The political offence exception clause to extradition in Europe: An analysis of its evolution and application with a special focus on the Catalan independence crisis

The political offence exception to extradition is a clause that is a legacy from the French Revolution and
liberation movements that took place around Europe at the end of the 18th and beginning of the 19th
century. The clause seeks to protect people who commit political offences from being extradited. The
idea behind this protection is that it would be inconceivable to surrender people who fight for liberal
and democratic values to a country where they could be persecuted for it. The clause found its place in
most bilateral extradition treaties and became a widely accepted principle of extradition law. When the
Council of Europe, the first multilateral arena of cooperation on a pan-European level, adopted tools of
cooperation on extradition, the clause founds its place there as well. However, when Council of Europe
contracting parties started adopting anti-terrorism tools, the scope of the protection from extradition
granted to political offenders sharply diminished and kept being reduced with the successive adoption
of counterterrorism conventions. This tendency continued at the EU level, where the protection of
political offenders was eventually abolished. The rationale advanced in both arenas for this development
was that a climate of confidence reigned among the likeminded contracting parties of the Council of
Europe and member states of the European Union who were all supposed to respect high standards of
human rights protection, democracy and rule of law. Because terrorism attacked those values that are
common to Council of Europe and European Union members, it was considered necessary to diminish
or abolish the political offence exception clause that terrorists could use to seek refuge in ally countries.
This thesis seeks to determine the extent to which the legal relevance and actual application of the
political offence exception has changed in Europe. Doing so, it questions the narrative created around
the diminution of the protection granted to political offenders. Using Bourdieu’s theory on state creation
that highlights that state creation is a continuous and never-ending process, this work asserts that the
growing number of counterterrorism tools did not so much serve the purpose of countering terrorism,
as it helped to define the state and create an imaginary community of states that needed protection from
terrorism. By defining terrorism as what attacks European values, the Council of Europe and European
Union members defined the states by their dialectical relation to terrorism. Indeed, every time terrorism
is presented as attacking the values of democracy, human rights, and so on, a structural positioning game
is created whereby states are presented as representing those values. This thesis therefore argues that
legislation on terrorism participated to defining and presenting the states as defenders of the values
attacked by terrorism. As such, the legal changes observed in the protection of political offenders were
very relevant in light of what they actually sought to achieve, i.e. a continued state creation process.
At the European Union level, one particular member state played a crucial role in the abolition of the
political offence exception, Spain. Frustrated by years of lack of cooperation from its European
counterparts that refused to extradite Basque terrorists in exile, Spanish authorities were determined to
get all the tools they needed at European level to put an end to that situation. They thus waged a fierce
campaign at the European Union level to abolish the right to asylum in European Union for European
Union nationals, abolish the political offence exception, and push for enhanced tools of cooperation on
extradition, which led to the adoption of the European arrest warrant, a fast-track and quasi-automatic
extradition scheme. When the Catalan independence crisis broke out in 2017 and that some of its leaders
fled abroad, Spanish authorities were thus well-equipped to get all Catalan exiles swiftly surrendered.
In this respect, the Catalan independence crisis provided a quasi-tailor-made case to study the actual
application of the political offence exception clause in a context of state creation. Catalans tried to create
a new state and sought, to that end, to deconstruct the Spanish legitimacy in European spheres. In
reaction to the Catalan independence referendum that blatantly contravened the Spanish legal
framework and threatened Spain’s own creation process, Spanish authorities took the path of
judicialising the crisis in what was perceived as a rather severe response to a referendum that, albeit
illegal, remained entirely peaceful. The fierce Spanish reaction to the independence crisis created a clear
unease among their European counterparts who were reluctant to surrender Catalan exiles. Swiss
authorities quickly invoked the political offence exception clause in reaction to rumours of extradition
requests, and European Union member states who received European arrest warrants systematically
refused to execute them for the political charges of the case. As a result, this thesis argues that, although
the reduction and abolition of the political offence exception clause was, from a sociological point of
view, legally relevant as part of the states’ creation processes; EU member states applied a form of ghost
political offence exception to the case of Catalan leaders to prevent their extradition.