Short Detention, Long Shadow

Several videos show the arrest of Clara Ponsatí last Tuesday in the streets of Barcelona as she was surrounded by the press. An officer of the Catalan police Mossos d’Esquadra approached the pro-independence politician and explained that she must accompany him because of an arrest warrant. Mrs Ponsatí showed the polite subinspector the badge identifying her as a Member of the European Parliament (MEP) and claimed that she has immunity. The policeman responded that there is an order from the Tribunal Supremo, the Spanish Supreme Court.

Separatist politicians have forcefully condemned the arrest as an ‘attack on democracy’, ‘political violence’, ‘repression’ and ‘abuse of power’, while also asserting an egregious violation of an MEP’s immunity. Although these knee-jerk reactions must be viewed in light of the usual heat in Catalan politics, the issue of immunity does indeed merit closer legal examination. The question whether Mrs Ponsatí was protected from the execution of the arrest warrant boils down to a technical point of law relating to the temporal scope of parliamentary immunity. This piece argues that the arrest warrant issued by the Tribunal Supremo on 28 March 2023 does not hold up against established constitutional principles.

The law on immunity of Members of the European Parliament

According to Article 343 of the Treaty on the Functioning of the European Union (TFEU), ‘The Union’ enjoys such privileges and immunities as are necessary for the performance of its tasks and refers to the conditions laid down in the 7^th Protocol to the TFEU of 8 April 1965. Whereas Article 8 contains the rule on non-violability of MEPs in respect of opinions expressed or votes cast in Parliament, Article 9 lays out the rules of MEP’s parliamentary immunity. It provides in the relevant part:

During the sessions of the European Parliament, its 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.

The content of an MEP’s immunity thus differs according to his or her location. As Mrs Ponsatí was within the territory of her own State, domestic law determines the scope of the parliamentary immunity she enjoys. There is no common EU standard on the scope of parliamentary immunity. The Protocol’s blanket reference to the rules applicable to national members of Parliament seeks to place Members of the European Parliament on an equal footing. Therefore, the exact scope of parliamentary immunity of MEPs present in their home country can differ from State to State depending on the national rules and their interpretations. The Spanish Constitution and its implementing legislation confer, during their term of office, immunity to Deputies and Senators who may only be arrested in flagrante delicto. Therefore, there is no doubt that the Catalan MEP enjoyed parliamentary immunity during her stay in Barcelona which protects her from the legal consequences following from alleged breaches of the law, including arrest and detention. However, the crux of the matter at hand is whether the protection afforded also covers judicial measures arising from offences allegedly committed before acquiring the status as an MEP.

A matter of interpretation: the temporal scope of protection

The order of prosecution against Mrs Ponsatí was issued in March 2018 and relates to acts allegedly committed in 2017, whereas her parliamentary immunity pursuant to Article 9(1) of the 7^th Protocol began only in July 2019 with the inaugural session of the European Parliament (immunity as regards travel to the European Parliament pursuant to Article 9(2) began with the declaration of the election results, i.e. May 2019). The criminal acts attributed to the politician, who had been a member of the Catalan Government as Minister for Education, all relate to the organisation of the independence referendum held in October 2017, which had previously been prohibited by the Spanish Constitutional Court. As a result of the arrest warrant of 2018, Mrs Ponsatí left the country to live in Scotland and Belgium, from where she successfully defended extradition requests of the Spanish judiciary. For the first time in five years, Mrs Ponsatí returned to Barcelona last Tuesday and held a press conference announcing the launch of an online database documenting instances of ‘national persecution by the Spanish state against Catalans’.

The question is therefore whether parliamentary immunity protects against judicial measures relating to charges from before the time of becoming MEP. The investigating judge of the Tribunal Supremo is of the opinion that it does not. Laying out the legal bases for the proceedings against Mrs Ponsatí, the Court’s order of 28 March 2023 explains that if immunity were understood to extend to acts committed before the beginning of the term of office,

‘(…) it would overstep the space constitutionally reserved for this guarantee. It would mean forgetting that immunity protects against the initiation of proceedings designed to alter and disrupt the normal functioning of the legislative chamber, not to prevent the outcome of a criminal case in which the elected deputy or senator has already been prosecuted, having been subject to criminal prosecution from a moment prior to the constitution of the chambers and his or her incorporation as a member of any of them. (…) [T]he requirement of legislative authorisation for the judiciary to complete criminal proceedings initiated when the defendants were not elected deputies or senators would mean subordinating the exercise of jurisdictional power to a parliamentary tutelage alien to the balance of powers designed by the constituent power.” (Spanish original available here).

