Teruel Lozano, Germán M.

English

<intR>²Dok

Junqueras’ Immunity: An Example ofJudicial DialogueGermán M. Teruel Lozano 2020-01-19T09:56:57There is no doubt that the criminal prosecution of the "Catalan question" is a stresstest for Spanish Justice. One of the last episodes, now with a European dimension,has been the "euro-immunity" of Junqueras. And, in this respect, the political andjournalistic readings of the judicial decisions issued by the Spanish Supreme Courtand by the Court of Justice of the European Union emphasize the confrontation.However, in my modest opinion, I believe that these decisions are an example ofdialogue between courts, necessary to manage the current pluralism where legalorders are intertwined without clear hierarchies. Neither the Court of Justice in itsruling of December 19, nor the Spanish Supreme Court in its order last January 9,have undermined the other and their decisions have left enough space to avoid adirect collision using solid legal arguments. This is how courts should act, far frompolitical noise.As is well known, the Luxembourg Court concluded in its judgment that "the statusof member of the European Parliament derives from the fact of being elected bysuffrage" and is acquired with the official proclamation of the results of the election.From that moment MEPs would enjoy the immunity provided in art. 9.2 of theProtocol on privileges and immunities of the Union, which refers to their freedomof movement "while they are travelling to and from the place of meeting of theEuropean Parliament". As a result of which the Court of Justice declared that theSpanish Supreme Court should have lifted the pretrial detention of Junqueras soas to allow him to take possession as a MEP. At the same time, in order not tocorner the Supreme Court, the Court of Justice admitted that exceptionally thisrestrictive measure could be maintained on condition that the national court requestthe European Parliament "as soon as possible" to lift immunity.Now, in the resolution mentioned above, the Supreme Court has ruled thatJunqueras must comply with the prison sentence that had been imposed in a finalsentence. Besides, the Supreme Court has declared that request the EuropeanParliament to lift immunity no longer makes sense. A cursory reading of this decisioncould lead to the conclusion – wrong, in my opinion –, that the Supreme Court facesthe Court of Justice or even the European Parliament, and that, given the result, theSupreme Court could have saved the question for a preliminary ruling.However, in my opinion, the Supreme Court loyally has assumed the "new"Luxembourg’s doctrine. First, the Supreme Court has recognized the status of MEPsince the proclamation as elected. Although, since they are not relevant to thecause, the Supreme Court has not entered into other subsequent consequencesof this statement: whether the recognition as a MEP should be understood for thesole purpose of immunities (as could be understood from § 81 of the Luxembourg’sruling), or if, on the contrary, the national provisions that impose certain requirements- 1 -for the full acquisition of the status as MEPs – in the Spanish case, to swear orpromise the Constitution – must be understood as contrary to the law of the Union.The Advocate General had held this last position in his conclusions – § 52 – and canalso rely on § 69 of the Luxembourg’s ruling. A matter of great interest for the casesof Puigdemont and Comín but that remains for the moment open until the GeneralCourt resolves it.The Supreme Court has also come to terms with the "extensive interpretation" thatLuxembourg makes of the immunity recognized in art. 9.2 of the Protocol, warningthat it is an immunity of "autonomous configuration", typical of European law andwhich do not have to correspond to the national concept of immunity. However, doesthe Luxembourg´s ruling imply that the Supreme Court could have not concludedthe main proceedings without first asking European Parliament to lift immunity? TheSupreme Court has understood that no. In its opinion, among the different ways ofconceiving immunity, the one established in paragraph 2 of art. 9 of the Protocol islimited to the "formal prohibition of proceeding with [the] detention [of a MEP] whenthey address the Parliament, are in it or return"; but it does not imply a prohibitionthat judicial proceedings can take place without the authorization of Parliament. It isjust "freedom from arrest".Moreover, MEPs can enjoy broader immunity following paragraph 1 of art. 9 ofthe Protocol. In particular, in this case, Junqueras had enjoyed "in the territory oftheir own State, the immunities accorded to members of their parliament". And,according to Spanish law, the Court does not have to ask Parliament to lift immunitywhen the oral trial had been opened before the person was elected. The trial startedin February 2019 and finished June 12, one day before the proclamation of theelectoral results. So, Junqueras enjoyed immunity according to with Luxembourgrule since his proclamation as an elected member, but, taking into in considerationthe Spanish law, the Spanish Supreme Court was able to give judgment withoutasking the European Parliament because the trial was previous.Restricting the scope of immunity in this cases makes full constitutional sense: It isteleologically impossible that the constitutional end of this prerogative can be givenwhen the condition of Member of the Parliament was acquired after the trial. Wecannon forget that "The purpose of parliamentary immunity is to protect Parliamentand its Members from legal proceedings in relation to activities carried out in theperformance of parliamentary duties and which cannot be separated from thoseduties" (Committee on Legal Affairs. European Parliament, Notice to Members onPrinciples for immunity cases, 0011/2019).This helps to understand that the Supreme Court did not wait for the Luxembourg’sdecision to the preliminary ruling to resolve the main proceedings. The preliminaryruling was focus on an incidental issue about the custody of Junqueras but did notaffect the competence of the Supreme Court to prosecute the facts. Additionally, theSupreme Court has provided other reasons that endorse why it had resolved withoutwaiting for the Luxembourg decision (the trial was already finished, people were incustody waiting for the ruling…).