Toni Comín: “The European Parliament will have to guarantee our immunity before Spain”

An interview with the MEP and exiled Catalan minister, following the first ruling by the Luxembourg court and the likelihood of his return

Josep Casulleras Nualart
19.07.2022 - 10:13

Almost five years in exile have not been wasted. Rather, something positive has come out of it. Toni Comín, MEP for Junts per Catalunya and vice-president of Catalonia’s Council for the Republic, has as strong a desire as ever to return to Barcelona. “Freedom is about being able to go home.” Nevertheless, the legal wins and their political impact have made all this time away from home worthwhile. And right now is when the most significant court rulings will begin to arrive. The first, two weeks ago, wasn’t entirely favourable to Comin’s interests, but, as he explains in this interview, certain aspects lead him to be more optimistic than pessimistic.

Were you expecting a ruling like that?
—It was one of the possible outcomes we’d considered. In fact, several months ago we had to decide whether to pursue the case or not, as it wasn’t really necessary, following Sassoli’s decision to admit us as MEPs. We decided that we had nothing to lose by going ahead, since it might benefit us in some way, in spite of the risk that we might have lost. Were we surprised by the ruling? No, we weren’t. Is it what we wanted? It is not. But of all the cases we have in Luxembourg it wasn’t the easiest to win; it was the least important because it was about whether we were MEPs when we’re already MEPs.

And was it worth it?
—Without overstating the outcome, from a cold, objective reading of the ruling, I think we’ve largely achieved our goal, as we’ve achieved things which are valuable for our defence strategy. On balance, it’s more positive than negative.

You wanted Antonio Tajani to be overruled, but the court didn’t do so, meaning it didn’t set a new precedent from your case.
—That wasn’t the lawsuit’s intended purpose, for the court to establish a new doctrine or set a new precedent. It might have been someone’s hope, but it wasn’t mine or my lawyer’s. The ruling states that everything Tajani’s actions were lawful because Oriol Junqueras hadn’t been convicted when Tajani made his decision. And then, once Junqueras had been convicted, when Sassoli contradicted Tajani’s decision, his actions were possible precisely because of what had happened to Junqueras. They say that before the conviction the actions of the president of the EU parliament were correct and, after the conviction, the actions of the other president were also correct, even though they are diametrically opposed.

They saved Tajani.
—Yes, I’ve detected a vested interest in saving Mr. Tajani and the EU parliament, and a desire to protect them. They argue that actions which can be appealed must have irreversible legal effects which harm the plaintiffs’ interests. Therefore, according to the court, what Tajani did was not irreversible, and thus he did nothing illegal. Of course, we will file an appeal, as we disagree.

According to the ruling, you’ve had immunity since 13 June 2019. How can you make use of this fact?
—We’ll have to study it together with our legal team. In principle, it’s the European Parliament who will have to make this fact clear to the Spanish judicial authorities. Following this ruling, the EU parliament will have to act in one way or another so that our immunity is respected by everyone, including the Spanish Supreme Court, which is failing to respect it at present.

As MEPs, can’t you use this ruling to force the Speaker of the [Spanish] Parliament to uphold your immunity?
—It’s the EU parliament that must compel the Spanish authorities to recognise our immunity. And the speaker is its representative. We need to work out what the procedures might be, it’s too early to say what we’re going to do.

Is this part of the ruling also good for other ongoing cases before the Luxembourg court?
—In terms of the court’s request to proceed against us, it’s extremely useful to say that the European Arrest Warrant (EAW) upon which the request is based was illegal. The petition should have been made before the EAWs were issued. However, they were issued afterwards. We have numerous arguments to prove the illegality of the petition, such as fumus persecutionis [“suspicion of persecution”], procedural flaws… But it turns out that the court itself has spoken in favour of another of our arguments: that the EAWs were unlawful. In other words, it turns out that the Court of Justice of the European Union (CJEU) is using one of the legal arguments we used in the other ongoing case before the CJEU. This means that now there’s a greater likelihood that the court will rule in our favour since is has taken onboard one of our arguments.

If you win the case of the petition brought before the European Parliament, what will you do?
—The thing is that before that happens there might be another case concerning the EAWs’ lack of validity. It’s quite something to see how all these ongoing court cases interact and overlap. At the moment we have the case regarding the illegality of the European Arrest Warrant because Justice Llarena failed to petition parliament beforehand. And next Thursday we’ll see how the pre-trial deliberations go with the attorney general’s report, which will give us a fair idea of where we stand. Optimists such as Javier Pérez Royo believe that the European Court of Justice (ECJ) will rule that Spain’s Supreme Court did not have jurisdiction to hear the case. If so, that would be a second ruling in favour of dropping the European Arrest Warrants, meaning the petition before parliament would also have to be dropped.

