José Rico – Barcelona – Jueves, 19/12/2019 – 23:39
The court rulings on Oriol Junqueras and Quim Torra give another hit to the Catalan and Spanish political board, but their effects are still quite uncertain, waiting to resolve several unknowns. These are some doubts which clarify and others that do not the rulings of the Court of Justice of the European Union (CJEU) and the High Court of Justice of Catalonia.
Read the pdf Rule of 19th December C-502/19
Spanish – Legal framework of the Union Law: Protocol on privileges and immunities of the Union
French – Le cadre juridique du droit de l’Union: Le protocole sur les privilèges et immunités de l’Union
- Should Oriol Junqueras have occupied the seat?
According to the Court of Justice of the EU, the ERC leader should have been recognised as a Member of the European Parliament (MEP) since the results of the European elections (on June 13) and therefore enjoy immunity. The judgment states that a candidate acquires the membership of the European Parliament, since the election results are proclaimed, even if they are in provisional detention for serious offences, or the formalities required by national legislation to take the seat have not been completed, or not participated in the constitutive session of the Eurochamber.
- What was the Supreme Court wrong about?
The Community verdict is a strong tug-of-war for the Supreme Court, which raised doubts on the EU’s highest judicial body. According to the European ruling, Junqueras was immune from June 13 and the Supreme Court had to have let him out of prison to pick up the Act in Strasbourg, but if the Court considered that there was a flight risk and that the former Vice-President of the Govern should continue in prison, the Court’s obligation was to immediately request a plea (a kind of judicial authorization) to the Eurochamber.
- Now has the leader of Esquerra immunity?
Nothing says the CJEU about the conviction on Oriol Junqueras (13 years in prison and disqualification for sedition and embezzlement), since the European judgment is limited to a permit to leave from prison to pick up the Act of MEP, and not to the main cause. However, the Luxembourg’s Court considers that it is the Supreme Court that now has to “appreciate the effects attached to the immunities enjoyed by Junqueras in other possible proceedings”. In other words, the ball is on the roof of the courtroom that sentenced the President of ERC.
- Could Oriol Junqueras be released?
The Supreme must decide how he corrects the mistake he made and whether he now requests the plea. Junqueras calls for the nullity of the O-1 sentence and his release, but for the prosecution the effects of the judgment are null because he is sentenced firmly and disabled, so he cannot access to the Act. The Solicitor General of the State, which examines the case, supported Junqueras’ holding the seat, a thesis now endorsed by the CJEU. Lawyers quoted by Efe see it almost impossible to release, but believe that the leader of Esquerra could be allowed to pick up his Act.
- Could the Republican leader be removed from the seat?
The President of the European Parliament, David Sassoli, has urged the Supreme Court to comply with what the CJEU asks of it and has ordered to the Legal Services of the European Parliament to assess “as soon as possible” the implementation of the effects of the resolution “on the composition of the resolution” of the Parliament,” both by Junqueras and Carles Puigdemont and Toni Comín. If the Supreme requests the plea, it would trigger the procedures to remove of the MEP’s immunity, a decision that would eventually be in the hands of the Plenary of the Eurochamber.
- Carles Puigdemont and Toni Comín are also immune?
Although the judgment is confined to the case of Junqueras, with the ruling in the hand Carles Puigdemont and Toni Comín have immunity from the moment they were proclaimed MEPs, so they cannot be detained and to act against them would need the plea. The CJEU advocates a “broad and unrestrictive” interpretation of the inviolability regime of Members. Judge Pablo Llarena himself, who prosecuted Puigdemont and Comín and dictated Euro-orders, admits that the ruling may have “the same incidence” on the fled.
- Is the ‘expresident’ free to return to Spain?
Backed by immunity as a proclaimed MEP, Puigdemont could return to Spain to comply with the procedures required to access to the Act. It is true that the ‘ex-president’ would take a risk, but Spain also if the Spanish Justice decide to stop him without the pleading. But asserting by the CJEU that the immunity begins since the election results were declared, it would not be necessary for him to return to Spain to comply with national formalities. The Euro-camera should provide him the credentials, and then the Supreme Court could ask for the plea.
- What is the judicial status is the JxCat leader?
The EU General court must decide on a case brought by Carles Puigdemont and Toni Comín against the Eurochamber for preventing them from taking possession of their seats, while the CJEU must decide on an appeal relating to the precautionary measures they requested for in order to be able to provisionally pick up the Act until that appeal is clarified. Furthermore, the Belgian justice must decide on the extradition of both and Lluís Puig, has postponed the hearing of the case until February 3, waiting for a ruling of the European justice on their immunity.
- Can Puigdemont run for elections?
The Puigdemont’s undisputed leadership in JxCat could result, once again, to be the leader of the candidacy for a Catalan Parlament elections. His eventual immunity, however, would not resolve the obstacle that already prevented him from being elected ‘president’ in 2018: the Constitutional Court’s veto to a remote investiture. Puigdemont could run for new Catalan elections, although if he decided to pick up the Act of deputy in the Catalan Parliament, he would have to resign his seat in the Eurochamber, therefore he would lose his immunity.
- When should Torra leave his post of “President”?
Yesterday’s conviction does not imply the immediate cessation of the ‘president’ because it is not firm, but it prevents him from being an election candidate. The Supreme Court takes an average of nine months to resolve appeals against penalties for disobedience. If it is ratified, within 10 days the President of the Parlament must nominate a candidate for the investiture and, if not fruitful, a two-month deadline to elect ‘president’ is activated, or elections will be called after 54 days. In all that time, the Vice-President Pere Aragones (ERC) would assume the functions of ‘president’.