However, this reasoning is questionable on a number of grounds as it overlooks the purpose of immunity. As the Tribunal Constitucional, Spain’s Constitutional Court, has explained, immunity is a prerogative that protects the personal liberty of elected representatives against arrests and judicial proceedings that could lead to a deprivation of liberty, thereby preventing the parliamentarian from exercising his or her functions because of ‘political manipulations’ (STC 243/1988). The Tribunal Supremo would be overstepping its competence when it itself limits the protections of parliamentary immunity to the initiation of proceedings designed to alter and disrupt the normal functioning of the legislative chamber. It is unlikely that the judiciary would ever declare its own measures as unjustified and politically motivated. The Spanish Constitution therefore states, in Article 71(2), that the respective chamber must make that determination and authorise prosecutions against its members. Although the European Parliament had lifted Mrs Ponsatí’s immunity in 2021, the Court of Justice of the European Union (CJEU) afterwards reinstated it upon appeal, albeit only provisionally. The case is currently pending before the General Court.

The Tribunal Supremo’s view, whereas parliamentary immunity does not apply to charges from before the mandate, is unconvincing and also at odds with the Spanish Constitutional Court.

Firstly, the possibility of pursuing charges for political reasons cannot a priori be ruled out because they relate to allegations from before the election. The crucial factor is that a member of parliament is subjected to judicial measures during his or her term of office. When the supposed acts were committed is irrelevant as the impact of prosecution on the functioning of the legislature is the same. This interpretation is supported by the Standing Orders of the Senate, which in Article 22(1) state that the required authorisation for indictment or prosecution of a Senator is also necessary when a person, who is already subject to judicial proceedings, accedes to the position of Senator.

The Tribunal Constitucional further confirms this understanding of parliamentary immunity. In explaining the principles of parliamentary immunity in two decisions, the Court states:

“Immunity (…) responds to the higher interest of the national representation not to be altered or disrupted, neither in its composition nor in its operation, by possible criminal proceedings (…) against its members for acts committed both before and during their term, to the extent that such proceedings or accusations may result in the impossibility of a parliamentarian to effectively fulfil their duties.” (STC 123/2001 and 206/1992).

The arrest warrant goes on to suggest that the principle of the balance of powers cannot subject the judiciary to parliamentary oversight. However, this does not hold up against the principle of the separation of powers. After all, the right to immunity is not a privilege of the individual to be exempt from the law, but instead serves to protect the interests of Parliament as a whole.

Hereinafter, the Tribunal Supremo explains that

‘(…) in light of the principle of equality enshrined in Article 14 of the Constitution, as immunity is a privilege – of undeniable and legitimate constitutionality – it should be subject to a restrictive interpretation (…)’.

It is true that by virtue of their immunity members of parliament are given a special legal protection that other citizens do not have, which is open to misuse and the obstruction of justice. However, balancing the interests of the legislature with those of the judiciary already finds expression in the temporal limitation on parliamentary immunity. As opposed to the principle of non-violability, the period of immunity ends with the term of office. The idea is that justice should be delayed, not denied. Legal proceedings and judicial measures may be instituted once the status of MEP is no longer held.

Looking ahead: Prospects and forebodings

A competent legal defence of Mrs Ponsatí, equipped with the right arguments, could convincingly argue that she was and remains protected by parliamentary immunity – and that the arrest accordingly was illegal. The same question on the scope of immunity looms large over the fates of other Catalan MEPs who also live ‘in exile’ and find themselves in a similar situation. Among them is Catalonia’s former President Carles Puigdemont who, also last week, filed an appeal before the Tribunal Supremo demanding, inter alia, to revoke the Spanish arrest warrant against him and to refer preliminary questions on his parliamentary immunity to the CJEU (see here).

In the meantime, the matter of Mrs Ponsatí’s arrest has been referred to the Legal Committee of the European Parliament which will determine whether the immunity of a Member has been breached by the authorities of a Member State pursuant to Rule 7(1) of the Rules of Procedure of the European Parliament. However, the Committee is not competent to review the application of domestic Spanish law.

Mrs Ponsatí was released after two hours and summoned to appear before the Tribunal Supremo next month to be questioned as a defendant. She has already announced her non-appearance and left the country the next morning. Instead of continuing the game of cat and mouse and resting false hopes in the European Union, the independentists could consider the route of exhausting domestic legal remedies, thereby paving the path to the European Court of Human Rights. In light of the contestable reasonings offered by the Tribunal Supremo, this might be the most promising way forward.