The way of proceeding when a Senator or a Member of the Parliament is committed for trial (art. 750 – art. 756 LECrim, Spanish Law)

The Spanish Constitution (in Spanish Constitución española, henceforth CE) on its article 71 contains two prerogatives which protect the labour of the members of the two legislative chambers, the Senate and the Parliament. The inviolability, guarantees the lack of criminal responsibility for the opinions manifested and the votes emitted during the exercise of the parliamentary functions, and the immunity is a mechanism of protection against any detention (except flagrant offence) or against the subjection to a Criminal Procedure. Nevertheless, the protection guaranteed by the CE does not stope here, a Senator or a Member of the Parliament when is subjected to a Criminal Procedure is tried by the Spanish Supreme Court (art. 71.3 CE), which, at least on the paper, guarantees a higher degree of impartiality and independence.

The inviolability is concerned with a special procedure regulated on the Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), which establishes how such immunity can be lifted when there are strong evidences that a Senator or a Member of the Parliament is involved in a crime, mainly it is regarding the process of obtaining the authorization of the respective legislative chamber in order to commit for trial a Senator or a Member of the Parliament. Although the LECrim has to be complemented with the Law of February 9, 1912, which for example mentions the subjection of the Senators and Members of the Parliament to the Spanish Supreme Court (in Spanish Tribunal Supremo, henceforth TS), while the LECrim remains silent on it. Therefore, we have mainly three laws, the CE, the LECrim and the Law of February 9, 1912, regulating the same subject, and even with this triple regulation the subject is confuse and scarcely regulated, if we take into account that only the CE is the product of the actual Spanish democracy, we can make an idea of where is the problem, the LECrim and the Law of February 9, 1912, are old, which means that this is a subject forgotten by the Spanish legislator. Notwithstanding, there are other laws, the Regulations of the Senate and the Regulations of the Parliament contain articles which concerned with the immunity of its members, but they have not contribute to solve the problem either. 

For the sake of clarity, I think that the best in order to explain the immunity guaranteed to the Senators and the Members of the Parliament, is to make the most important questions and try to solve them one by one. Where has to be brought a report or lawsuit which attributes a crime to a Senator or a Member of the Parliament?, what happens if the report or lawsuit contains a crime which is not only committed by a Senator or a Member of the Parliament?, and if on the report or on the lawsuit does not appear Senators or Members of the Parliament but on account of the investigation there exists evidences of their participation?, in what stage of the Criminal Procedure is necessary the authorization of the respective legislative chamber?, is necessary the authorization of the respective Chamber to subject a Senator or a Member of the Parliament to a personal preventive measure?, are the regional parliamentarians invested with to the same immunity?, the special subjection to the TS is only for crimes, or for crimes and offences?, what happens if the respective chamber does not concede the authorization for committing for trial the Senator or the Member of the Parliament?, and if the investigated is a member of the European Parliament?

We have to start from the right to a ordinary judge predetermined by the law established in the article (24.2 CE). This right is developed in the article 14 LECrim, which attributes, as a general rule, the investigation of the causes to the Examining Magistrate with competence on the territory where the crime has been committed, or to the Judge of Violence upon the Woman, or the Central Examining Magistrate regarding the crimes which the law determines (art. 14.2 LECrim). But the same article 14 LECrim, at its commencement, admits that may exist exceptions to the attributions of competence which it contains, one of this exceptions is the article 57.2 of the Organic Law of the Judicial Power (in Spanish Ley Orgánica del Poder Judicial, henceforth LOPJ) which assigns to the TS the investigation and the trying of the causes, between others, against the Senators and the Members of the Parliament. To this, we have to add what is established in the art. 4 of the Law of February 9, 1912, according to this article the reports and lawsuits against the Senators and the Members of the Parliament has to brought at TS. 

It looks like we have not only answer to our question, but besides we have made it satisfactorily. However, it is only appearance, because nothing regarding this procedure seems clear. The Second Chamber of the Spanish Supreme Court, has regarded that the exceptions contained in the art. 57.2 LOPJ, must be interpreted in a restrictive manner, only being of application when there are strong evidences of the commission of a crime by a Senator or a Member of the Parliament. In other words, the report or lawsuit must be brought at the Examining Magistrate which has the competence according to general rule of the article 14 LECrim, and only if after being admitted the report or lawsuit, because they contain facts which may be deemed a crime according to the Spanish Criminal Code (in Spanish Código Penal, henceforth CP) and are plausible, there appear during the investigation strong evidences which attribute the commission of a crime to a Senator or Member of the Parlament, it will be justified the intervention of the TS. We can mention these two resolutions of the TS, which sustain these doctrine, the ATS 4141/2009 and the ATS 16459/2021.

The first we have to take into account in order to answer this question, is that a report and a lawsuit are altogether different, although they share the same goal, to communicate to a judicial authority the commission of a crime.

