Sunday

19th Jan 2020

Opinion

Catalonia MEPs are a judicial, not political, issue

  • Carles Puigdemont is in self-imposed exile in Belgium, meaning he will not return to Spain to be accredited as an MEP for the post he won in May (Photo: parlament.cat)

The regional minister for external action, institutional relations and transparency in the Catalan government, Alfred Bosch, wrote an opinion piece for EUobserver last week in which, while underlining the strong pro-European role of Catalonia, called for international solidarity in the face of a situation in which, according to his own words, "members of parliament elected (Catalans) and their constituents are denied their democratic and political rights for purely political reasons".

This and other claims written in this column call for major clarifications.

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  • Spain's Constitutional Court in Madrid (Photo: Tribunal Constitucional)

It is true; last May the bureaux of the Spanish parliament and of the Senate of the Spanish parliament agreed by a majority to suspend the status of parliamentarians to four persons - Catalan politicians - who are currently in pre-trial detention, following a criminal trial before the Spanish Supreme Court in Spain for serious offences, and pending the ruling of the Supreme Court.

The trial sessions have been broadcast live, which proves that the trial has been conducted with full guarantees and transparency.

These four people won their seats in the general elections of 28 April and were authorised by the court to collect their MPs' minutes and participate in parliament's constituent meeting.

In Bosch's opinion, the subsequent decision to suspend their status of members of parliament was taken solely on political grounds.

However, the truth is that this decision stems from the application of the Spanish procedural law, as indicated by the Supreme Court, based on a reasoned report from the legal service of the Congress.

Bosch then refers to another case: three other candidates who run for the European elections of 26 May (one of them, Oriol Junqueras, was a leader in both the general Spanish elections of 28 April and those to the European Parliament).

All of them face criminal charges for the alleged commission of serious crimes such as rebellion, sedition, embezzlement of public money and disobedience.

It is known that every member state of the EU is responsible for notifying the European parliament of the list of candidates who meet the conditions to be declared formally elected.

The national laws of each country rule all procedural aspects relating to this obligation.

Two of these candidates for the European Parliament, Carles Puigdemont and Toni Comin, currently live outside Spain.

They have been prosecuted for the serious crimes mentioned above, and they have fled justice. It is not possible to judge in absentia in Spain, the justice system being very protective in respect of the rights of the defendants.

In absentia

The Spanish electoral law provides that, in order to be declared elected and collect the act of deputy of the European Parliament, the elected candidate must declare his or her loyalty to the Spanish Constitution, and he or she has to do that in person, in Madrid.

Of course, Puigdemont and Comin are aware that traveling to Spain would mean that they would become accountable to justice, and so they are trying to create a situation of tension at international level to prevent this.

As regards Junqueras, in pre-trial detention in Madrid, he could be authorised to leave prison in order to comply with the above-mentioned procedure; however, this decision pertains exclusively to the competent Spanish judicial authority, i.e. the Supreme Court.

All of them have had, or could have their political rights limited under Spanish law, but not because of their political ideas, as Bosch implies, but because of their allegedly criminal acts, which have led the Spanish justice to open criminal proceedings against them.

The claim for the independence of Catalonia will be defended in the Spanish parliament, as will in the European Parliament, by other MPs, without the slightest problem; by MPs against which no criminal proceedings have been opened and who are not processed or accused of any crime.

Opinion on UN opinion

Bosch finally refers to a recent opinion — a non-binding opinion — issued by the Working Group on Arbitrary Detention of the UN Human Rights Council.

Spain is strongly committed to upholding the United Nations system and, in particular, to all special mechanisms and procedures in the field of the protection of human rights, and is a party to all of them.

However, I must express utter surprise at the striking lack of rigour in many of the conclusions of this document. For example, the document ignores that in Spain, as a basic element of the rule of law, there is division of powers.

Why else would it call on the government to release persons who are in pre-trial detention pending their judgment? Such a decision, like in any democratic country, pertains solely to the judiciary, without any interference by the executive.

In addition, the working group takes for granted facts, which are currently under examination in the Spanish Supreme Court, whose judges are deliberating and drafting their judgment after five months of proceedings.

The working group stands as judge and jury, and in doing so, attacks the independence of the court. It even goes far beyond its mandate by stating that there is no legal basis, not just for the arrest, but also for the trial itself.

Bosch, however, forgets to mention the recent decision of the European Court of Human Rights (ECHR) adopted on 28 May in Strasbourg, which, unlike the opinion of the working group referred to above, is a judicial decision and, as such, legally-binding.

This decision of the ECHR states that, in a rule of law, the law itself is the guarantee of democracy and shapes and defines the way in which it is exercised.

The ECHR upholds the ruling of the Spanish Constitutional Court, which suspended the Catalan Parliament sitting of 9 October 2017, in which it was intended to proclaim the independence of Catalonia.

The Court finds that this suspension was provided for in the law; moreover, the Court states that it was "necessary in a democratic society", as it was adopted with the legitimate aim of maintaining public security and preserving the constitutional order.

I agree with Bosch that Catalonia — like the rest of Spain — says yes to Europe.

This means, first and foremost, that everyone must be subject to the rule of law.

It is simply not admissible to alter constitutional order by means other than legal and democratic channels, as the ECHR itself has rightly stated on 28 May.

The Spanish Constitution, which creates one of the most decentralised states in the world, and grants extensive powers to the autonomous regions that comprise the state, also provides for a specific procedure of reform.

This is the right way forward.

Author bio

Dolores Delgado is the minister of justice of Spain.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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