Dr Paul Arnell is a reader in law at Robert Gordon University in Aberdeen
THE European Arrest Warrant (EAW) issued by Spain for the extradition of Clara Ponsati is both routine and extraordinary.
It is routine in that the EAW system is well-established with requests to Scotland from fellow EU member states being relatively common. Edinburgh Sheriff Court, which deals with extradition hearings, regularly hears cases originating in requests from Spain, Poland and other EU member states.
On the other hand the EAW pertaining to Professor Ponsati is extraordinary because it relates to the politically charged situation in Spain following the independence referendum in Catalonia in December last year.
The case conflates independence, rebellion, human rights and the sedate world of academia in St Andrews – amongst other issues. It also, of course, has a particular resonance in Scotland.
Ponsati is charged with rebellion and misusing €1.6 million in public funds. Her legal team has stated that she will stridently oppose her extradition. Several arguments can be put forward. A first is that the acts she committed are not criminal in Scotland. In other words, the double criminality requirement is not satisfied. In this vein it is notable that a German court recently decided that the extradition of former Catalan leader Carles Puigdemont for rebellion was not tenable in that that crime did not exist in German criminal law.
In Scots law a crime seemingly mirroring rebellion – sedition – was abolished by the Scottish Parliament in 2010.
Whether the crime of treason in Scotland, largely based in the Treason Act 1351, satisfies the double criminality requirement is debatable.
There may also be some doubt that the double criminality requirement is met in regard to the charge of the misuse of public funds. The common law crime of breach of duty may, or may not, satisfy it. If it is decided that there are no offences in Scots law that correspond to those she is charged with in Spain Ponsati will not be extradited.
If the double criminality requirement is met some of the bars to extradition in the Extradition Act 2003 that may stop the process come into play. The most relevant appear to be those based on Ponsati’s political opinions and her human rights.
The law provides that an extradition is barred if the requesting state seeks the person in order to prosecute or punish her on account of her political opinions, or that she will be prejudiced at her trial for that reason. Ponsati’s legal team will undoubtedly make the argument that this is the case.
The law also provides that an extradition will be barred where there is a real risk that a requested person’s human rights will be violated afterwards. Most relevant here appears to be the right to a fair trial. If it can be established that there is a real risk that Ponsati will experience a flagrant denial of justice in Spain her extradition will not take place.
The law provides, however, there is a strong presumption that the human rights of requested persons will be upheld in fellow EU member states. The argument that she may not receive a fair trial in Spain, even in light of the notoriety of the referendum, is therefore likely to be a difficult one to establish.
Predicting the eventual outcome of Professor Ponsati’s case is difficult indeed. Its circumstances are unique. What is certain is that politically charged arguments will be put to Edinburgh Sheriff Court beginning July 30.
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