The General Court of the European Union (EGC) has made an exhaustive interrogation of the European Parliament's legal representative, Norbert Lorenz, on how the chamber protects MEPs and applies their immunity from prosecution, and on the impartiality or not of the rapporteur of the house's Committee on Legal Affairs (JURI, in its French acronym), who gave the green light to lifting the immunity of Catalan MEPs Carles Puigdemont, Toni Comín and Clara Ponsatí. All of this in the second of the two one-day hearings, held this Friday, in Luxembourg, which lasted for more than five hours. The lawyer for the three pro-independence MEPs, Gonzalo Boye, also faced questions as well as responding to the statements from Lorenz after the European chamber's lawyer had alarmed the room when he stated that "Puigdemont probably obtained his status illegally", according to the latest resolutions of the TGUE. In his final address, Boye asked the EGC to "put an end to the political persecution" that the Junts party MEPs are suffering because they "represent a national minority, which deserves respect", and "the objective of the European Arrest Warrant is to put them in preventive detention".
In contrast with this, the European Parliament lawyer stated that the JURI committee "did not commit any illegality" and that "it did not detect any fumus persecutionis" - the Latin expression for 'appearance of persecution' - and for this reason, in March 2021, it allowed the lifting of the MEPs' immunity in response to the request of Spanish judge Pablo Llarena to have them arrested to face trial for the October 1st 2017 referendum events. In a second surprising statement, Lorenz asserted that if Puigdemont had taken all these actions (from pro-independence claims to calling the Catalan referendum) when he was a European deputy, from January 2020, the chamber would have changed its mind. In fact, Puigdemont, Comín and Ponsatí have spoken many times in the European Parliament to denounce the persecutions of the Spanish government, as well as defending the independence of Catalonia. Norbert Lorenz also disclaimed the importance of the fact that both Puigdemont and his lawyer have been spied on with Pegasus software. "This became known later", he said.
The Spanish state solicitor, Andrea Gavela, also asserted that the court should maintain the lifting of the immunity of the three Junts politicians. The decisions by the General Court are expected in two months, and can be appealed to the higher court, the European Court of Justice (ECJ). In fact, it is likely that this court will wait to hear the ECJ's judgment on the preliminary questions raised by judge Llarena on the European Arrest Warrants at a hearing last April, since it is the higher body and will ultimately determine the future of the Catalan politicians in exile.
The protocol on protections of MEPs
In the afternoon session, the president of the tribunal, Anna Marcoulli, asked most of the questions, as she is the one who must draft the resolution. Judge Marcoulli showed that she has a solid knowledge of the case and others related to human rights. "For you, is immunity a fundamental right?", the president of the court asked Boye. The lawyer replied that if immunity is taken away it affects fundamental rights, such as freedom of expression and movement, and that last time, president Puigdemont was arrested in Sardinia. The president replied that he was released and Boye responded: "Yes, because we are good lawyers, but they did not receive the help of the European Parliament." It was a moment of tension in the afternoon, which, despite the decorum maintained by the lawyers, reached moments when the tone rose as the lawyers refuted each other, although never with coarse or discrediting words.
The level of the debate was so technical that the court and the lawyers of the different parties went as far as discussing the different situations foreseen in the Protocol on the Privileges and Immunities of the European Union. Specifically, they were debating the meaning of Article 9 a) and b), which state that "During the sessions of the European Parliament, members shall enjoy: (a) in the territory of their own State, the immunities accorded to members of their Parliament; (b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings." Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament." According to Boye, the three Catalan politicians maintain both types of immunity, while for the Spanish state solicitor, only the second one needs to be analyzed, that being the immunity which Llarena requested to be lifted.
The case of Elena Yoncheva
The lawyer of the European Parliament argued that the immunity that protects the chamber is the activity of the deputies in exercising their political activity. The president of the court pointed out to him that the case of Elena Yoncheva, a Bulgarian MEP and journalist, does not square with what he said. The lawyer justified that in the Bulgarian's case, after becoming an MEP, she was charged by a public prosecutor, after an investigation lasting years and that a video came out in which a politician caused her to be pursued, and for this reason she was defended. Her case is pending resolution in the courts.
For his part, Boye explained that the case of Puigdemont, Comín and Ponsatí is similar and detailed the actions of the investigating judge of the Supreme Court to pursue them. Judge Pablo Llarena issued the first arrest warrant applying to Spanish territory on November 2nd, 2017, then renewed it in 2018 and issued a European warrant, which later ceased to have effect when Germany did not agree to hand over Puigdemont for the crime of rebellion, but only for misuse of pubic funds; and the third time, after the Supreme Court found the Catalan political prisoners guilty of sedition, on October 14th, 2019. He added that Puigdemont and Comín were elected MEPs in June 2019, although they could not enter with guarantees until December 2019, when the ECJ recognized the rights of another Catalan pro-independence MEP, Oriol Junqueras, who was not permitted by the Supreme Court to serve as MEP because it maintained that his conviction was already final. "I repeat a statement from the German Constitutional Court: sometimes MPs must be protected against the Parliament itself", concluded Boye.
Whitewashing an extremist
A second key question in the hearing concerned whether the president of the EU chamber and, in particular, the rapporteur for its Committee for Legal Affairs acted impartially in the case of the request to waive Puigdemont's immunity. The European Parliament lawyer put forward a series of explanations to whitewash the far-right Bulgarian deputy, Angel Dzhambazki, committee rapporteur for the case, and put freedom of expression as a right in which there should be a more permissible attitude with politicians. In this instance, it was the judge Frimodt Nielsen who examined the lawyer Lorenz about the scope of objective impartiality but also the rapporteur's "subjective" impartiality. On this point, Boye stated that they accept that politicians have their ideology, but that the committee rapporteur on the immunity request should have maintained the appearance of impartiality and Dzhambazki did not by attending an event held by Vox, which is conducting a private prosecution in the Supreme Court case.
Finally, at a quarter to four in the afternoon, the president of the court concluded the hearing, which had begun at half past nine in the morning, and announced that the date of the ruling would be announced. But first to appear, probably, will be the European Court of Justice ruling on the preliminary questions of judge Llarena.