The Increasing Involvement of European Institutions in the Case against Catalan Separatists

[Nicolás Zambrana-Tévar works for KIMEP University in Kazakhstan.]

The “1-O” trial

Several Catalan separatist leaders are being tried before the Spanish Supreme Court on charges of embezzlement, rebellion and contempt of court in relation to a failed referendum for independence in Catalonia, on October 1, 2017. In the course of four months, the Spanish Supreme Court has listened to 422 witnesses and has watched almost 200 videos of the events, in proceedings that have been streamlined 24/7 on Youtube. Last 12 June the hearings came to an end, pending the final ruling.

However, everybody assumes that the so called “1-O trial” is just going to be the first match and that the return game will be played in Europe. In fact, it is already being played in Europe. For instance, in September 2018, the ECHR rejected the application of a member of the Catalan electoral board who had been fined by the Spanish Constitutional Court for her involvement in the organisation of the referendum. Now, the European Court of Human Rights has delivered a second blow to the separatist cause.

The European Court of Human Rights and Catalan separatism

Three days after the referendum for independence had ended amidst violent clashes with the police, several parliamentary groups of the Catalan Parliament requested a vote on independence. After sixteen Socialist MPs of that same parliament applied to the Spanish Constitutional Court, the latter issued interim measures suspending the vote, which nevertheless took place and the birth of the Catalan Republic was declared by regional President Puigdemont, who then fled abroad, after an arrest warrant was issued by Spanish judicial authorities.

Last 7 May the ECHR held that the abovementioned suspension of the sitting of the Catalan Parliament, where the vote and the declaration of independence had taken place, was justified because such suspension a) was “foreseeable, in accordance with the law”, b) it had a “legitimate goal” and c) it was “necessary in a democratic society”. The suspension was also justified in order to achieve the legitimate goals of “ensuring public security”, “preventing disorder” and “protecting the rights and freedoms of others”.

a) Concerning the ground of foreseeability (paras. 28-31) and acknowledging that restrictions on freedom of association (Article 11 of the European Convention on Human Rights) cannot be taken lightly, the ECHR noted that the Organic Law of the Spanish Constitutional Tribunal authorised the latter court to issue interim measures and that the Constitutional Court had already suspended and subsequently declared unconstitutional the law calling for the referendum and had also suspended and subsequently declared unconstitutional the law which was meant to be the predecessor of the future Catalan constitution, once the referendum gave “the green light” for it. Therefore, the interim measures were just trying to enforce previous rulings. The ECHR also cited an opinion of the Venice Commission of the Council of Europe where the latter recalled that “[w]hen a public official refuses to execute a judgment of the Constitutional Court, he or she violates the principles of the rule of law, the separation of powers and loyal cooperation of state organs. Measures to enforce these judgments are therefore legitimate”.

b) The “legitimate goal” (paras. 32-33) was that of protecting the rights of minority non-separatist MPs within the Catalan Parliament, whose parliamentary rights under the parliament’s internal regulations had been violated in an effort to pass the abovementioned two laws in a rush, prior to the referendum.

c) With respect to the necessity of the Constitutional Court’s measures “in a democratic society” (paras. 34-40), the ECHR found that such interference with the freedom of association of the applicants was proportional in relation to its goal, namely, the enforcement of the Constitutional Court’s own past decisions, the parliamentary rights of minority MPs and the corresponding rights of citizens to participate in public affairs through their representatives.

In line with previous case law of the Spanish Constitutional Court dealing with separatism, the ECHR agreed that campaigning for changes in a state’s constitutional structure are legitimate if carried out through lawful and democratic means and if the proposed changes themselves are compatible with democracy. However, the ECHR does not address the issue of whether a non-negotiated referendum for independence where, additionally, only residents in Catalonia could vote, can be one of those democratic means.

The ECHR understands that although referendums for independence can potentially be protected by Article 3 of Protocol No.1 of the European Convention (i.e. right to free elections), they must guarantee the free expression of the people. The ECHR said that such condition was not met in the case of the Catalan referendum, but only because the Constitutional Court had ordered its suspension.

