SPAIN’S pre-trial detention of jailed Catalan independence leader Oriol Junqueras, could be an issue for its government under European protocols, according to a Scottish academic.
William Henderson, a lecturer in international law at Glasgow Caledonian University (GCU) was speaking exclusively to The National after the Advocate General of the European Court of Justice (ECJ), Maciej Szpunar, said the Spanish Supreme Court could not prevent the leader of the pro-independence Esquerra Republicana (ERC) from taking up his seat. He said that although such legal opinions were not binding, they were normally followed by the ECJ.
“The Advocate General is in a very influential position and there is academic research pointing to the court following Advocate General’s opinion in around two-thirds of cases considered for a 2016 publication,” Henderson said.
“Pre-trial detention looks like it could be a potential issue for Spain under Protocol (No 7) on the Privileges and Immunities of the EU, or at least detention from 26 May 2019 when Oriol
Junqueras was elected to the European Parliament/results were declared.”
Henderson said that under Article 7 of the protocol, “no administrative or other restriction shall be imposed on the free movement of Members of the European Parliament travelling to or from the place of meeting of the European Parliament”.
Likewise, under Article 9, during sessions of the European Parliament its members enjoyed, “in the territory of their own state, the immunities accorded to members of their parliament; in the territory of any other Member State, immunity from any measure of detention and from legal proceedings”.
It said immunity also applied to MEPs while they were travelling to and from “the place of meeting of the European Parliament”.
The academic added that “immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its members”.
However, Henderson had words of caution for the former Catalan president and one of his ministers who are in exile in Belgium:
“Carles Puigdemont and Toni Comin would probably be best remaining in Belgium until there is a judgment from the Court of Justice and then a decision on waiver has been taken by the European Parliament on waiving/defending immunity (assuming the court follows the Advocate General).
“We’re still a couple of steps away from this being a serious problem for Spain. We will need to see what the court says first, and then possibly the Parliament.”
Meanwhile the Council of Europe’s Group of States Against Corruption (Greco), has criticised Spain’s lack of compliance in judicial independence.
In a follow-up to recommendations it made in 2013, Greco called for “an overall anti-corruption strategy and effective implementation of laws” in the country.
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