The current process against Prof. Clara Ponsati of St. Andrew’s University is a misuse of the European Arrest Warrant (EAW).
We all have an interest that criminals, especially serious criminals, cannot escape justice in an increasingly open Europe by hopping across a border. But the EAW can only function if the states have confidence in the justice systems of the other states entitled to issue a warrant. This must mean especially that it is not being misused for political purposes.
The background to the charges against Prof. Ponsati is political not criminal.
There have been great political developments in Spain since the death of Franco, and Spain’s accession to the EU. The Basque land for instance was brutally suppressed by Franco: Guernica was only the start of decades of repression which involved torture and tens of thousands of executions by the Falangist state. This gave rise to the terrorism and murders perpetrated by ETA. The Spanish state negotiated with (sometimes newly) peaceful Basque politicians. A deal was done. ETA recently finally laid down its arms.
The Catalan Independistas have always pursued their aims by democratic means and have never used nor threatened violence. Perhaps 45% of Catalans support full independence, around a further 30% want a redefined relationship with the rest of Spain. In 2006 a deal was done: it was approved by the Catalan people in a referendum by a majority of 78% and also by the Spanish national parliament.
It was blocked by an application from Mariano Rajoy’s People’s Party (PP) to the Spanish constitutional court. Since then political developments have been blocked by the PP and that court. The fiscal arrangements which apply to the Basque land were deemed ‘not negotiable’ by Rajoy. Constitutional changes rejected in 2010 as ‘unconstitutional’ in the case of Catalonia passed without problem for Andalusia in 2007. Clearly, the Spanish government and constitutional court’s understanding of ‘constitutional’ and ‘negotiable’ is political and not legal.
Rajoy and the People’s Party…
Señor “Law and Order” Rajoy was one of the PP’s founders, is currently its head, and has been its moving spirit for decades. It is the ‘democratic’ version of Franco’s Falange, and is possibly the most corrupt political party in Europe, winning that Oscar against very strong competition.
“Case after case proves that the PP engaged in illegal funding at the national and regional levels. Its actions have scandalized Spanish society, … And Mariano Rajoy is ultimately responsible for this behavior and the lack of response to it.” El Pais
This is the prime minister and party which claims simply to be upholding the law?
The Spanish government has repressed with the most brutal means demonstrations in favour of independence as being ‘unconstitutional’, but (not so) strangely anti-democratic and openly Falangist demonstrations in Madrid in favour of ‘unity’ have met with no reaction by the police.
…and the Spanish constitution and constitutional court
The Spanish constitution was drawn up in the shadow of Franco’s death and threats by the Falangists and some elements in the army of re-imposing Fascism. Compromises were made. To present this constitution as the last word in constitutional law embodying universal values which must be upheld is disingenuous. It is a flawed work in progress.
The Spanish constitutional court charged with interpreting that constitution is also not an independent and universally respected institution. It is not even a formal part of the Spanish judiciary, it is a political body appointed by politicians: “The court consists of twelve magistrates (justices) who serve for nine-year terms. Four of these are nominated by the Congress of Deputies, four by the Senate, two by the executive branch of the government, and two by the General Council of the Judiciary.”
Conditions under which Prof. Ponsati would be held
In this BBC article the conditions under which other Catalan ex-ministers are held are described. They have not been convicted: but they are being held on remand for months with dangerous convicted murderers. They were treated in a humiliating way during the arrest process, including verbal abuse by the police, aggressive handcuffing, and strip searching. Is this treatment that Rajoy understands as ‘upholding the law’? It appears to be more motivated by the wish to humiliate and intimidate than any security concerns.
Implications of this case for Scottish and European justice
By examining this application under the EAW very carefully, the Scottish courts would be protecting justice in Scotland and Europe from the arbitrary misuse of law by dark forces which threaten not just democratic politics in Spain, but also the continued survival of the EAW itself.
Scottish justice must do what the Belgian courts were in the process of doing: examine in detail the context of the charges under which Clara Ponsati would be extradited. By no coincidence the Spanish courts withdrew the warrant when this detailed examination was about to start in the Belgian courts. Spanish justice (and the intimately related politics) apparently shies away from the examination and light of impartial justice.
Some of that light must be shone by the Scottish courts on a murky and tendentious case against a democratic politician and mild academic who teaches in Scotland’s oldest university.