Making linear interpretations of things is not always the best way to reach correct conclusions. When this method of interpreting reality is taken into the field of law, the results can be more than surprising, on many occasions disastrous and, above all, far removed from reality. As we approach the final part of the defence of Catalan exile, the analyses should probably be less linear than ever in order to best understand how this defence strategy has been structured and how it will end up producing the results long awaited by so many and so feared by the usual groups.
The maxim was to avoid putting all the eggs in one basket, to go step by step and obtain at each moment a piece of the whole that was needed to redirect a problem that should never have been taken into the judicial sphere. No one ever said it would be quick or painless, just that it was the best path to follow and was put together from an image that consisted of multiple pieces, like assembling a jigsaw puzzle.
Exactly five years ago - on November 5th, 2017 - what seemed impossible became a reality and that was the first piece of the puzzle: in Spain, members of the president Puigdemont's government were imprisoned, while in Belgium, for the same events, the president and the rest of his government were released with few precautionary measures. This was, without a doubt, the first bucket of cold water received by those who believed that Belgium would deliver the pro-independence leaders to them in less than 30 days and that what was treated as a coup in the Spanish state would also be understood as such beyond Spanish borders.
Months later, the Spanish nationalist euphoria overflowed thanks to an orchestrated arrest in Germany, where we were aware, for the first time, of the potential of Pegasus spyware. Many thought that Germany would put "the fugitives" on the road to return.
Once again, the reality was stubborn and what was achieved in Germany is what is still being debated in Spain: demonstrating that the events of 1st October 2017, in a democracy, were not only not criminal, but also that criminal offences such as that of sedition, in authentically democratic states, had been repealed for decades. From a legal and democratic perspective, so much can be learned and accepted from such a process, but those who could have done so, did not. This was a second piece of the puzzle.
Almost a year later, the discussion focused on whether it was possible to become an MEP without swearing on the Spanish Constitution. It took us more than 6 months to show that it could be done and that opened a new phase in the defense of the exiles. A phase that some continue without wanting to understand or assume and that is on its way to its final outcome. Unsurprisingly, this was the next piece of the puzzle.
Meanwhile, it was also possible to demonstrate that a European arrest warrant is not an automatic mechanism for transferring detainees from one country to another, within the European Union, but rather a judicial procedure subject to a series of rules that allow, in some cases, to deny such handovers. A new piece had already been put in place.
While in Spain, the members of the government of president Puigdemont were imprisoned, in Belgium, for the same events, the president and the rest of his government were released with few precautionary measures
The vestments of a nineteenth-century understanding of the law have almost no thread left, and step by step, the vision that we have always set out is making its way: above the states' right to punish is the affected individuals' right to be a person, that is to say, their fundamental rights. And these also act as a limit to the urge to repress of those who believe that the law is a chisel to sculpt society, giving it the shape that those who hold power most desire, instead of being a mere instrument of conflict resolution.
The response to these approaches has taken the form of preliminary questions - foreseen as a closing clause of the defence strategy of the exiles - which will end up defining how to interpret the Union's rules on rights and freedoms in relation to one of the supreme values of the European system: free movement.
We will see if the vision of the advocate general De la Tour triumphs, based on the fact that the fundamental rights that can be used in the European Union are collective heritage - which would only be a cause for refusing a handover if the systemic or generalized failure is proven - or if, on the contrary, the vision of fundamental rights prevails as the individual patrimony of each one of the citizens, with regard to which, if one proves the risk of suffering violations, an arrest and handover can be prevented.
This discussion is not framed in personal terms, but in terms of a profound dialogue between courts that must be fine-tuned in order to build a valid interpretation, not only for this case, but also to be applicable to any later suppositions that may arise in any of the 27 states of the Union. De la Tour asks for a response for the Kingdom of Spain and we hope for one which is tailored to the whole of Europe; it is this and none other which is the difference in the respective positions.
But not everything is about handovers, but rather, it also affects the possibility of pursuing, arresting, imprisoning and prosecuting people who have immunity, such as MEPs and, while some invent visions and decisions that do not exist, others base ourselves on what is there already, at least since July 6th, when the General Court of the European Union (EGC) determined, in two specific points, that:
"90. - In view of the foregoing, in the present case, it must be held that the applicants, whose names were listed in the declaration of 13 June 2019, acquired the status of Members of the European Parliament from that date and, therefore, by reason of that fact alone, enjoyed the immunity referred to in the second paragraph of Article 9 of Protocol No 7. Moreover, the parties now agree on that point.
91. - Furthermore, it follows from the case-law cited in paragraphs 86 and 87 above that the applicants’ acquisition of the status of Members of the European Parliament and, consequently, of the immunity referred to in the related second paragraph of Article 9 of Protocol No 7 follows exclusively from the declaration of 13 June 2019 and, therefore, could not be called into question either by the former President of the Parliament or by the Parliament itself."
In short, three years after an unfounded and sterile discussion about the need to swear on a specific constitution, the General Court established that the status of MEP and its consequent immunity are acquired upon the proclamation of election results without any other requirement being necessary and, on this issue, both we and the European Parliament and the Kingdom of Spain agree because “the parties now agree on that point.” This has been one of the key pieces in the construction of a puzzle that many still do not want to see.
The General Court established that the status of MEP and its consequent immunity are acquired upon the proclamation of election results without any other requirement being necessary
If this is so, which it is, then it is evident that the European Parliament should have defended the immunity of its members against any attack that was not in accordance with the law and passed, previously, through the request for the waiver of parliamentary immunity. This piece of the puzzle is what is going to be discussed on November 24th in Luxembourg.
But, in addition, in order to proceed against any MEP, whether they are called Puigdemont, Comín, Ponsatí or whatever their name is, a regulated process must be followed, with very strict rules and protected, among other things, by the principle of impartiality and subject to respect for the rights and freedoms recognized for all citizens in the Charter of Fundamental Rights of the European Union.
If these requirements are not met in the processing of that specific request, whichever the MEP it is aimed at, it should not be considered valid and, therefore, no action can be taken against a person who enjoys this type of immunity and can, therefore, circulate freely throughout the territory of the Union - Spain included - without being harassed or detained, much less subjected to any judicial process. This other piece of the puzzle is also going to be discussed on November 24th in Luxembourg.
Little by little, the various pieces of a complex puzzle have been put in place to allow a political conflict to be redirected to a framework from which it should never have emerged - that of politics - and this, and nothing else, is what will really allow politics to be dejudicialized, but without resignations or surrenders and without control or submission.
Now it is time to focus on what is to come; there are only four weeks left to prepare two complex oral hearings in which we must be able to show that, with the pieces we have, the photo of the puzzle is that of a more democratic Europe, in which we all have a place on an equal plane, with rights and freedoms and, furthermore, in which every national minority is recognized as having its most fundamental right: that of being able to decide its own future.