Three years ago, the three judges of the Schleswig-Holstein High Court decided that they would not accept the extradition of President Carles Puigdemont for rebellion or sedition in Spain. That ruling marked a turning point because it was the biggest international disavowal of Spain’s judicial persecution against the Catalan pro-independence movement.
Among the bibliography consulted and cited in that sentence was a German reference manual on extradition (Internationale Rechtshilfe in Strafsachen), signed among others by Professor Wolfgang Schomburg. He was also the defence lawyer of Carles Puigdemont during the whole procedure of the European arrest warrant in Germany. An authority on judicial matters in his country, in this interview with VilaWeb he talks about his extensive career and, with professional prudence, about the situation of Puigdemont and the exiles. On the decision three years ago he states: “The Schleswig ruling will be taken into account in any case”.
Schomburg was born in 1948 in Spandau, on the western side of the Berlin Wall. There are few academic and professional CVs like his in the world of law. He studied at the Freie Universität in the German capital and began his career as a public prosecutor in West Berlin. In 1984 he became a judge at the Berlin Regional Court, a position he held for two years until he was appointed Senior Prosecutor in West Berlin. The next step in Schomburg’s glittering career came in 1989, when he was appointed undersecretary of state in the Justice Department of West Berlin. After the fall of the Wall, he was responsible for the entire reunited Berlin. Subsequently Schomburg acted successfully as counsel for high ranking defendants. In 1995 he was elected judge at the German Federal Supreme Court. Between 2001 and 2008 he was elected judge at the International Criminal Tribunal for the former Yugoslavia and in Rwanda by the UN General Assembly. His reputation was recognised in 2008 when he was awarded the Grand Cross of Merits of the Federal Republic of Germany.
Schomburg, who was an honorary professor and Doctor of Civil Law at Durham University (UK), is the author of some 200 pieces in criminal law, including articles, books and other texts, and is currently a lawyer at Ufer-Knauer, a law firm in Munich, Berlin and Frankfurt.
—What do you think of the Spanish government’s pardons to the Catalan political prisoners?
—It’s a sign of good will that should not be easily rejected or underestimated.
—For a political solution, would an amnesty for all repressed Catalan officials and civilian leaders, as called for by the PACE Human Rights Committee, be more useful?
—Legally, no doubt. But in terms of realpolitik it seems to be impossible for a government that wants to survive under the present circumstances. For the convicted persons or politicians wanted abroad, only freedom to move without any conditions is what counts.
—Do you think that exiled President Puigdemont could return with legal security to the Spanish state?
—At present and unfortunately, no! However, a peaceful solution must be found. Maybe a careful mediation/arbitration can help, also for all other wanted politicians. It would serve the interests of both Catalonia and Spain and also other former or present EU member states with similar problems (e.g. UK/Scotland, Ireland, Denmark/Greenland) if the EU would assist in the solution of a political process that cannot be resolved by rigid use (or abuse?) of criminal law. Criminal law must remain ultima ratio in a democratic society.
—The recent interim measures approved by the EU’s General Court of Justice to allow Puigdemont regain his immunity as an MEP could bring the objective of his safe return home closer?
—No doubt! And the EU Parliament should also be aware of the political meaning of this decision.
—How important is the Schleswig-Holstein ruling on Puigdemont’s freedom of movement and rights in the future?
—The Schleswig ruling will be taken into account in any future case, at least in Europe.
—Spain thought it would be easy to extradite Puigdemont when he was arrested in Germany. Why were they wrong?
—I do not know why he was arrested exactly in Germany. Already before entering German territory from Denmark he could have been apprehended in Nordic countries, where he previously had announced his appearances. Maybe some bureaucrat in Spain had overlooked that there are independent judges in Germany in general and of course in Schleswig in particular. I need not repeat the judgement of the Higher Regional Court in Schleswig. They simply said that in relation to the main Spanish charges the threshold for similar crimes was not met under German Criminal Law, thus there was no double criminality insofar. In relation to the minor charges, Spain finally again withdrew his request to extradite despite the fact that, based on the automatics of the European Arrest Warrant (EAW), extradition had been declared admissible. Personally, I had preferred that the German Government would have declared from the outset that extradition cannot be granted because Puigdemont is primarily prosecuted because of his political opinion, in accordance with the exception to the principles of the EAW to be found in No. 12 of the EAW-Framework Decision of 2002. Didn’t he simply implement what he was elected for in a democratic election?
—You say you would have liked the German government to have stated from the start that extradition could not be granted because Puigdemont was being persecuted primarily for his political opinion. On what basis is this political persecution based?
—Let us talk about prosecution! As far as double criminality was the test, nothing similar to such a political offense could be identified. On the other hand, in the application of the EAW, the political attitude transpired in all the attempts of the prosecution to present a case by a deluge of ambiguous paper work.
