Carles Puigdemont, Toni Comín and Clara Ponsatí have announced, this Wednesday, that although the General Court of the European Union (EGC) has not accepted their appeals over the violation of their rights as MEPs, and has left them without the protection of their immunity, they will continue their political activity in the European Parliament. With this resolution, is there a risk that they will be arrested in Brussels or in another European country?
Travel, a danger
Former Catalan president Carles Puigdemont affirms that on July 10th he will be travelling from Brussels to Strasbourg to attend the next plenary session of the European Parliament, this one being held at the parliament's alternate location. European parliamentarians are covered by three types of immunity: national, international, and that of travel - enabling them to attend plenary sessions of the chamber. In this current legal case, opened in 2017, the Spanish Supreme Court judge Pablo Llarena asserts that the three Catalan politicians do not have immunity because they were prosecuted before they became MEPs. He has respected that the Junts party representatives have freedom of movement to attend the European Parliament, but at the same time, if they tread on Spanish soil, they will be arrested in order to try them as authors of the Catalan independence process. Now, however, the EGC, in the judgment released this Wednesday, has specified that the immunity is determined by the EU chamber and that what is protected is the functioning of the chamber and of the European Union, without this being inherently connected to private rights. That is why the defence team of the Catalan politicians wants to analyze more closely if they are no longer guaranteed freedom of movement to go to the chamber, and whether they would be well advised not to attend the next plenary session in the French city beside the German border, where Puigdemont was at great risk in 2019.
An arrest warrant
First of all, the Supreme Court investigating judge has to issue new European Arrest Warrants (EAWs) for Puigdemont and Comín, who, since last January, have been prosecuted for the crime of 'aggravated' misuse of public funds. The issue of a warrant is expected to be imminent, once the Supreme Court prosecutors give their view on the matter. In the case of former Catalan minister Clara Ponsatí, a European arrest cannot be requested because the crime for which she has been prosecuted is disobedience, not an offence punishable by prison terms in Spain, and, therefore, she cannot be extradited. However, in Spain, the arrest warrant for Ponsatí is, indeed, activated.
Also relevant in this matter is the fact the higher European instance, the Court of Justice (ECJ) agreed that judge Llarena was, partially, correct in asserting in his preliminary questions, that a member state cannot refuse to hand over a person if there is no evidence of a systemic problem in the country that requests it or there is no violation of the rights of an Objectively Identifiable Group of People (GOIP). This ECJ resolution was given to clarify the issue of the handover to Spain of former minister Lluís Puig for the crime of misuse of funds, which Belgium had rejected. However, Llarena could have put in a new claim for Puig's extradition since last January, and he has not yet done so.
Twice arrested in Europe
The lead lawyer for the exiled Catalan politicians, Gonzalo Boye, recalled today that he has never won a hearing at the General Court, and that they have been through difficult times, including the arrest of president Puigdemont in Germany, in March 2018, which lasted 12 days before he was freed after the German authorities decided they could only approve his handover for the crime of misuse of public funds, and judge Llarena rejected the extradition on that basis because he was also seeking to try Puigdemont, like the pro-independence leaders, for the crimes of rebellion and sedition. Puigdemont was also arrested in Alguer, on the island of Sardinia, in September 2021, and was then released due to the European court ruling that stated that the Catalan MEPs had interim protection. That interim measure was imposed precisely to await the clarification of the two appeals which have been resolved - in the court of first instance, at least - this Wednesday.
New request to the European Parliament?
The exiled Catalans' lawyer maintains that judge Llarena has to make a new request to the European Parliament in order to ask for the immunity of Puigdemont, Comín and Ponsatí to be lifted, since the Supreme Court has changed the crimes that it attributes to the pro-independence leaders since Spain wiped the sedition law from its books.
However, this Wednesday's ruling from the General Court does not say anything about this intermediate step. What's more, it affirms that the European Parliament acted correctly in lifting the MEPs' immunity because their judicial investigation began in 2017, before they became European deputies in January 2020. It also asserts that the judicial resolution in the Spanish state is paralyzed because the Catalan politicians went into exile, and their first arrest warrant was issued in October 2019, when the Supreme Court sentence was handed down against the nine pro-independence political and social leaders. The European court does not consider that Catalan politicians are being persecuted for their work in the EU Parliament, which - in its opinion - has to be protected and shielded.
Appeal and interim measures
The General Court's sentence is subject to appeal and the Catalan politicians' lawyers are to present an appeal against the sentence to the higher instance, the European Court of Justice, to try and change it. However, judge Llarena could ask for their arrest, and for that reason, lawyer Gonzalo Boye will ask the European courts for an interim injunction - first going to the vice-president of the EGC, and if he denies it, to the ECJ - to protect the politicians again until a final ruling is issued.
To sum up: the next few days will be dizzying.