Thursday, October 28

Spanish justice in the face of two different defense strategies

In constitutional terms, the defense strategy of Oriol Junqueras is as impeccable as that of Carles Puigdemont. The place of residence does not affect the exercise of the right of defense before the courts of justice. It makes no difference whether it is carried out from Barcelona or from Waterloo. What is decisive is that the citizen is at the disposal of justice, if a court so requires.

Both, Junqueras and Puigdemont, have been at the disposal of the Spanish justice. They both still are. There is no difference whatsoever in the position of both in this area.

The difference is that, in the case of Junqueras, the Supreme Court (TS) could unilaterally decide how his conduct was qualified and for what crimes he was prosecuted, while, in the case of Puigdemont, it had to go to the Belgian justice and convince her to extradite him so that he can be tried for the crime that the Supreme Court considered that he had committed.

Puigdemont has not been a fugitive at any time. He has been at the disposal of the Spanish justice in Belgium, where he was detained for 11 days after Judge Pablo Llarena issued an arrest and surrender order against him. After analyzing the order, the Belgian justice understood that the extradition should not be carried out. He was at the disposal of the Spanish justice in Germany, where he was also detained for a few days until the Supreme Court of Schleswig-Holstein decided that there was no room for extradition for the crimes of rebellion and sedition, but for embezzlement. Judge Pablo Llarena did not accept the decision of the German court, “fled” from German justice and withdrew the arrest and surrender order. He is currently at the disposal of the Spanish justice in Italy, where he has also been detained one night, until the judge has released him, setting an appearance for October 4, in which it will be decided whether he is extradited to Spain or no.

There is not a single minute in which Puigdemont has not been at the disposal of the Spanish justice. He has not been a fugitive or a rebel. He has simply exercised his right to defense without the Supreme Court having been able to convince any European judge that his conduct in the months of September and October in Catalonia could constitute the crimes of rebellion or sedition.

What has happened with Junqueras we all know. Not only has he been in provisional prison since the end of 2017, but he has also been kept in prison after being elected deputy and having taken possession of his seat without requesting a request from Congress; He has been prevented from taking possession of his seat in the European Parliament after being proclaimed an elected candidate by the Central Electoral Board by being prevented from going to swear the Constitution in the Congress of Deputies. A preliminary question has been raised to the Court of Justice of the European Union (CJEU) on the moment in which Junqueras had acquired the status of elected deputy, but a judgment was passed against him without waiting for the answer of the CJEU, which would have prevented said judgment was dictated.

Junqueras can only wait for the decision of the ECHR.

What has happened with Puigdemont we all also know. He is at liberty and is a European parliamentarian, despite the fact that both the Supreme Court and the Central Electoral Board did everything possible to prevent it.

The TS has had to request the request of the European Parliament to be able to proceed against him, something that it did not do with Oriol Junqueras, despite the fact that the European Parliament recognized them as deputies on the same date. The request has been granted by Parliament, but with a number of votes against never seen before. Parliament’s decision has been appealed to the General Court of the European Union, which did not adopt the requested precautionary measures regarding Puigdemont’s immunity because it understood that it was not necessary, but that it will adopt them shortly after a hearing of which the The Spanish state is not going to do well. The incident of the arrest in Italy will end like all the previous ones.

He has also been forced to raise a preliminary question to the CJEU after the entire Belgian justice refused to enforce the arrest and surrender orders issued by Judge Pablo Llarena on the grounds that the Supreme Court is not the competent body to do so. .

The judgment on this preliminary question may be decisive, since the Belgian justice’s refusal to comply with the arrest and surrender order rests on the violation by the Supreme Court of the right to an ordinary judge predetermined by law and the fundamental right to second instance . A judgment of the CJEU contrary to the claim formulated by Judge Pablo Llarena would extend to the entire trial and would de facto imply a declaration of nullity of the judgment of the Supreme Court on the ‘procés’.

For this reason, Judge Pablo Llarena is maneuvering to get the Italian justice to extradite Puigdemont, in order to have him detained in Spain and mount an operation similar to the one that Judge Marchena mounted in the preliminary ruling against Oriol Junqueras. It doesn’t seem like I’m going to get it.

The last word has not yet been said, but the most probable thing is that the sentence of the case ‘procés’ does not pass the filter of the ECHR and it may not that of the CJEU either. Carles Puigdemont will not have been prosecuted or convicted, while Oriol Junqueras will have spent years in jail before and after being convicted by the TS.

The terrible conclusion of the comparison of this double defense strategy for both Spanish democracy and its administration of justice is that a citizen can exercise his right to defense if he establishes his residence outside of Spain, while this right is reduced to a mere formality if you stay in Spanish territory.