The European Court of Justice Establishes the Immunity of Catalan Separatist Leader but the Spanish Supreme Court Keeps Him in Jail

[Nicolás Zambrana-Tévar is Professor of Law at KIMEP University in Almaty, Kazakhstan, where he specializes in International Law.]

A genuine electoral thriller

The Catalan separatist struggle seems to be, right now, a tennis match where the ball is bouncing back and forth between Madrid, Strasbourg and Brussels. On 2 November 2017, Mr Junqueras, then vice-president of the Catalan autonomous government, was arrested with other separatist leaders and was charged with incitement to violently resist the police, in the latter’s effort to thwart a referendum for independence which the Constitutional Court repeatedly declared illegal. The referendum had taken place on 1 October 2017. Other Catalan officials, notably regional President Puigdemont, fled Spain and sought refuge in various European countries. So far, efforts to have them extradited have failed.

After a long judicial investigation, Junqueras’ trial started on 25 October 2018, while he was still in prison. Elections to the European Parliament were held on 26 May 2019. The trial ended the following 12 June and the official results of the elections were announced on 13 June: Junqueras and Puigdemont had won their seats as MEPs. However, the Spanish Supreme Court refused to temporarily release Junqueras to take the necessary oath of allegiance to the Constitution, arguing that if they did they might also have to allow him to travel to Brussels, with the corresponding risk of him escaping like Puigdemont and others had done before. The European Parliament refused to accredit Puigdemont as MEP for much the same reasons: he had not taken the oath which was required by Spanish law as part of the electoral process. Naturally, if he had come back to Spain to do so he would have been imprisoned.

On 1 July 2019, the Spanish Supreme Court requested a preliminary ruling from the European Court of Justice (ECJ) with respect to the alleged immunity that the defence of Junqueras argued he had as a result of the abovementioned elections to the European Parliament. Then, last 14 October, the Supreme Court issued its much awaited ruling, convicting Junqueras and others of sedition, but not rebellion, in the understanding that they had indeed incited people to violently confront the police – or consciously assumed that people would do so – but that such violence had not been part of their plan to achieve independence, nor had been materially suited to that end.

Meanwhile, general elections were held in Spain on 10 November but it became clear that the Socialists would need the support of Junqueras’ separatist party to have their candidate Pedro Sánchez elected president. Some sort of appeasement gesture was now due. On 19 December, the ECJ issued a ruling where it introduced an innovative doctrine: despite the fact that MEPs must be elected in accordance with the legislation of each EU member state, the ECJ now said that candidates acquire such condition immediately after the official results are announced. Any additional “formalities” imposed by domestic electoral laws – such as taking the oath – are unnecessary. The ECJ claimed, therefore, that Junqueras and Puigdemont enjoyed immunity as MEPs as of 13 June, when the trial was over and Junqueras was still in prison awaiting sentence.

The abovementioned appeasement gesture from the newly elected Spanish Socialist Government came in the form of a petition of the Office of the Solicitor General (Abogacía del Estado), requesting the Supreme Court to release Junqueras so he could travel to Brussels and carry out his functions as MEP, pending the final decision of the Spanish electoral authority (Junta Electoral Central) which, only a few days later, declared that Junqueras was not an MEP because convicted criminals cannot be elected.

What has the ECJ really said?

It might not be an understatement to say that the ECJ’s ruling on Junqueras’ immunity has caused a veritable sense of outrage among part of the Spanish judiciary and academic community. There are even authorized voices who remind that rulings of the ECJ may not be followed by domestic courts when the ECJ’s reading of EU law infringes EU law itself.

It seemed so far undisputed that the status of MEPs – and their corresponding immunity – was acquired when candidates were elected in accordance with the electoral laws of each member state (art. 8 Electoral Act of 1976) and neither the EU Commission, the EU Parliament nor any of the 28 EU member states had submitted to the ECJ any comments in this regard to be considered with respect to the Supreme Court’s request for a preliminary ruling.

Nevertheless, the ECJ noticed that art. 12 of the Electoral Act indicates that “[t]he European Parliament shall verify the credentials of members of the European Parliament. For this purpose it shall take note of the results declared officially by the Member States”. The ECJ’s interpretation of art. 12 seems to be that since the EU Parliament is not asked to verify anything other than the officially declared results of each country’s elections, as a way to make sure that new MEPs have indeed acquired such status, any other requisites or formalities that national electoral legislations may impose are unnecessary (paras. 70 and 71). Since the Spanish electoral authority had proclaimed the official results on 13 June, that was the date on which Junqueras had acquired the status of MEP and the obligation to take the oath to the Constitution was irrelevant. The ECJ adds that the principle of democracy on which the EU is based calls for European institutions, especially the Parliament, to faithfully and fully reflect the free expression of those preferences, as manifested by the citizens of the Union.

The previous reasoning seemed to answer the question regarding the moment from which Junqueras enjoyed immunity as MEP. With respect to the scope of such immunity, the EJC basically discusses art. 9 of the Protocol (No 7) on the Privileges and Immunities of the European Union, of 2012. The ECJ understands that art. 9 provides for three different types of immunities for MEPs. During the period of sessions of the EU Parliament, MEPs will have “in the territory of their own State, the same immunities accorded to members of their own parliament”, i.e. in accordance with the national legislation on parliamentarian immunities. Therefore, an MEP may only be convicted and sent to jail under the same conditions as national MPs. Also during the period of sessions, MEPs enjoy “in the territory of any other EU Member State, immunity from any measure of detention and from legal proceedings”. This, for instance, now prevents Belgian authorities from arresting or extraditing Puigdemont, who has also been elected MEP, unless the EU Parliament grants a waiver.

