The European Commission has ruled that Spain couldn’t request the extradition of Josep Miquel Arenas (aka Valtònyc), the exiled Majorcan rap signer who was given a jail sentence by a Spanish court for his song lyrics, as the events that led to the artist’s conviction predate the criminal code invoked by the Spanish authorities. During the pre-trial hearing at the Court of Justice of the European Union (CJEU), the European Commission concurred with the arguments laid out by the singer’s legal counsel, who argued that Spain failed to properly request the European arrest warrant against Valtònyc. In contrast, Spain, Belgium and the Belgian prosecutor claimed at the hearing that the criminal code that should apply in this case is the one that was in force when the warrant was issued. The Advocate General of the CJEU will publish their conclusions on the case on November 26. Spain filed for the immediate handover of the rap artist because he had been found guilty of glorifying terrorism, but European law only allows a fast-track extradition when the crime in question carries a prison sentence of at least three years.
Valtònyc was given a two-year prison sentence when he was found guilty of a count of glorification of terrorism according to the 2012 Spanish law, but when the warrant was issued the maximum penalty for that crime in Spain was three years as the criminal code was reformed in 2015.
In Luxembourg the Belgian judges asked if the criminal law can be applied retroactively in order to fast-track a European arrest warrant, as Spain had done. Specifically, they enquired as to whether the applicable law was the criminal code in force “at the time when the warrant was issued”.
The EC’s arguments
The European Commission’s lawyer, Rudi Troosters, argued that “only the specific law that is applicable” to the events is “relevant in the case of a European arrest warrant” and he denied that invoking the law that was in force when the warrant was issued may “increase the likelihood” of a convicted felon being handed over. In this case the European Commission raised the issue of “decriminalisation”, if the circumstances were the opposite; that is, that certain member states might lower the penalties in their criminal code to avoid a fast-track extradition for certain offences.
Furthermore, Troosters stated that European legislation on arrest warrants does not specify that the applicable law is the criminal code in force at the time of issuing the warrant. He argued that “the law would have to specifically state that in a clear manner”.
“Exposing Spain’s trickery is advantageous to us”
Valtònyc said he was feeling “optimistic” following Monday’s pre-trial hearing at the Court of Justice of the European Union where the European Commission (EC) argued that Spain was wrong when it request the extradition of the artist by invoking legislation passed ex post facto. The rap singer stated that “exposing Spain’s trickery is advantageous to us” and he argued that “you cannot be convicted for something that wasn’t a crime at the time it happened”. After the hearing in Luxembourg, Valtònyc said he was feeling “calm” because the judgement can be appealed, but he added that there will be “grounds” for turning down the fast-track warrant, if they can prove that Spain did not follow the proper procedure when it was filed.
In addition, Valtònyc said he felt vindicated in his decision to flee to Belgium in order to “wage a political struggle” and he noted that if a court of justice rules that he should go to jail, he will abide by the decision. However, he warned that —regardless of the ruling— people should “organise” and “rally” to prevent the “normalisation” of Spain’s “regression” on the subject of basic rights.
Valtònyc’s lawyer, Simon Bekaert, stated that it is “very important” that the EC has argued that the law to be invoked in a European warrant must be in force at the time. “There’s a good feeling after today’s hearing”, said the lawyer after the session held on Monday at the CJEU in Luxembourg. Bekaert believes that “the extradition will be turned down” if there is a favourable ruling from the CJEU, even though the Belgian court still has another possible way to consider the warrant, besides the fast track.
Lawyer Gonzalo Boye also welcomed the fact that the CJEU’s Advocate General has questioned that argument put forward during the hearing by the Spanish representative about the need to refer to the criminal code in force at the time when a European arrest warrant is issued. He remarked that “Spain’s position had already been weakened”.
Bekaert added that “this matter is not merely about Valtònyc, Spain or Belgium: it’s about whether a member state can change its criminal code to facilitate an extradition”.