Political Leader in France, Terrorist in Spain

Written by Jennifer Castello Tuesday, 04 December 2012
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Aurore Martin is a French citizen from the Basque Country, a member of a political party called Batasuna. She was arrested on 1 November 2012 in Mauleon, South of France, under a European arrest warrant issued by Spain where she is being charged for her “participation with a terrorist organisation”.

 

This extradition reveals the flawed mechanisms of the European Arrest Warrant in contradiction with French legal heritage as well as the political nature of terrorism allegations.

 Aurore Martin is a French citizen from the Basque Country, a member of a political party called Batasuna. She was arrested on 1 November 2012 in Mauleon, South of France, under a European arrest warrant issued by Spain where she is being charged for her “participation with a terrorist organisation”.

This extradition reveals the flawed mechanisms of the European Arrest Warrant in contradiction with French legal heritage as well as the political nature of terrorism allegations.  

 

 

 

France, unlike the United Kingdom, does not extradite its nationals. The Bill adopted on 10 March 1927 is crystallised this point. Its Article 5 states: "Extradition shall not be granted when the person subject of the application is a French citizen or protected." Certainly a notable exception to this deeply rooted principle was made a few years ago with the adoption of the European Arrest Warrant. Since then, a French national, subject to such a warrant, can actually be sent to any requesting EU member state. And, unlike the ordinary regime of extradition, the French courts will not engage a purely formal examination of the legality of the extradition request but will only apply the conditions already set up by the Framework decision with no intervention of the executive power.

The European arrest warrant has been established by a Framework Decision on 13 June 2002 which entered into force on 7 August 2002. This mechanism was envisaged after the events of 9/11 through a proposal from the Commission, quickly followed by a political agreement in December 2001, highly symbolic given the context. In France, the implementation of the European Arrest Warrant has necessitated a review of the Constitutional Council, admitting the modifications engendered as generally consistent with the Constitution. However a constitutional reform has had to be adopted in order to apply the Framework fully and therefore created the new article 695-11 of the French code of criminal proceedings.

Another contradiction with French law was introduced by the European arrest warrant as it applies for facts punishable in the requesting Member State by a custodial sentence of at least three years, the following offences, among others, may give rise to surrender without verification of the double criminality of the act in cases of terrorism, trafficking in human beings, corruption, participation in a criminal organisation and some others. In simple terms, it means that a suspect can now be extradited from one country to stand trial for breaking a second country's laws even if a similar law does not exist in the extraditing country.

Hence, Aurore Martin faces in Spain 12 years in prison for her alleged “participation with a terrorist group”, based solely on two political meetings she attended and on opinion articles she wrote in the Basque journal “Gara”.  However, her activities were entirely legal in France and her party “Batasuna” was even running for local elections. Her activities were only regarded as political activism falling under the right for freedom of expression and opinion. What is considered in France as the exercise of a fundamental right is seen in Spain as support for terrorism.  

She was therefore rendered to the Guardia Civil at the border with Spain five hours after her arrest and has been detained in Madrid since then. By doing so, France also seems to have breached its own legislation that prevents extradition for political reasons. The Article 695-22 of the Code of Criminal Proceedings clearly states that the execution of an EAW must be refused if it has been issued for the purpose of prosecuting a person because of its political opinion or it may be undermined his position for this reason. It clearly seems to be the case for Aurore Martin, since what is alleged by the Spanish justice is unquestionably a crime of opinion and certainly not an act of violence.

In addition, this extradition is even more inappropriate since a peace process is underway in Spain with ETA.

The manner EU governments have designed the EAW has proved totally biased, since the invention of this new enforcement tool was not accompanied by what was a necessary corollary: the constitution of a genuine European judicial regime, implying a common corpus juris (body of law) of offenses.

The arrest warrant against Aurore Martin was issued on 13 October 2010 and for two years France has never tried to arrest her except one time when she ended up being protected by militants so the police decided not to go through with the arrest. She has been living ever since openly, not hiding, easily located in the French Basque country. The timing is therefore interesting as she was arrested just three weeks after the 22nd summit between France and Spain held on 10 October 2012, devoted to the fight against separatists in the Basque Country. She was arrested because of a random police check while she was driving, as argued later on by the Minister of Interior. It looks more like a deliberate nest operation to arrest her rather than a matter of coincidence,. Indeed police checks were hugely deployed in the region with no apparent reasons at all. The arrest also just followed an interview Manuel Valls, ministry of interior, gave to the Spanish daily El Pais, in which he stated that France will pursue "with firmness" his fight against ETA.

The case of Aurore Martin shows that the EAW bill can become an instrument of criminalization of political activism and opponents ideas. In the name of austerity and security policies conducted in Europe, we can feel the drifts of states practices towards becoming authoritarian States. It means that one could be arrested in his own country for something totally legal that could fall under an illegal act in another European State.

 

 

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