Op-Ed: “MEP Immunity and the Junqueras Conundrum” by Daniel Sarmiento
In late 2019, the Court of Justice delivered its ruling in the much-anticipated Junqueras case, further to a request for a preliminary reference made by the Spanish Supreme Court. The question at issue was essentially at what moment in time does an MEP start to enjoy the immunities provided in Protocol nº 7. Did Mr Junqueras’s immunity become effective at the time the election results were declared, or after national measures had been complied with – which included, inter alia, taking an oath of office before the electoral commission?
Oriol Junqueras is the leader of Esquerra Republicana de Catalunya (ERC), the leading Catalan pro-independence party, and he was Vice-President of the Catalan regional government prior to the suspension of Catalan autonomy in 2017. He was prosecuted for organising an illegal referendum and the promotion of the events that led to the Catalan parliament’s unilateral declaration of Catalonian independence on 27 October 2017. The Spanish Supreme Court convicted him for embezzlement of public funds in the former act, and for an offence of sedition for the latter act.
But before discussing the Court of Justice’s ruling, it is important to highlight two facts.
First, the criminal proceedings in Spain initiated by the prosecutor’s office against Mr Junqueras (as well as others involved in promoting the referendum and the declaration of independence) started well before the European Parliament’s 2019 elections. Mr Junqueras was placed in provisional detention immediately after the referendum took place in 2017 and was eventually freed on bail. However, after several pro-independence leaders evaded prosecution by fleeing the country, including Carles Puigdemont, former president of the regional government of Catalonia, the court ordered that all the accused parties be readmitted to provisional detention, including Mr Junqueras.
Second, the oral hearing in the criminal proceedings against Mr Junqueras and others had ended before the European elections took place. Only the delivery of the judgment was still pending. Therefore, Mr Junqueras was not an MEP who happened to find himself, as an MEP, involved in a criminal procedure during the course of his parliamentary mandate. The relevant facts, his being charged with those offences, and the oral hearing, all took place prior to his election as an MEP in 2019.
Thus, the request for a preliminary ruling was made by the Supreme Court at a rather late stage in the proceedings. In fact, the reference arose not from the main criminal proceedings against him, but from the appeal against Mr Junqueras’s request to be released from prison in order to comply with requisite formalities under Spanish law, prior to his travelling to Strasbourg to participate in the inaugural session of the European Parliament. Until then, the European Parliament’s position relied on national law in order to determine the precise moment that immunity of an MEP applied. The Court of Justice, in earlier case-law, seemed to side with the European Parliament on this point. At first, the Supreme Court rejected Mr Junqueras’s request to take the oath before the electoral commission on the grounds that acquiring the condition of MEP would be instrumental in allowing him to travel abroad, defeating the very purpose for which he had been readmitted to provisional detention. This circumstance weighed in heavily in the Supreme Court’s decision, particularly after its failure to have Mr Puigdemont and other Catalan leaders in Germany, Belgium and the UK surrendered to Spain through European arrest warrants.
But the Supreme Court had doubts when the decision was challenged on appeal, particularly because of Mr Junqueras’s unique situation, conditioned by the risk of fleeing from justice, but also resulting from the fact that the relevant events and proceedings had taken place well before the election. All these circumstances were considered in the decision of the Supreme Court to make a preliminary reference in July 2019, asking the Court of Justice for some clarity as to when the immunity of an MEP is effective, and requesting further criteria when balancing Mr Junqueras’s immunity with other interests, such as the need to keep the effectiveness of the criminal proceedings intact.
Advocate General Szpunar was very clear in his Opinion: the immunity of an MEP begins at the time the results are declared by the national electoral authorities, not when the elected candidate complies with subsequent formalities under national law. The Court of Justice followed suit. In a sweeping judgment, the Court held that immunity ensures the MEP’s right to travel to the European Parliament, including the inaugural session. At the same time, the Court offered an olive branch to the Supreme Court and stated that an MEP can be put under provisional detention only as long as a request to the European Parliament to waive the immunity has been made “immediately” by the national court pursuant to Article 9(2) of Protocol No 7. Therefore, the judgment sends a balanced message: MEPs enjoy immunity from the moment the election results are made public by the electoral authorities; no further formalities are necessary. However, if the newly elected MEP is to be placed in provisional detention, the criminal court can order that as long as a waiver of the immunity has been requested immediately from the European Parliament.
But something odd happened. On the same day that the hearing at the Court of Justice took place, the Spanish Supreme Court convicted Mr Junqueras, sentencing him to 13 years of prison and prohibiting him from taking up public office during that time, which, under Spanish law, includes his mandate as MEP. The Spanish court issued a letter addressed to the Court of Justice that very day, arguing that a preliminary ruling on the questions previously referred was still necessary. However, it was quite strange to see (and difficult to understand) why the Supreme Court asked the Court of Justice for a ruling so that it could solve the transitional situation of an accused party such as Mr Junqueras, but not actually wait for that Court’s answer. In sentencing Mr Junqueras and including the removal of his position as an MEP, the questions referred to the Court in Luxembourg seemed quite superfluous. What is the point of asking when did Mr Junqueras became an MEP, if he is not an MEP anymore?
The Court of Justice was fully aware of this awkward situation, but it delivered its judgment anyway. However, by ruling on the merits, it was clear that there had been a procedural flaw in the Spanish proceedings. If Mr Junqueras was to remain in provisional detention after becoming an MEP, now we know that the Supreme Court should have requested a waiver of his immunity from the European Parliament to waive his immunity “immediately”. The Supreme Court did not know that at the time, and that is why it made the reference. But in convicting and sentencing Mr Junqueras, the Supreme Court had delivered a ruling on the merits that deprived any request of a waiver of all meaning under Article 9(2) of Protocol No 7. Such waivers are imperative to accuse and convict, but cannot be requested to apply with retroactive effect.