Which way do you think the pre-trial deliberations will go next Thursday?
—I have to be careful when making any predictions, but there are several possibilities. The best-case scenario, which is how Pérez Royo sees it, is that the ECJ finds that the Supreme Court did not have jurisdiction to rule on this case. If the ECJ rules that Belgium acted correctly when it refused to extradite [exiled Catalan minister] Lluís Puig, it would be a first victory; if it rules that a country can’t issue a second EAW for the same actions against the same people, it would be another victory. And to go a step further, which would be the best outcome for us, would be if the court rules that Llarena didn’t have jurisdiction in this case.

And what would a negative outcome look like?
—It wouldn’t rule any of that. And it would state that Llarena was in the right, that Belgium was wrong in refusing to extradite Lluís Puig and that it can issue new EAWs. Anything could happen. We always study all eventualities.

If you win this judicial puzzle, will it open the door to your return?
—I’ve always refused to speculate on our return as free individuals, as it’s too serious a matter, both politically and personally.

Are people being overly optimistic?
—Yes, they are. And I’ve always tried to keep them in check, whenever I’ve seen that that people are getting carried away.

Sometimes the optimism has originated from your own camp.
—I think people have interpreted words that have been said, which are perfectly objective. But everyone’s so hopeful that the smallest things get interpreted as “we’ve done it”, or “we’re bound to win”… Hope is really powerful. Then one of us or one of our lawyers makes a statement that says something different and it all gets taken the wrong way. Nevertheless, I believe that it’s not about black and white, but rather shades of grey, and that’s been our experience. Imagine that this week’s ruling is enforced, and parliament succeeds in dropping the Spanish arrest warrants. Would that open the door for us to return home?

It would, wouldn’t it?
—Only temporarily. Because then Justice Llarena could petition parliament again, win the case and issue a new EAW and a new Spanish arrest warrant. It might prove to be temporary, for a few months, not even until the next EU elections.

And this in spite of the fact that you’re an MEP and have immunity.
—But when we cease to be MEPs, our immunity will come to an end. Earlier I didn’t mean that our return was linked to Europe, but rather that it might be linked to the time that passes until the Supreme Court lodges an appeal correctly.

Would you be willing to accept the potential legal risks of your return, if the situation was politically favourable?
—The thing is that with the Spanish Supreme Court the risks are clear, there are no open-ended outcomes. After what we’ve seen over the years, the possibility of taking action to see how the Supreme will react would be irrational. Because, objectively, whenever the Supreme Court has had the opportunity to act in a negative way toward us, it has done so. It’s all or nothing: either the Spanish arrest warrants are dropped or they aren’t. If they don’t drop them first, we won’t come back; they won’t drop them because we’ve come back; either we have guaranteed immunity before we come back, or we’ll never have it. This sort of risk isn’t part of the deal. Legal safeguards are crucial in this regard because it’s all about winning.

So, you won’t take any risks in order to return.
—It’s not about taking risks as such. It’s about winning. Taking risks make sense, if that helps you to win. Risks are a means, not an end in itself. The risks we take must be useful to help us win, but if they’re bound to lead us to defeat, then it’s not a risk, as we’ll go straight to jail, and it wouldn’t make any sense politically. Or personally. Which means, we either have guaranteed immunity or we don’t. And I’m not of the opinion that we should come back to see what happens as a means of testing the court. Not at all: if we put the Spanish court to the test, we already know what it’ll do. We need to have legal guarantees in place.

If there were no legal risks, do you now see favourable political conditions in Catalonia to be able to return?
—The return in itself might well generate favourable political conditions. Is our return capable of creating political dynamics on its own? That’s the question.

And is the situation in Catalonia conducive to creating such political dynamics on your return?
—Perhaps the less favourable the political situation, the more necessary it is for us to play our part, doing whatever is within our power to turn the situation around. Is it about taking advantage of a favourable situation or is it a matter of trying to reverse an unfavourable moment?

Did some in the independence movement seek to sever ties with you?
—Yes, but that was right from the start, when there was a strategic divorce, when a part of the independence movement didn’t believe in the strategy of going into exile. In some cases, our very strategy has been challenged.

But now it’s the Catalan government itself that wishes to adopt a different strategy from that of the exiles.
—One ought to distinguish between the president and the cabinet, where there are different ministers, and not everyone shares the same views on exile. And the current president, Pere Aragonès, shared our strategy while he was vice president. Aragonès has maintained the same relationship with respect to those in exile as he did before.

