The Court of Justice of the European Union, also known as the Luxembourg Court, recognizes that provisional imprisonment is a precautionary measure that is in the hands of the national judge who is instructing the case. Furthermore, in cases of immunity of the defendant in question, the CJEU does not deny the possibility that this prison can be executed, since the requirements that sustain it are something that each member country must assess. How much more then in cases in which the defendant lacks that immunity, as is the case of Carles Puigdemont.
There is, therefore, no obstacle in Union law that prevents the judge who is preparing a case against a specific person from dictating how many precautionary measures deems appropriate to guarantee the success of the procedure in question, recall lawyers consulted by ABC. And one of those measures is the provisional prison that Llarena urges in the euro order that Italy will decide on Monday whether to execute.
Proof that the CJEU disassociates a measure such as provisional imprisonment from an immunity is the sentence in which it responded to the preliminary question that at the time – after the end of the trial of the ‘procés’ and before the sentence-, the president raised of the Second Chamber of the Supreme Court, Manuel Marchena, in relation to Oriol Junqueras. The former vice president of the Generalitat, today pardoned, had been elected MEP in the same elections (May 2019) attended by Puigdemont, Comin and Ponsatí. Junqueras was then in provisional prison and the court of the ‘procés’ denied him to go to collect the record when verifying that there was a high risk of flight, in view of the background of the fugitives and the imminent sentence that would condemn them, in October of that year, for sedition.
The ruling of the Luxembourg Court was a hard blow for Spain because it recognized the status of MEP from the moment one is elected and argued that the Supreme Court should have allowed him to collect the minutes without the fact of being in provisional prison being able to be an obstacle to it.
However, he added something very important about that posting next: ‘(…) If the competent national court considers that a measure of provisional detention imposed on a person who has acquired the status of Member of the European Parliament should be maintained, must request the European Parliament to waive the recognized immunity as soon as possible in the second paragraph of Article 9 of the Protocol on the privileges and immunities of the Union, in accordance with the third paragraph of the same article ”.
And that is precisely what Judge Pablo Llarena did when he urged the European Parliament to lift the immunity of fugitive refugees in Belgium. The European Parliament did so in March and, although they were reestablished for a few weeks, on July 30 of this year the General Court of the EU rejected this “shield” for the three parliamentarians, considering that the risk of arrest would be minimal. This is because the surrender procedure in Belgium was suspended when Llarena raised a question for a preliminary ruling before the CJEU, highlighting the compliance framework of the euorder. On Friday, Puigdemont’s defense once again asked the TGUE to reactivate that immunity given the possibility that Italy will execute the surrender order tomorrow.
The jurists do not dare to venture the decision that the judge of the Court of Appeal of Sassari (Sardinia) will make, but they are skeptical about the possibility that this immediate delivery to Spain will materialize.
They do not doubt that the arrest warrant issued by Llarena – which resulted in the arrest of the former president on September 23 after stepping on Italian soil – is in force, nor is it that the fugitive lacks immunity.
But they do find it difficult for the Italian judge to agree to hand him over immediately with, on the one hand, the new request for precautionary measures to the TGUE (which has not yet made a substantive decision on the immunity of the three MEPs) and especially the answer to the question for a preliminary ruling that Llarena raised before the Luxembourg Court.