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15 de març 2019

"Hold your hats, here comes Europe", by Gonzalo Boye (12 March 2019)

This is an English translation (by MS) of "De Europa vienen curvas " / "Atenció, ara ve Europa " by Gonzalo Boye (12 March 2019). I hope the author and newspaper don't mind.

Click here if need be to access the whole text

"De Europa vienen curvas" (Spanish)
"Atenció, ara ve Europa" (Catalan) 

One fine day Rajoy thought it would be a good idea to judicialize politics and he must surely have made that decision given the certainty that, on the one hand, the prosecutor would fine-tune things and that they had "the second Chamber [of the Supreme Court] controlled from behind". However, what they never thought was that the situation would get out of hand because a group of madmen crossed the Pyrenees and decided to do battle on a neutral playing field and with an impartial referee.
To think that they had everything under control was not only a mistake but also reflects a very provincial vision of the real environment in which we move. The rules of the game are no longer, exclusively, those that they have so often been able to twist to suit their ends, for in the solution of legal problems (and indeed political ones), other rules - that, despite being there and in the sight and patience of all, are so unknown and odious for them - also come into play.

Spain, over the last decades, has been inattentive to the legal environment that surrounds it and this, many are finding, is generating serious problems of understanding about how they will end up solving some of the main legal problems arising from the dislate of the judicialization of politics.
The first clash with European legal reality was when Llarena became nervous and withdrew, for the first time, the European arrest warrant that Carmen Lamela, now a Supreme Court judge, had filed against President Puigdemont and Ministers Ponsatí, Comín, Puig and Serret.

Clashing head-on with this reality is becoming constant, as demonstrated when Schleswig-Holstein ruled that the facts that the Supreme Court is now trying again were not only not criminal, but also amounted o an exercise of rights and freedoms that every democracy must tolerate if it wants to carry on being one.

It was also a bath of humility or a new bump into legal reality to discover that a Spanish judge in Belgium could be sued for his acts if they were contrary to community norms, as happened with the current lawsuit against the judge Llarena before the Belgian courts. Then we were insulted and slandered, we were threatened in different ways and we were plagued by unfounded lawsuits and based only on patriotic ardour.

The latest surprise, and the next clash with reality, occurred when President Puigdemont announced his intention to stand for the European elections in May. The reactions have been the same as before: he cannot do it, this will come to nothing, he will be arrested as soon as he sets foot on Spanish soil, he is just a madman, etc. and so the narrative keep developing until they can understand what is really happening.

President Puigdemont, and any of the exiled politicians, can stand for the May European parliamentary elections because it is his right and because the rules that govern such an electoral process are not those that some think. Undoubtedly, the Organic Law of General Electoral Regime is a basic rule to be taken into consideration, but the rules contained therein may not be interpreted or applied separately from those from which the right to vote and to be voted into the European Parliament.

Our legislation is no longer a set of territorially-limited rules, but is part of a larger set that regulates a series of rights and freedoms that can neither be fine-tuned by the prosecutor nor controlled from behind. This and no other is the basis of what has been done so far and of all that will be done from now on: Spain plays in Europe, so local rules have to be interpreted in light of the European rules.

Marchena may try to condition the testimony of a defence witness by indicating what the penalties would be for not declaring what the prosecutor wants, but this act will have to be analyzed not from the heart but from the perspective of the law laid down in the European Convention of Human Rights. The same will happen with regard to the constant limitations of the right of defence and, above all, in the criminalization of the right to protest, the freedom of speech or assembly, and even the right to self-determination, which is certainly not a crime.

Llarena may or may not issue a third EAW, but it will have to be analyzed from the perspective of the Community directive regulating this cooperation instrument in relation to another series of European Covenants that Spain once signed and ratified and that therefore form part of the Spanish legal system.

If he issues the third EAW he will have to accept the result and if he does not issue it he must also accept that this will entail other legal outcomes that he will not like... That is, whatever he does, he will be tied not to what he believes is the law to be applied but to what really has to be applied as the law.

The Central Electoral Board may ban the exhibition of ribbons and "estelada" flags while allowing a political party that is standing at the [geneal] election to be promoted through the court as a private prosecutor, but it will have to accept the legal consequences that this will have in Union Law.

Likewise, its members may simultaneously prosecute Catalan politicians in the morning and, in the afternoon, resolve controversies that arise in the midst of the electoral campaign that they, impartially, have to regulate. What they will not be able to avoid is this having consequences and what being subject to the European Convention on Human Rights means.

They may carry on saying that there is a "State immunity" that prevents prosecution of a Spanish judge outside Spain but, meanwhile, they will have to go on defending this position in a Belgian court and, worse still, sooner or later, they will discover that this controversy has already been resolved by the jurisprudence of the Court of Justice of the European Union.

They will try to arrest, and even arrest, an elected MEP but they won't be able to argue that this is in accordance with the rules that govern the immunity of all MEPs and, far less will they be able to avoid the consequences of their own actions.

They will be able to say and do many things, but as long as they do not accept that being a member of a particular club - which is what the European Union is - has its servitudes, they will not be capable of understanding that a political conflict cannot be solved in the courts and that, if this is tied, the rules of the game can not be fine-tuned by the prosecuto or controlled from behind.

Things are rather more complex and they will doubtless find this out little by little because we are not improvising here, and the decision to play the game in a neutral field and with an impartial referee has been, is and will be the best decision. There's a bumpy ride coming and I'm off to get some popcorn.

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