Just a few years after the founding of the Roman Republic, Consul Publius Valerius Publicola enacted what later became known as the ‘Valerian Law.’ According to this edict, every court decision that may endanger the life of a citizen could be appealed to “the people” for review. Such provocatio ad populum, or “call to the people” (well-analysed by philosopher Montesquieu himself), has been replaced in our modern democracies by the better principle of separation of powers.
Laws, including criminal laws, do ground their legitimacy in the will of the people represented in parliaments. But it is the role of an independent judiciary to apply those laws to individuals in each particular case. And they are obliged to do so, even if the individuals subjected to the law have large popular support that would prefer otherwise.
Unfortunately, modern populist movements - in Washington DC, in Barcelona or elsewhere where they are currently in high rise or in power - are putting in question again this very essential principle of our rule of law, as I read in the Euronews op-ed by Raul Romeva and Alfred Bosch last week. Populist leaders, always claiming sole representation of a supposedly homogeneous ‘people,’ are fast and strong in their reaction against any constraint that may come into conflict with the populist truths they sell. And this applies particularly to courts.
Oriol Junqueras i Vies was put on trial in Spain between February and June 2019, accused (with others) of trying to break Spain’s constitutional order through the illegal use of financial resources and power structures entrusted to them by the State. It was proven and accepted that they had done it in express violation of direct orders from the highest courts of the country. It was a trial of facts, not of Junqueras’ political ideas in support of a new Catalan Republic, an ideal which was and still is freely supported and fought for by fellow party members, and even by the current Catalan Government as such. The facts were acknowledged by the defendants. The trial by seven judges of the Supreme Court was public and fully open to international scrutiny.
Once the trial was over, but before the court had made up its decision, Junqueras - who was still in preventive custody - was elected to the European Parliament. According to the law as applied until that moment, newly-elected MEPs (as any other elected official in the country) would only acquire their full rights after swearing the Spanish Constitution. And this raised a legal question for which there was no immediate answer: had Mr Junqueras suddenly acquired parliamentary immunity allowing him to travel and act as an MEP? Could he be legally kept in (preventive) custody without a previous authorisation from the European Parliament? In order to sort this out, the Supreme Court asked for a preliminary ruling of the Court of Justice of the European Union (CJEU).
On 14 October 2019, before the Luxembourg court had decided on the matter, the Spanish Supreme Court gave its final judgement. Junqueras was declared guilty of “sedition” (as defined in Spanish law) and condemned to 13 years of imprisonment, plus the loss of any honour or elected position he could have. In any case, the application of the law, regulating elections in Spain automatically declared anyone condemned in such terms non-eligible, and therefore, it also imposed the automatic loss (ope legis for those familiar with Latin legal jargon) of any elected position previously obtained.
A few months later, the CJEU, following the recommendation of its Advocate General, ruled that Junqueras had had to be considered an MEP since the moment of its election. Therefore, the court said, he could not be held in preventive detention without the European Parliament’s authorization. President David Sassoli and the European Parliament Services took good note of the new interpretation and its effects, and proclaimed Junqueras a duly-elected MEP.
But the CJEU had decided upon a situation and circumstances that did not exist anymore. And while the court’s new doctrine will certainly imply legal and practical changes across Europe, it could have no effect in the legal effects of the sentencing of Junqueras. That was the decision of the Spanish Supreme Court on 9 January. Immunity protects the European Parliament and its independence: it is not a personal right for anyone.
It is not, of course, a renovated form of provocatio ad populum that would introduce a new pardon of criminal offences already judged through the public vote. As the Supreme Court explains, even if Junqueras had been set free in June to travel to Strasbourg after his election, or if a request for authorisation from the European Parliament had been requested to go ahead with his preventive custody, nothing prevented the Supreme Court to give the sentence against him according to a trial fully developed and concluded before he had any immunity whatsoever.
The court in Madrid is obeying in full what the CJEU decided, on the questions and on the facts that had been put before it; the full effect of that ruling will appear whenever the situation arises again. Here and now, though, that ruling does not change the effect of applicable Spanish criminal and electoral law, as well as of Protocol 7 on the Immunities of the EU, in the very same terms as it would apply to a Spanish national MP (MEPs “shall enjoy … in the territory of their own State, the immunities accorded to members of their parliament”). And that results in the loss of the parliamentary seat validly acquired by Junqueras for a short period of time.
All this has nothing to do with nor prevents differences of opinion on how the Catalan crisis should be dealt with. Or even respectful criticism of the content of the Spanish sentence, of course. But legitimate debate is completely different from destructive propaganda, the gratuitous bashing of the Spanish judiciary or the propagation of conspiracy theories. Let’s discuss everything, including legal or constitutional changes. But in the meantime, we democrats must abide by the law as it is, and respect the independent courts empowered to apply it.
- Dr. Ignasi Guardans is a lawyer and political analyst. He was a Catalan MEP from 2009 to 2014 and was elected to represent Catalonia in the Spanish Parliament between 1996 and 2004.
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