—Were you surprised by the attitude of the Spanish Supreme Court in those proceedings?
—I do not want to go into details of a criminal procedure still open against my client.
—Do you think that Spain has tried to abuse the European arrest warrant system? Was it a landmark ruling and can it be a precedent for changing the way Euro-warrants work?
—Abuse is a strong word. I would rather say that the EAW system is helpful when it comes to ordinary crimes. It is misplaced when it comes to acts that are political in essence. Traditionally, and for good reasons, the prosecutor’s arms should not go beyond borders in predominantly political cases. It is easy to digest that a country in no way wants to become party in a foreign domestic conflict. Already such an impression must be avoided.
—Has the mutual trust between German and Spanish justice been affected by the reaction of the Supreme Court?
—I don’t think so. Hopefully in the concrete case at hand and also related to other EU countries a more careful analysis is prompted.
—Did the Puigdemont case change Germany’s perception of the conflict between Catalonia and Spain?
—The polls were in favour of a non-extradition. Without Puigdemont’s extradition case there would have never been such great political awareness on Catalonia in Germany. I have no reliable answer, but the opinion was split at the end, which is a very good result compared to previous general un-/misinformation cases. The opinion on what should be the minimum quorum for a dissolution was remarkably strong. Talk was about 60-66%.
—You were born in post-war occupied Berlin. How did the environment in which you grew up influence your decision to go into the legal profession?
—Indeed, it did. First, there was the fate of my grandfather. As longstanding member of the SPD – even throughout the Nazi-Regime – he was appointed Mayor of a small town by the British Government immediately after WW II. This town was handed over to the Russians. They wanted him to shake hands with the communists (i.e. unification of both parties). He denied. This was enough to convict him and transfer him to a concentration camp formerly used by nazis and then until 1949 used by Russia. He died in this camp. Secondly, I saw the injustice in the first decades of western Germany, still controlled by those leading people who were already in office during WW II. This created a hunger for justice. I wanted to be part of a system creating a better Germany.
—How did you become a judge at the (UN) International Criminal Tribunal for the former Yugoslavia (ICTY) and what did you learn from that experience?
—The day before Chirstmas 2000 I was nominated by the German Government to stand candidate in the General Assembly of the United Nations in New York. I had served as federal judge at the criminal division of the Federal High Court of Justice. At the same time I had specialized since 1983 in International Criminal Law and Cooperation. In NY I had to present myself before representatives of nearly all embassies accredited at UN in order to obtain the absolute majority of votes in the Assembly. The result was that I became the first German Judge before an international criminal court. After four years I was re-elected for a fresh period of four years, now also acting as judge of the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. I had the unique chance to learn in practice, together with my colleagues from all over the world, how different the approach to criminal law and primarily its proceedings can be. It was kind of permanent mutual learning and mutual acceptance of different legal regimes, however without giving up fundamental principles of the own conviction and of course fundamental human rights.
—Why did you resign in 2007 and what let you down about the functioning of that special tribunal?
—Unfortunately, based on the extremely hard work I was confronted with, I had serious health problems. For me there was no alternative to request my resignation. Once recovered from these health issues, no second chance was given to me to come back to the beloved and challenging international tribunals. Thus I again became defence counsel in international criminal matters, seated in Berlin.
—As a judge at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, do you think they ultimately served justice? Or at least the justice thet the victims deserved?
—There is no doubt about that if only you have a realistic expectation about what can be achieved by a criminal court. It is about a fruitful confrontation in court-room of alleged perpetrators and individual victims. They meet for the first time before independent judges. None of them had ever calculated to end up in the dock or have the chance to tell their own stories about their sufferings or ordeals or those of their relatives. It was also the first time ever that high ranking government and military representatives were shown that criminal law is also applicable to them. Victims and people in the area of our responsibility saw that justice was done as fair as possible, of course with delay and despite some single decisions that even I can’t understand. There is never perfect justice but we showed that even on such high levels justice is possible, if only politicians allow so and do not interfere.
—Are today’s international courts protected from state pressure and interference? Is it possible that Spain will be able to influence the European Court of Human Rights when the cases of the Catalan prisoners and exiles come up?
—I no longer have in-depth insight into the work of today’s international courts. Regrettably the main player in this field, the International Criminal Court (ICC) in The Hague, is dependent on international politics. It is difficult to serve the interests of justice when some of the biggest and/or most important states of the world do not cooperate or are even hostile to an international judiciary worth its name. What about Syria, Myanmar or Yemen to name only a few situations where the international community would expect that an independent criminal court would act? It is a shame that veto powers in the UN Security Council always deny a legally possible transferal of these cases to the ICC.