Brexit has had a complex impact on Spain's case against the Catalan pro-independence leaders in exile. Spanish judge Pablo Llarena asked the United Kingdom on Monday to continue the European Arrest Warrant process against Clara Ponsatí. Ponsatí became an MEP, and covered by parliamentary immunity, at the weekend - as a consequence of Brexit - but judge Llarena considers that, as a Scottish resident, she is no longer covered in the UK by that immunity, which only applies to EU member states.
He has thus decided to ask the European Parliament to waive her immunity "as urgently as possible" for countries within EU territory, while simultaneously maintaining Spain's warrant for the former Catalan education minister's arrest without the need for a waiver. It is the same two-pronged approach he has already applied in the cases of two other Catalan MEPs, Carles Puigdemont and Toni Comín.
Llarena considers that the exiled minister enjoys parliamentary immunity, but that this status "does not cover the territory of [the UK]". For that reason, this Monday he has called on the British authorities to continue the processing of the arrest warrant and to consider strengthening the precautionary measures against Ponsatí "to prevent her departure to another country". Since Saturday, when the Brexit withdrawal agreement came into force, Llarena affirms that "the immunity of the [EU] parliamentarians is not a norm applicable in the territory of said country".
The Spanish judge's submission stresses that there is no need to convert the case into an extradition regulated by the bilateral treaty between Spain and the United Kingdom. On the contrary, he recalls that, under the Brexit agreement, European warrants that are already issued, like Ponsatí's, "must continue to be processed, as part of the judicial cooperation in criminal matters".
At the same time, the judge recognizes her immunity in EU territory - with the exception of Spain - and therefore has decided to ask the European Parliament for a waiver of this status, in order to be able to continue the extradition process.
The St Andrews university teacher's status in Spain, according to the judge, is the same as that of Puigdemont and Comín: there is no need for a waiver because she has no parliamentary immunity in Spanish territory, where domestic law applies. She was charged on March 21st, 2018, "almost two years before her proclamation as an elected MEP'.'
Strengthen precautionary measures
In the face of the new situation, the Spanish Supreme Court judge urges his British counterparts to strengthen the precautionary measures against Ponsatí "if they believe that there is a greater risk that the prosecuted person may evade" the extradition process. The Spanish judge's document warns that there is "a risk that the defendant will leave the territory of the UK to settle in an EU country where she is covered by immunity."