Spanish justice faced with two different defence strategies

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

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

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

Puigdemont has not been a fugitive at any time. He has been at the disposal of Spanish justice in Belgium, where he was detained for 11 days after Judge Pablo Llarena issued a warrant for his arrest and surrender. After analyzing the order, Belgian justice understood that extradition should not proceed. 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 extradition for the crimes of rebellion and sedition did not fit, but for embezzlement. Judge Pablo Llarena did not accept the decision of the German court, ‘fled’ German justice and withdrew the arrest warrant and delivery. He is now at the disposal of Spanish justice in Italy, where he has also been detained for one night, until the judge has released him, setting an appearance for October 4, when it will be decided whether he will be extradited to Spain or not.

There is not a single minute in which Puigdemont has not been at the disposal of Spanish justice. He has been neither a fugitive nor a rebel. He has simply exercised his right to defence without the SC having been able to convince any European judge that his conduct in the months of September and October in Catalunya 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 been kept in prison after being elected deputy and having taken possession of his seat without requesting the supplication to Congress; he has been prevented from taking possession of his seat in the European Parliament after having been proclaimed elected candidate by the Central Electoral Board by being prevented from going to swear the oath of the Constitution in the Congress of Deputies. A preliminary ruling was submitted to the Court of Justice of the European Union (CJEU) on when Junqueras had acquired the status of elected deputy, but a judgment was handed down against him without waiting for the CJEU’s response, which would have prevented such a judgment from being handed down.

Junqueras can only wait for the decision of the ECtHR.

We all know what has happened to Puigdemont. He is free and is an MEP, despite the fact that both the SC and the Central Electoral Board did everything possible to prevent it.

The SC has had to ask the European Parliament for a request to proceed against him, something it did not do with Oriol Junqueras, despite the fact that the European Parliament recognized them as MEPs on the same date. The request has been granted by the Parliament, but with a number of votes against it never seen before. The 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 it will adopt them shortly after a hearing from which the Spanish state will not come out well. The incident of the arrest in Italy will end like all the previous ones.

It has also been forced to raise a preliminary question to the CJEU after the refusal of the Belgian justice in its entirety to give effect to the arrest warrants and delivery issued by Judge Pablo Llarena on the grounds that the TS is not the competent body to do so.

The ruling on this preliminary ruling may be decisive, since the refusal of the Belgian courts to execute the arrest warrant and surrender rests on the violation by the SC of the right to an ordinary judge predetermined by law and the fundamental right to a second hearing.stance. A judgment of the CJEU contrary to the claim made by Judge Pablo Llarena would extend to the entire trial and would entail a de facto declaration of nullity of the judgment of the SC on the ‘procés’.

For this reason, Judge Pablo Llarena is maneuvering to get the Italian justice to extradite Puigdemont, in order to have him arrested in Spain and mount an operation similar to the one mounted by Judge Marchena in the prejudicial question against Oriol Junqueras. It does not seem that he is going to get it.

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

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

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