Absentees in Strasbourg

Spain’s electoral law establishes that someone being held on remand (Oriol Junqueras) may stand in the European elections. The right to passive suffrage —the right to stand for office— is not limited until a defendant is eventually convicted. This also applies to the two other people (Carles Puigdemont and Antoni Comín) who face charges in the same criminal case and are currently residing abroad. All three of them won a seat on May 26, having garnered a very significant number of votes. With their election, they have exercised their right to passive suffrage and, by voting for their slate, their voters have exercised their right to active suffrage. Thus a basic right in any democracy has been exercised. Nevertheless, their voters —and the general public— have now witnessed how their rights failed to materialise on July 2.

Why did this happen? The answer is either very simple or very complex, depending on how you look at it. There is a formal reason: they were not able to comply with the prerequisite of pledging their allegiance to the Spanish Constitution before Madrid’s Central Electoral Committee. In Junqueras’ case this requirement was not met because the Supreme Court turned down his request to temporarily leave the facility where he is being held in order to take the oath. In the other two cases (Puigdemont and Comín), the Court did not allow a proxy oath, even though the law does not expressly rule out this possibility. But there is also an underlying reason which the Supreme Court itself has not attempted to conceal: the desire to deliberately prevent them from taking the oath in order to protect the criminal case from the effects of the parliamentary immunity granted with the office of MEP.

Is that an acceptable outcome? I don’t think so. It is not acceptable in social and political terms, but it is equally unacceptable in legal terms, which is what I would like to focus on. Any casual observer will immediately notice that the surrounding factors are treated in a vastly disproportionate manner. The value of being elected to office is offset by a formality which effectively renders it void. Besides, the Spanish authorities clearly meant to impede the procedure. It is shocking that Oriol Junqueras was denied permission to take the oath.

Furthermore, there is another aspect that must be taken into consideration and it is not a minor issue. Does it make ant sense for an elected MEPs to have to swear their allegiance to their country’s Constitution? Ever since the Lisbon Treaty, European elections are regarded as a ballot that concerns all the European citizens as a whole, a process that goes beyond the borders of member states. This is the same criterion that applies to Europe’s right to suffrage. Additionally, in these elections the laws of a member state merely serve the purpose of regulating the ballot itself, a procedure that ends when the election results are proclaimed. So pledging their allegiance to their country’s Constitution strikes me as a highly dubious requirement for newly-elected representatives.

Why did the Spanish State behave in this manner? The answer to that is obvious. As I said earlier, the office of MEP affords immunity to an individual. The European Parliament believes that the effects of said immunity remain in place until the representative is convicted. This immunity could interfere with the criminal case currently being examined by the Supreme Court, which would be forced to ask the European Parliament to lift the defendants’ immunity. To that effect, the Spanish court would need to submit a formal request that would prompt a debate in the European chamber as to whether the prosecution of the Catalan leaders is politically motivated. Such a debate would be very embarrassing.

This poses such a big risk that the Spanish authorities are prepared to avoid it regardless of the cost, even if it means bending the law. The Supreme Court has laid down a smokescreen in the form of a pre-trial enquiry with the European Union’s Court of Justice (EUCJ) which does not directly address the key underlying problem. They are playing for time hoping that a guilty verdict will arrive before the legal conflict is resolved, and therefore the sentence will strip them of their immunity. Paradoxically, it is Oriol Junqueras who stands to lose the most, because the judicial situation of the other two MEPs means that a guilty verdict will not affect them for now.

Yet the conflict will not be over. Sooner or later, the EUCJ will have to see the case and its decision will be of paramount importance as far as some of the EU’s foundational values are concerned, such as democracy and the rule of law. Catalonia’s independence bid in September and October of 2017 was far from mindful of the law. I myself have been very clear on this point and have voiced my views in public. But the State’s response is also an important stress test for the rule of law and brings in a new dynamic that poses a threat to its health and fortitude.