- 2 -Thus, currently, as the Supreme Court has resolved, Junqueras has lost his statusas a MEP in the application of European and national rules on incompatibilities,having been sentenced to imprisonment and a disqualification from holding anypublic office or exercising any public function. So the European Parliament hasresponded correctly by not currently recognizing him as a Member.Two questions remain open: According to the Luxembourg’s ruling, was theSupreme Court obliged to ask the European Parliament to lift immunity if it did notleave Junqueras free to take possession as a MEP? Yes, although the SpanishSupreme Court also explains why it would have been "sterile", since the EuropeanParliament itself did not recognize him as a MEP at that time. Both the EuropeanCommission and the European Parliament defended before the Court of Justice thatJunqueras could not be considered MEP because he had not met the requirementsof national legislation to access the position. When the Court of Justice had changedthis interpretation (something that was not foreseeable at that time), the SpanishSupreme Court has requested to the European Parliament to lift the immunity toPuigdemont and Comín. In addition, the Supreme Court also explains the compellingreasons that led to not releasing Junqueras – among others, the flight risk due to thelack of collaboration of the judicial authorities of other countries with the EuropeanArrest Warrant-. And finally, does the fact that the Supreme Court had not askedthe European Parliament to lift immunity imply the nullity of the main proceedings?No, because, as it has been said, the request for waiver of the immunity wasonly necessary in relation to the pretrial detention, but it did not affect the mainproceedings, which had been carried out with all the guarantees before Junquerashad been elected MEP. At most, Junqueras may now argue that the decision of theSupreme Court adopted in the incidental question of not allowing him to travel to theEuropean Parliament without requesting that his immunity be lifted has violated hisright to the exercise of representative office (art. 23 Spanish Constitution). A matterthat is outside, as I said, of the main process. And it is precisely this last questionthat, in my opinion, justifies that the Supreme Court maintained the question referredfor a preliminary ruling even though it did not have direct effects on the currentsituation of Junqueras.To conclude, I believe that It must be recognized the Supreme Court’s considerationtowards the European legal order, presenting the question for a preliminaryruling and giving a response respectful of the European Union law. I wish othernational courts that have resolved issues related to this case would have been sosensitive to European law. In particular, I wish the German or Belgian courts wouldhave presented a preliminary ruling in relation to the European Arrest Warrantin the Puigdemont’s case. The Luxembourg’s ruling leaves, on the other hand,an important task for the European institutions that will have to advance in thestandardization of European electoral provisions, as López Garrido has pointedout. However, I disagree with Professor van Elsuwege when he has argued that itis "A matter of representative democracy in the European Union". In my opinion,what is at stake is respect for judicial independence, equality before the law, andseparation of powers. Parliamentary immunities cannot be a source of impunity.That is why, no matter how much now in Europe the judicial drift of countries likeHungary or Poland may concern, the interpretation of these prerogatives must be- 3 -restrictive where there is a full democracy, as in Spain. Following the principlesgiven by the Venice Commission itself. The "Catalan question" is not a case of"lawfare", but the response of a Democratic State based in the Rule of Law, throughan independent Judicial Power, to those who abandoned their political legitimacy bybreaking the constitutional order, repeatedly disobeying the Constitutional Court, withmisappropriation of public funds for illegal acts, and mobilizing citizens to preventcompliance of judicial decisions. A response that is also subject to the review of thecorresponding national and supranational guarantee courts, especially the EuropeanCourt of Human Rights. In addition, any commentator on the Catalan question mustknow that there were legal channels to express those political demands within theframework of the Spanish constitutional order. Even, if the Government wants tointervene politically in what had been judicially resolved, there is also a constitutionalway: the pardon – without entering to value its political opportunity or not-; but neverimpunity.- 4 -

Junqueras’ Immunity: An Example of Judicial Dialogue

https://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00007784/Junqueras_Immunity_An_Example_of_Judicial_Dialogue.pdf

Junqueras’ Immunity: An Example of Judicial Dialogue

Abstract

Similar works

Full text

Available Versions

<intR>²Dok