Finally, the ECJ says that art. 9 provides a third type of immunity “while [MEPs] are travelling to and from the place of meeting of the European Parliament”. The ECJ notes that this provision is found in a different paragraph and makes no reference to the immunity being enjoyed “during the period of sessions” of the EU Parliament, concluding that such immunity is enjoyed before the actual mandate of the candidates commences (para. 80). Therefore, candidates whose election has already been officially announced cannot be prevented from travelling to the place the first session of the Parliament is to be held.

This new doctrine of the ECJ is somehow replicated in another ruling dated 20 December, where the ECJ decided an appeal filed by Puigdemont. The ECJ holds that “it cannot prima facie, be excluded that the act closing the procedure for electing Members of Parliament is that containing the results of the count of the votes cast by the electors, such that the accomplishment of all subsequent formalities required by national law does not form part of that electoral procedure” (para. 74).

Although the ECJ considers that it is for the Spanish Supreme Court to draw all the necessary conclusions from the abovementioned interpretation, it clearly says that, with respect to the question submitted by the Supreme Court, Junqueras should have been released and allowed to travel to Brussels or, alternatively, the Court should have requested a waiver of immunity from the EU Parliament as soon as possible. Most importantly, the ECJ neither directly nor indirectly touches upon the question of the possible changes in the status or immunity of Junqueras, if he was finally convicted. Junqueras was indeed convicted to 13 years in prison and, additionally, barred from holding public office for the same amount of time.

The decision of the Spanish electoral authorities and the Supreme Court

Last 3 January, the Spanish electoral authority decided by a majority vote (but not with unanimity) that Junqueras could not be considered MEP by virtue of art. 6.2 of the Spanish Electoral Law, which indicates that those convicted to a prison sentence after a final judgment cannot be elected.

On 9 January, the Supreme Court issued two interlocutory orders where it decided that the criminal proceedings that led to Junqueras’ conviction were not null and void, as argued by the defence, following the ECJ’s decision, nor was it necessary to ask the EU Parliament for a waiver of immunity. The Supreme Court waited to issue these rulings until after the Spanish electoral authority had made its own decision but especially until after Pedro Sánchez, the new Socialist President, had secured the necessary majority at the Spanish Parliament two days earlier. This is in accordance with the Supreme Court’s habit of not interfering with everyday politics.

The Supreme Court concludes that Junqueras’ situation has changed after its final judgment and that the criminal proceedings had ended last 12 June, one day before the official announcement of the results of the elections to the EU Parliament. Furthermore, the Court understands that the basis and goal of parliamentarian immunity is to protect parliament against any initiatives aimed at preventing its normal functioning. The Court holds that this is not the case where criminal proceedings against an MP have commenced before he is elected (page 16).

The Supreme Court holds that the kind of immunity newly elected MEPs acquire immediately after the announcement of electoral results – in line with the new doctrine of the ECJ – is simply immunity to travel freely to wherever the Parliament holds its first session, not immunity from jurisdiction. This means that the ongoing criminal proceedings against Junqueras need not have been stayed and are obviously not null and void, regardless of the elections. Thinking otherwise would mean that anybody who has been convicted of a serious crime could avoid going to prison once he is elected. It would also mean that voters can change the contents of an act of the judiciary power (pages 18 and 24).

Anyway, the Supreme Court adds, while Junqueras is in Spain he would only enjoy the immunity of any other Spanish MPs, which are protected by art. 71.2 of the Constitution. In accordance with this provision, criminal proceedings cannot commence against them without the authorization of the Spanish Parliament. Art. 71.2 does not apply and MPs do not enjoy such immunity if proceedings have already commenced before the accused is elected. It may be added that art. 384 bis of the Spanish Code on Criminal Procedure establishes that public officials accused of certain serious crimes such as rebellion and provisionally in jail awaiting trial – i.e. the case of Junqueras – are to be suspended in the exercise of their public functions.

The Supreme Court also says that it would have been useless to request a waiver of immunity from the EU Parliament after the elections, as suggested by the ECJ in case the Spanish Court decided to keep Junqueras in prison awaiting sentence, because the practice of the EU Parliament so far was to deny accreditation to anyone who claimed to have been elected but who had not been included in the official lists issued by the national electoral authorities, as was the case of Junqueras (page. 19).

It seems that the only way to reconcile the ECJ’s and the Supreme Court’s rulings is by imagining that Junqueras could have been released from prison so he could go to Brussels and be accredited as MEP and only then, voluntarily or not, to return to Spain to await the judgment and reenter prison. This is, by the way, the solution apparently suggested by the new Spanish Socialist Government through the Office of the Solicitor General, which the Supreme Court harshly criticises.

Conclusions

Last 10 January, the EU Parliament informed that Junqueras’ mandate had expired on 3 January, after the Spanish electoral authorities reached the conclusion that someone convicted cannot be elected and in conformity with the ruling of the Spanish Supreme Court. Concerning Puigdemont, the Supreme Court has indeed requested that the EU Parliament grant a waiver of immunity, which the Parliament usually does, after which a new European Arrest Warrant against him will probably be issued by the Supreme Court. There will probably be more appeals before the ECJ as well as applications before the European Court of Human Rights. The tennis match is far from finished.