, that is also criminally punishable as embezzlement under German law, and that has nothing to do with his political beliefs.
According to the Senate, there is a danger that Mr. Puigdemont may avoid the extradition proceedings or the execution of the extradition. This danger, however, is strongly reduced since an extradition for the accusation of “rebellion” is inadmissible. Less invasive means than the enforcement of the extradition detention are sufficient to safeguard the extradition proceeding.
The Press Department of the Oberlandesgericht for the State of Schleswig-Holstein
The Press Secretary
Frauke Holmer
Richterin am Oberlandesgericht
Pressesprecherin
Gottorfstraße 2
24837 Schleswig
frauke.holmer@olg.landsh.de
Tel.: 04621/86-1328