When former president Carles Puigdemont and former ministers Toni Comín and Clara Ponsatí were elected MEPs, trials in Scotland and Begium to decide on their extradition orders were suspended, pending a decision by Parliament on their parliamentary immunity at the request of the Spanish Supreme Court. They have been in the European Parliament for almost a year now, but it is only this Monday that the case is being considered because, until now, the trial, which has to be secret and behind closed doors, had not been given the green light to move online.
This issue, that of non-presence, is one of the ones that has generated the most background noise. MEPs are not happy with the fact that the request was given the green light to be dealt with online, as this possibility is not contemplated in the Parliament's regulations. It considers that it may violate the rights of the three MEPs - the procedure must guarantee confidentiality - and assumes that it demonstrates the political will of the committee's president, a member of Ciudadanos Party, to speed up the process with a system that the same party had so far rejected in Catalonia. In fact, the situation was exactly the opposite when the intention was to invest Puigdemont by electronic means in the Catalan Parliament in January 2020. At the time, Cs considered that the rights of the opposition were being trampled on and JxCat did not understand how in the 21st century this route could be ruled out.
This is not the only "irregularity" that the defence, headed by the lawyer Gonzalo Boye, believes it has found. To begin with, he sees a procedural error in the fact that there is only one rapporteur for three different MEPs who are accused of different crimes - Consatí is not accused of embezzlement, as Puigdemont and Comín are. During the plea they will argue that the rapporteur, Bulgarian ultra-conservative Angel Dzhambazki, shares a parliamentary group with the Spanish far-right Vox, who was one of the accusations throughout the judicial process in the Spanish Supreme Court against political prisoners. And there is still another basic element that feels wrong to the defence lawyers: of the twenty-five members of the committee that deals with the petitions (including substitutes), eight are Spaniards from Cs, PP, PSOE and Vox.
The aim of Carles Puigdemont, Clara Ponsatí and Toni Comín is not to lose parliamentary immunity, since losing it would mean the reactivation of their Euro-orders. Even so, that is not the only aim. The request is one more step in the strategy of the pro-independence leaders in exile to export and denounce the judicialization of the independence bid and its repression. For this reason, the three of them, together with their lawyers, Gonzalo Boye and Josep Costa, want to make this parliamentary process a "trial of the trial". The most powerful and fundamental argument that the MEPs will put forward is that they suffer "political persecution", the principle of "fumus persecutionis", because they consider that the aim of the process itself is "to prevent the three of them from being able to act as MEPs", according to sources close to them. In this set of arguments, they point to the lack of impartiality of the Spanish judicial system, the "ideological bias of the Prosecutor's Office" and the "intentional delays" of the Constitutional Court to delay the cases against pro-independence leaders to arrive to the European High Court.
In relation to the Spanish judicial system, another argument is that the Spanish Supreme Court was not competent to issue the Euro-orders requesting his extradition for sedition and embezzlement. They emphasize that the request would have to be rejected from the outset because, as they are no longer acting Catalan MPs, they should stand trial at a normal court, not the Supreme Court. In fact, for this reason the Belgian justice system rejected the extradition of former ex minister Lluís Puig.
Finally, the defence will recall that the crime of sedition does not exist in countries such as Germany, France, Italy and Belgium. In spite of all this ammunition, Puigdemont, Comín and Ponsatí are aware that in most cases the requests to suspend parliamentary immunity are accepted. They will have the opportunity to appeal to the European Court of Justice for irregularities in the process.
A four-month procedure
After a three-month break forced by the virus, today is the first video meeting of the European Parliament's Legal Affairs Committee (called JURI). The MEP in charge of the report, Bulgarian ultra-conservative Angel Dzhambazki, will present his case and the members of the committee, chaired by Ciudadanos MEP Adrian Vázquez, will exchange views. The hearing of the MEPs concerned will take place later. They will have 15 minutes each to speak and may be accompanied by their lawyers (or allow them to speak). In a third phase, after studying and taking into account the allegations, Dzhambazki will have to present the draft report in which he will make a recommendation to the committee regarding the lifting of the MEPs' immunity, which the members of the JURI will have to accept or reject with a vote. The decision will then be put to a plenary session so that all MEPs can vote on it.
The whole process takes at least four months, a timeframe that will vary depending on the meetings the committee chair convenes or the ability of the defence of the exiles to delay it by submitting documents or making claims. In a pandemic-free context, all this would take place in one of Parliament's chambers behind closed doors. Only members of the committee, their assistants and affected MEPs would be able to attend. But now, with the backing of the Parliament's legal services, the committee chair has a free hand in getting everything done electronically and in fact only he will be physically in the room.
The stages of the immunity review process
Presentation of the case
In the first meeting (today), the rapporteur, Bulgarian ultra-conservative Angel Dzhambazki, presents the case and MEPs exchange views on it.
In a second phase (lasting about a month) Catalan MEPs will have 15 minutes each to argue.
Presentation of the report
Having heard the allegations, the rapporteur presents the report to the committee, in which he recommends whether or not to lift the immunity.
Vote in committee
After analysing the rapporteur's report, the members of the committee vote on whether or not to accept it and bring it to the plenary.
The final stage means that after the vote in committee, all MEPs will vote on the requests.