Junqueras’ Immunity: An Example of Judicial Dialogue

There is no doubt that the criminal prosecution of the "Catalan question" is a stress test for Spanish Justice. One of the last episodes, now with a European dimension, has been the "euro-immunity" of Junqueras. And, in this respect, the political and journalistic readings of the judicial decisions issued by the Spanish Supreme Court and by the Court of Justice of the European Union emphasize the confrontation. However, in my modest opinion, I believe that these decisions are an example of dialogue between courts, necessary to manage the current pluralism where legal orders are intertwined without clear hierarchies.

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The Case of Mr. Junqueras is a Case of Respect of the Rule of Law

Mr. Junqueras was not an MEP nor had any immunity whatsoever when he was put on trial for a crime committed in Spain in accordance with Spanish law. When the trial was completely over, in June 2019, but before a sentence was given by the Court, Mr. Junqueras was elected to the European Parliament. And that was possible, precisely, because Spain being a most protective country, his presumption of innocence was still complete at that time.

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Spain has a Problem with its Judiciary

According to the EU Justice Scoreboard of 2019 Spain is among the four EU countries with the worst perception about judicial independence among its citizens. The survey shows a trend that isn’t stopping: the perception about partiality of the judiciary is growing dangerously in the Spanish society. Causes are to be found in three elements: the political situation in the country; the shortcomings in the regulations on judiciary; the behavior of the judges themselves.

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The Junqueras Saga Continues

Notwithstanding the clear message from the ECJ, the Spanish Supreme Court has decided that the Catalan separatist leader and MEP Oriol Junqueras will not be released from prison. The contradiction between the logic of the ECJ’s judgment of December 2019 and the decision of the Spanish Supreme Court of 8 January 2020 forms a new challenge for the EU legal order, in the sense that it puts the relationship between EU law and Spanish national law under strain.

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A Matter of Representative Democracy in the European Union

With its judgment in the Junqueras case, the Court adopted a functional approach to the election procedure of the European Parliament, proceeding from the principle of representative democracy as one of the core values in the EU legal order. In particular, the Court stressed the need to ensure that the composition of the European Parliament fully reflects the free choice of the Union’s citizens, by direct universal suffrage.

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The End of Parliamentary Government in Europe

Has parliamentary government, after almost two hundred years of honoured service, come to an end in Europe? The fact that Spain had two elections in seven months and is still nowhere near a stable government is just the latest of many signs that it is indeed so – and I wonder what the ruling classes in the European countries, excluding France, are waiting for in order to take note of the fact and to do, night and day, in order to put in place the necessary remedies.

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The Criminal Conviction of Catalan Secessionist Leaders and European Human Rights Law

In the controversial judgement of the Spanish Supreme Court against the Catalan secessionist leaders, seven defendants were found guilty of the crime of sedition (amongst others) and sentenced to prison terms ranging from 9 to 13 years. An appeal to the European Court of Human Rights is likely but it is doubtful whether it will be successful.

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Constitutional Conflicts

Can the actions perpetrated by the leaders of the secessionist movement be understood to be crimes under Spanish law? Does the Spanish Constitution or international law protect those actions in the name of fundamental rights, including the right to protest? The Spanish Supreme Court deals with these issues in its lengthy opinion. A reply to José Luis Martí’s assessment of that decision.

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An Exotic Right

The Spanish Supreme Court’s ruling in the trial against Catalan secessionist leaders will definitely not help to solve the conflict. Quite on the contrary, it will make it intractable in the short run, as we are beginning to see in the riots in the streets of Barcelona. In my opinion, this ruling is unjust and legally wrong. Even worse, it is unconstitutional since it compromises the fundamental democratic rights of protest – the freedom of expression, the freedom of assembly, and the right to demonstrate.

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