But Aragonès is now president, and that’s a substantial change.
—Of course. This has an effect in many ways, in his relations with those in exile, with the Spanish government…

Also in terms of the talks with the Spanish government. What path should be taken now, if attempts at dialogue are unsuccessful?
—There is a whole part of Catalonia’s coalition agreement that is not being complied with. The agreement says that there will be talks in which there will be representatives of the two parties on the Catalan side, and it doesn’t state that they must be members of the Catalan government. President Aragonès vetoed the presence of Junts, and then ERC called for Junts to be present at the talks, when Aragonès vetoed its presence, with a condition that doesn’t appear in the investiture agreement . And even more important: the agreement states that two avenues must be explored, that of dialogue and that of creating a space for strategic leadership of the entire independence movement with the presence of civil society and political parties in which to create an alternative, if the talks [with Madrid] fail. This strategic space has not been created and, therefore, the agreement is not being fulfilled.

There have been attempts to put it into action.
—There were discreet conversations for a year, in which the Council for the Republic took part. Because, as the investiture agreement says, the strategic management structure must, to some extent, be linked to the Council for the Republic. But in the end the space wasn’t created because ERC decided that the Council’s mission was unacceptable to them. Not its governance or institutional structure: ERC openly objected to the Council’s mission, which is to bring about the 1 October mandate, arguing that it is not clear to them that the 1 October mandate is valid. Do mandates expire because they’re not immediately put into effect? In the Council we have the deep conviction that this isn’t the case, not when it involves a democratic issue. No one can revoke that mandate, not parliament nor anyone else, only the voters, with another referendum. That’s why we’ve always been open to a new referendum, but we say it only makes sense if it’s agreed upon. A new unilateral referendum has no advantage over the vote on 1 October [2017]. We’ve already done that. This debate as to the validity of the 1 October mandate stalled the debate about a strategic management structure.

Do you not feel the strategic management structure is possible?
—If the coalition agreement can’t be complied with, the parties will have to make decisions.

Could Junts decide to leave the government?
—It’s a decision that must be taken by Junts, the executive board and the rank and file.
But what’s your opinion?
—I think it’s necessary to make an objective analysis of the situation. If it’s a 52% government that captures the will of the majority of citizens who voted on 14 February to go ahead with the independence process and one of the ways to move forward, the talks with the Spanish government, doesn’t work, while the other way hasn’t directly been tried, an honest diagnosis of the situation needs to be undertaken.

You seem to be in favour of Junts leaving the government.
—No, right now I don’t want to tell my party what to do or what not to do.

It’s been almost five years since you went into exile. How are you holding up?
—My daughter speaks Dutch, she’s been here for five years, she has her world, she’s integrated perfectly. If your daughter is happy in Leuven, that gives you a connection. I have a lot of close friends here now, and obviously you become integrated. In that sense, things are easier than they were five years ago. Nevertheless, in spite of this, the desire to return is as strong as the first day. I want to go back home. Freedom is all about going home, and I’ve seen that in exile. We’ve taken a decision as a family not to break the bond with Barcelona, with my partner, my mother, my daughter… It’s been five years that have passed slowly, but on the other hand they’ve passed quickly, because we’ve had more victories than defeats. As our victories on the legal front have a very large positive political impact on independence, everything we’re going through makes sense. We’re aware that we haven’t wasted all this time, but rather we’ve been winning.

And have you managed to gain respect as MEPs?
—At first we noticed that some people wanted to lay a cordon around us, to not let us act like MEPs, because the Spanish MEPs had poisoned their colleagues’ minds. And little by little, day by day, with teamwork, we’ve manged to overcome this. Some tried to depict us as conservative populists, but then they saw that we’re more to the left of them. In the end people see your work. And I’ve been able to break down barriers, not only as a Catalan pro-independence MEP, but as a non-attached member, as it’s very difficult for non-attached members to act as rapporteurs, even more so when dealing with one of the most important issues of our time, laws on climate change.

Acting as a rapporteur on this issue was an important milestone for you.
—Yes, I’ve been able to work as a rapporteur for a section of this legislative report which is of the utmost political significance. As part of the development committee, I was able to put forward a proposal that EU members should spend between 1.5 to 2 billion euros a year on climate change and to help countries in the Global South to combat climate change. These countries are often the main victims of climate change, while they are also less responsible for causing it. It’s the idea that the polluter pays. And we’ve created a mechanism whereby 10% of the proceeds from the trading of greenhouse gas emissions will have to be spent on programs to combat climate change in countries in the Global South. All of this is vital, so that our constituents can see that we are participating in the ordinary legislative game at the highest level.

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