Prosecuting political dissent: Discussing the relevance of the political offence exception in EU extradition law in light of the Catalan independence crisis
| Date | 01 June 2021 |
| Author | Sibel Top |
| Published date | 01 June 2021 |
| DOI | 10.1177/20322844211004762 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2021, Vol. 12(2) 107–127
© The Author(s) 2021
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DOI: 10.1177/20322844211004762
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Prosecuting political dissent:
Discussing the relevance of the
political offence exception in
EU extradition law in light of
the Catalan independence crisis
Sibel Top
Vrije Universiteit Brussel, Belgium
Abstract
Most extradition treaties contain a political offence exception clause, which precludes extradition
from taking place when the concerned crime is considered to be political by the requested state.
This clause has been abolished within the European Union (EU), where mutual trust prevails among
Member States, allegedly rendering such safeguards obsolete. This article, however, seeks to
question the commonly agreed outdatedness of the political offence exception clause within the EU
framework, looking at the context of its abolition, the role Spanish authorities played in it at the time
of its abolition, the way they have handled the Catalan crisis since 2017 and the exportation of the
latter at the EU level. It argues that the situation in which Catalan exiles are today casts doubt over
the obsolescence of safeguards such as the political offence exception and further contends that
human and political rights safeguard mechanisms should not be perceived as hampering mutual trust
and judicial cooperation in criminal matters in the EU.
Keywords
Political offence exception, extradition, European arrest warrant, Catalan crisis, Basque separatism
Introduction
In 2017, the Catalan crisis shook the European Union (EU) and with it the commonly agreed
outdatedness of the political offence exception to extradition.
1
The political offence exception is
Corresponding author:
Sibel Top, Vrije Universiteit Brussel, Pleinlaan 2, Brussel 1050, Belgium.
Email: sibel.top@vub.be
1. Yin and I Wieczorek, ‘What model for extradition between Hong Kong and mainland China? A comparison between the
2019 (withdrawn) amendment to Hong Kong extradition law and the European ArrestWarrant’(2020) 11 New Journal of
European Criminal Law 504, 516.
a clause thatused to be traditionally foundin extradition treaties to prevent,among others, people who
committed crimes thatwere deemed to be political from being extradited to a state where they might
not enjoy a fair trialdue to the nature crime they committed.
2
The general idea behind the clause was
that if a state –as a victim of a crime –requests the extraditionfor prosecution of the person suspected
of havingcommitted the crime, it wouldact as both a judge and a jury andwould therefore be unableto
provide a fairtrial. This logic prevailed for centuries in extraditionlaw until, in the EU, the emergence
of the principle of mutual trust rendered it obsolete among EU Member States. The entire criminal
justice systemof theEU, and, a fortiori,its latest extraditiontool, the European arrest warrant(EAW),
is based on a presumption of trust in the judicialsystem of Member States. This approachclashes with
the one of the political offence exception, itself rooted ina presumption of distrust that the requesting
state will try political offenders fairly. As a result, in a system like the EU where mutual trust reigns
over judicial co-operation, distrust was inevitably destined to disappear, and it did. In recent years,
however, blind trust has been questioned by the Court of Justice of the EU (CJEU), especially in the
field of asylum,but also, even if more timidly,in that of judicial co-operation in criminalmatters as the
CJEU called for caution with regard to fundamental rights in the use of EAWs.
3
This article seeks to question the commonly agreed antiquatedness of the political offence
exception in EU extradition law by confronting the historic abolition of the political offence
exception in the EU to the recent prosecution of Catalan leaders in exile. To that purpose, it first
outlines what the political offence exception is and why it was elaborated in the first place. Secondly,
it analyses the context and reasons leading to its abolition in the EU framework, focusing on the role
Spain played in that development. The article highlights, in this regard, how the need to combat
Basque terrorism pushed Spanish authorities to advocate for the abolition of human itarian safeguard
mechanisms such as the political offence exception clause to extradition, but also the right to asylum
for EU citizens in the EU. It also discusses how the adoption of the 2002 Framework Decisions on
the EAW (FDEAW) and on Combating Terrorism (FDCT) in the aftermath of the 9/11 attacks
furthered the Spanish objectives on counterterrorism. In a third phase, the article turns to the latest
separatist challenge faced by Spain, the Catalan independence crisis. After outlining the reasons for
the illegality of the actions of Catalan separatist leaders, the article explains why the Spanish
prosecutions were decried as being excessively severe and how Spanish authorities were said to
abuse the EAW system to prosecute Catalan leaders. The fourth section looks at how the question of
a potential persecution of Catalan leaders by Spanish authorities landed at the EU level due to
a seemingly unrelated event –the European elections of 2019 –and how the European Parliament
(EP) is now set to adjudicate on the matter. The article concludes that safeguard mechanisms such as
the political offence exception are not outdated, even in the EU context.
Dusting off the political offence exception clause: Origins
and development
In Antiquity and the Middle ages, extradition treaties were originally designed to specifically secure
the extradition of political offenders, but not necessarily of common criminals.
4
The dominant
2. C Vanden Wijngaert, The Political Offence Exception to Extradition. The Delicate Problem of Balancing the Rights of the
Individual and the International Public Order (Kluwer 1980) 3.
3. E Xanthopoulou, ‘Mutual trust and rights in EU criminal law and asylum law: three phases of evolution and the uncharted
territory beyond blind trust’(2018) 55 Common Market Law Review 489, 489–498.
4. I A Shearer, Extradition in International Law (Manchester University Press 1971) 166.
108 New Journal of European Criminal Law 12(2)
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