The European Court of Justice (ECJ) published on Thursday a preliminary ruling on the case of imprisoned Catalan politician Oriel Junqueras Vies who was elected as member of the European Parliament last May but has been prevented by the Spanish authorities to attend the opening of the parliament.
Spanish law requires elected members of the European Parliament to swear or pledge to abide by the Spanish constitution before a central electoral board before assuming their duties. By participating in the organisation of the illegal independence referendum on Catalonia on 1 October 2017, Junqueras Vies and other Catalonian politicians defied the constitution.
The European Parliament itself does not require its members to swear any similar oath to respect European values.
According to the court ruling, the election of members of the European Parliament by direct universal suffrage in a free and secret ballot constitutes an expression of the constitutional principle of representative democracy, the scope of which is defined by EU law itself.
Following that, a person elected to the European Parliament enjoys the immunities attached to that status from the time of the official declaration of the election results.
The immunity includes travels to the sessions of the parliament and entails lifting any measure of provisional detention imposed prior to the declaration of that member’s election and irrespective of whether he has discharged any formalities required by national law.
The case had been referred to the European Court of Justice by the Spanish supreme court after Junqueras had been placed in provisional detention in November 2017 because of his role in the organisation of the referendum on independence in Catalonia.
Without waiting for the ruling of the ECJ, the Spanish supreme court sentenced him last October to 13 years in prison and a 13-year ban from holding public office for the crimes of sedition and misappropriation of public funds.
“Sedition” in the Spanish Criminal Code is defined as “rising up publicly and tumultuously to prevent, by force or outside of legal means, the application of the law or any authority from legitimately carrying its functions.”
Whether he, protestors or riot police were responsible for demonstrations turning violent is contested.
Asked at the press briefing in Brussels (19 December) about the implications of the ECJ ruling, a European Commission spokesperson seemed to play down its importance. “It’s a preliminary ruling on the interpretation of a paragraph in the protocol of immunities and has no bearing on the rule of law in Span. Now it’s up to the Spanish legal system and the European Parliament to follow up on it.”
However, the ECJ notes that while it does not decide the dispute itself, it is for the national court or tribunal to dispose of the case in accordance with the ECJ´s decision. The case has become complicated since the Spanish supreme court has found Junqueras Vies guilty of a crime which in other countries might have been considered as an exercise of political rights.
European Parliament President David Sassoli called on Thursday on “the competent Spanish authorities to align with the ruling.” In the meantime, two other Catalan leaders, former president Carles Puigdemont and his former health minister Toni Comín, who fled to Brussels and also were elected as MEPs, will no longer be barred from entering European Parliament buildings.
“We have always defended the right of our colleague to take up his seat and we welcome that the ECJ now recognises this right,” said Ska Keller, president of the Greens/EFA group in the European Parliament.
“The European Parliament is the body competent to defend Oriol Junqueras’ immunity. We request Mr Sassoli to enforce the ruling of the ECJ by protecting the rights of an elected member of this chamber and ensure the protection of his immunity in order to exercise his mandate.”
The Spanish constitution from 1978 states that it is based on the indissoluble unity of the Spanish nation but territorially the country is organised in self-governing or autonomous communities in regions with a historical regional status.
In an op-ed on The New York Times (20 December), Puigdemont wrote that borders have not been created by some inclusive process but are rather products of wars, colonialism, treaties and royal marriages. “A small country like Catalonia, with a population of 7.5 million, would be better off as an independent state under the umbrella of the EU.”
That would most certainly be vetoed by Spain. Spanish nationalists consider the ECJ ruling an attack against Spain’s independence but the country risks of being brought to the European Court of Human Rights and sanctioned by the European Commission if it would defy the ruling.
The Brussels Times