That is why the Junqueras case has now become an unfortunate conundrum that no one seems to know how to solve. The Court of Justice left the final say in this bizarre situation to the Supreme Court itself. Shortly after, the parties in the Spanish proceedings provided as many interpretations as there were parties to the case. Eventually, on 9 January 2020, the Supreme Court delivered its final ruling and granted Mr Junqueras’s request to quash the decision on appeal. However, the Supreme Court highlighted the fact that Mr Junqueras had now been convicted and sentenced, the order, inter alia, including removal from all public offices, which stripped him of his status as an MEP. Following this logic, the Supreme Court ultimately found that Mr Junqueras had no immunity anymore and therefore no request to the European Parliament was actually necessary. The Spanish court clearly stated that, if it had been informed of the new case-law at the time that Mr Junqueras became an MEP, it would have requested the waiver. The Supreme Court also insisted that, even if it had requested the waiver, it would have kept Mr Junqueras in provisional detention anyway (something that the judgment of the Court of Justice apparently allows). Therefore, the facts would have remained unchanged – with or without a request for a waiver.
The judgment has now been acted upon by the European Parliament, which stripped Mr Junqueras of his credentials immediately after being formally informed of the conviction by the Supreme Court.
Overall, the Junqueras case has been a frustrating experience for its protagonist. His case has served as the basis for a new case-law that will shape the status of MEP immunities for years to come, but for the main actor it has become a rather useless strategy. At least for the time being.
But the Junqueras judgment has not been entirely pointless for other pro-independence politicians. Mr Puigdemont and Toni Comín, who both fled prosecution and are currently residing in Belgium, also participated as candidates to the European Parliament in 2019. Spanish law does not preclude those who have fled prosecution in criminal proceedings from being eligible in electoral procedures, and Mr Puigdemont and Mr Comín participated successfully in the last European elections on a pro-independence platform. They did not take the oath before the electoral commission, because to do so they would have had to travel to Spain, facing imminent arrest. The Junqueras judgment has been a blessing for these two candidates, who are now MEPs and have been acknowledged as such by the European Parliament on the grounds of the Junqueras doctrine. European arrest warrants were issued against them prior to the Junqueras judgment, but the Belgian courts, after taking note of the new case-law, suspended enforcement of those arrest warrants. The Spanish Supreme Court has already requested a waiver of immunity to the European Parliament in order for the suspension in Belgian courts to be lifted and the warrants to be enforced. But there is little hope that Belgian courts will follow suit, considering their past reluctance to enforce European arrest warrants from Spanish courts. This reluctance to enforce European arrest warrants has even resulted in a recent ruling against the Kingdom of Belgium from the European Court of Human Rights (see Romeo Castaño v. Belgium).
Overall, and taking some perspective, the Junqueras saga shows that the instrumentalisation in court of political issues tends to produce unexpected as well as frustrating results.
Mr Junqueras is not a political prisoner. In fact, Spanish courts are not what the Catalan independence movement portrays them to be. The Spanish judiciary is actually quite zealous in the protection of its independence, and some Spanish politicians will probably say that courts in Spain are too independent at times. Mariano Rajoy, the former Spanish Prime Minister, was ousted following a major judicial ruling convicting his party, the Partido Popular (PP), due to serious charges of corruption. A politically servile judiciary would hardly dare to act that way.
Mr Junqueras was not convicted for his political ideas. He was the leader of a major Catalan party and Vice-President of a regional government that contributed to enact a Transition Law in 2017 that prepared the ground for a unilateral separation of Catalonia from the Kingdom of Spain, overhauling the judiciary and all executive powers and instating a Catalan Republic on the sole grounds of a dubious referendum. The chaos created in Catalonia in 2017 and the formal declaration of independence that followed is not a sophisticated theatrical joke, it is a serious disruption of the constitutional order of a Member State.
It is for the Spanish political leaders and, eventually, the Spanish people, to decide on the political solution that the Catalan crisis deserves. That solution could eventually include pardoning the convicted Catalan leaders. In fact, the last Spanish general election gave a majority of seats to parties openly willing to deal with the Catalan issue through political dialogue, not only through the action of courts. In the past weeks, and partly as a result of the Junqueras judgment, both sides of the Catalan conflict have been pushed into talking more openly to each other, in a sign that more constructive efforts from both parties could follow. This is what we are witnessing in Spanish politics now.
But there is also a dark side to all this. The Junqueras judgment was received with hostility by those Spaniards who advocate a hawkish approach to the conflict. That includes a new and emboldened Spanish far-right, which had been dormant since the death of Franco and has been awakened by the Catalan crisis. In the last general election the new far-right party, Vox, won the third largest number of seats in Parliament. The first reaction to the Junqueras judgment of the leader of Vox was to invite Spanish courts and citizens to ignore a judgment that “humiliates Spain” and “undermines Spanish sovereignty”. His messages attacking the Court of Justice and the EU were retweeted by thousands of followers on social media and it reverberated throughout the country.
Hopefully, the Junqueras case will only be yet another chapter in the complex Catalan saga, which involves politics, courts and identity claims. A sign of the times we are living in lately. But in the worst case, it could be another spark that lights the match of a Eurosceptic movement in a country like Spain, that seemed immune to such incendiary sentiments. Hard cases do not always make bad law, but they can certainly inflame unwelcome passions and, eventually, may sow the seeds for future troubles.
Daniel Sarmiento is Professor of EU Law at the Universidad Complutense of Madrid and Editor in Chief of EU Law Live.