Therefore, it seems that the ECHR focuses on the fact that non-separatist Catalan MPs were not given a fair chance to oppose the referendum, rather than on any right of the Spanish Constitutional Court to stop a referendum which was clearly against the Spanish Constitution. The ECHR seems to be saying that a plenary session of a regional parliament is like any other kind of private or public meeting and the fact that the meeting’s purpose was to go against the territorial integrity of a state or the fact that most Spanish citizens had been prevented from expressing their will about the disintegration of their country does not play a role in the ECHR’s reasoning.

Interestingly, the ECHR understands that the only applicants who could have standing in this case were physical persons and not the Catalan Parliament itself. This may reflect the fact that the Legal Service department of that Parliament had warned about the illegality of the intended referendum and that roughly half of the seats in the Parliament were at the time occupied by non-separatist MPs, so this could not be an “institutional application”.

The European Parliament and Catalan separatism

An appeal against the forthcoming decision of the Spanish Supreme Court, before the ECHR, is certain. In the meantime, the two most prominent separatist leaders, Carles Puigdemont, now residing in Belgium after his extradition was partially rejected by a German court, and Oriol Junqueras, who is now in prison in Spain awaiting the final decision of the Supreme Court, have been allowed to run in the recent Spanish elections to the EU Parliament and both have been elected. However, there are serious doubts that they can formally take their seat in Strasbourg and enjoy immunity as MEPs.

Article 9 of the Protocol (No 7) on the Privileges and Immunities of the European Union establishes that MEPs shall enjoy “in the territory of their own State, the immunities accorded to members of their parliament”. However, a leaked internal memorandum of the EU Parliament explained that Puigdemont would not enjoy immunity as MEP until the upcoming first session of the EU Parliament next 2 July and after fulfilling the formalities of each EU country’s legislation, i.e. Spanish electoral laws.

The memo added that Spanish authorities could nevertheless allow Puigdemont to meet those formalities, which is what had happened in the recent elections to the Spanish Parliament, where the Supreme Court authorized Junqueras and several other separatists currently detained to leave prison for the sole purposes of fulfilling such formalities. However, the Spanish Parliament subsequently suspended them, so they cannot occupy their seats for the time being.

When Puigdemont went to the EU Parliament last 29 May, requesting the “provisional accreditation” which is sometimes issued to newly elected MEPs, pending the fulfilment of formalities in their home countries, he was rejected. After Puigdemont filed a complaint that he was being discriminated against, with respect to other Spanish MEPs which had already been provisionally accredited, the EU Parliament decided to cancel all provisional accreditations for Spanish MEPs.

The Spanish electoral authorities notified Puigdemont that if he wished to fulfil the requirements to become an MEP, he was to make the corresponding oath to the Constitution in Madrid on 17 June. However, Puigdemont did not come to Madrid because, being technically a fugitive from justice, he would most probably have been arrested, once he set foot in Spain. Instead, he sent his lawyer, who claimed that Puigdemont had sworn before a Belgian notary public.

Even if Puigdemont convinced the European Parliament that the oath in Madrid is unnecessary, in order to formalize his status as MEP, Spanish authorities might still request the EU Parliament to strip him of his immunity as MEP but, as with the German extradition ruling, the EU Parliament might do so with respect to certain charges against him, but not for others.

The case of Junqueras is somewhat different because the Supreme Court has expressly refused to give him permission to be sworn in. Even if the Supreme Court had authorized Junqueras to swear the Constitution, Spanish electoral authorities might have communicated the EU Parliament that Spanish law provides that someone in prison and on trial for rebellion is automatically suspended as a national MP and that the same applies for MEPs.

However, in its decision not to allow Junqueras to come out of prison to swear the Constitution, the Supreme Court seems to fear that if Junqueras had fulfilled the formalities prescribed by Spanish law to become an MEP, he would also have to be authorized to travel to Brussels for the first session of the EU Parliament, next 2 July. If he did so, his return to Spain to face a possible prison sentence would be endangered because the EU Parliament might understand that he enjoys immunity and even if it did not, Junqueras might simply refuse to come back, in which case Spain would again have to request his extradition, knowing that Belgian tribunals had denied the extradition of other Catalan leaders in May, 2018. The Supreme Court added that this limitation of Junqueras’ political rights is only temporal, pending the outcome of the 1-O trial.

Both Junqueras and Puigdemont might still try to file applications before the Spanish Constitutional Court, the ECHR or the Court of Justice of the European Union, arguing that their rights to be an MEP has been unjustly violated.