A report is lacking of formalities, and it can be brought at the nearest Public Prosecutor, Examining Magistrate or Police Officer, without being relevant questions of competence (art. 259 and art. 264 LECrim). On the contrary, the lawsuit is covered with formalities, and one of these formalities is the necessity of being brought at the competent Examining Magistrate (art. 272 LECrim). The article 272 LECrim establishes that if the defendant is subjected for any special disposition of the law to a determined tribunal, it will be the competent, and in its last paragraph adds that, the same will happen when there are more than one defendant for the same crime or for two or more connected, and any of them is exceptionally subjected to a Tribunal which is not the competent according to the general rules.

Easy, no? If there are more than one defendant and at least one of them is subjected to the TS, the report can be brought at any Examining Magistrate, Public Prosecutor or Police Officer, and the lawsuit must be brought at the TS according to the rules of the art. 57.2 LOPJ. However, although it may seem the answer not only logic but seemingly with all the legal precepts to is favor, we crash again against the doctrine exposed in the first question. The TS has understood that the exceptions to the general rules of competence of the article 14 LECrim, have to be restrictively interpreted, and therefore, only after strong evidences have been found incriminating a Senator or a Member of the Parliament the competence of the TS will apply. Thus, following the TS´s doctrine, the lawsuit must be brought at the competent Examining Magistrate according the general rules of attribution of competence, and once strong evidences appear against a Senator or a Member of the Parliament, this Examining Magistrate should decline in a motivated manner, its competence in favor of the TS, which will try the Senator/s and/or the Member/s of the Parliament and those who are not subject to its competence by virtue of the article 57.2 LOPJ (art. 272.2 LECrim).

The answer to this question must follow the same path which we have followed in order to answer the two previous questions. Once the report or lawsuit are admitted (art. 269 and art. 313 LECrim) by the Examining Magistrate who has the competence according to the art. 14.2 LECrim, an investigation must be opened and as soon as from this investigation strong evidences arise against a Senator or a Member of the Parliament, the Examining Magistrate must decline, in a motivated manner, its competence in favor of the TS.

This is a key question, for depending on the stage of the Criminal Procedure the authorization will be needed or not.

In order to answer this question, the best is to attend to the literality of the art. 71.2 of the CE, the Senator and Member of the Parliament cannot be charged or committed for trial without the previous authorization of the respective Chamber. The same terms are utilized either by the art. 11 of the Regulations of the Parliament or by the art. 22.1 of the Regulations of the Senate. 

Therefore, the problem which seems needing to be resolved is to define the terms charged and committed for trial. In the ambit of the Ordinary Procedure, the answer is easy, the authorization of the respective Chamber will be necessary to commit for trial, in other words, in order to allow the Examining Magistrate to dictate the committal for trial (art. 384 LECrim), through which for the first time are formally attributed in the Criminal Procedure some facts with criminal appearance to a determined person, is the first resolution which delimits objectively and subjectively the Criminal Procedure.

Out of the ambit of the Ordinary Procedure and already within the Abbreviated Procedure, the question may seem less clear due to the lack of a resolution which assumes the functions of the committal for trial, although it is also true that we find a resolution similar, as the resolution of transformation to the Abbreviated Procedure (art. 779.1.4º) which also attributes criminal facts to a determined person. But in my opinion, this is a belated moment, we cannot wait to the conclusion of the investigation to solicit authorization to the respective Chamber, it must be done earlier, during the formal charging of the art. 775 LECrim, where for the first time is informed the investigated of the criminal facts attributed to it.

Having been surpassed this two events during the investigation of the crime, the charging (art. 775 LECrim) on the Abbreviated Procedure and the committal for trial (art. 384 LECrim) on the Ordinary Procedure, the authorization of the respective chamber will no be necessary, thereby a person who has been committed for trial and has acquired with posteriority the condition of Senator or Member of the Parliament, cannot be beneficiary of the immunity (art. 71.2 LECrim) and the subjection to the TS (art. 71.3 LECrim). This is how have been interpreted the cited legal precepts by the TS, taking into account the goal of the norm, since the immunity protects from the opening of Criminal Procedures conceived in order to alter and disturb the normal work of the legislative chamber, not to impede the outcome of a criminal cause in which the Senator o Member of the Parliament has been already committed for trial, being subjected to the Criminal Procedure from a previous moment to the constitution of the chamber and to its own incorporation as a member of it.

On the other hand, the investigated, who for any cause, has not been yet committed for trial or charged, and becomes Senator or Member of the Parliament before this occurs, must benefit from the immunity and the subjection to the TS of the art. 71 CE.

In order to answer this question we have to attend to the Sentence of the Court of Justice of the European Union of December 19, 2019, case C-502/19. This sentence reply to a question asked by the TS, regarding the provisional prison of Mr. Junqueras Vies, which impeded him to fulfill some requisites of the Spanish law to be regarded, according to the TS, Member of the European Parliament and consequently, beneficiary of the immunity recognized in the Protocol nº7 of the Treaty on the Functioning of the European Union.

It is an important sentence, which summing up recognize the condition of Member of the Parliament to Mr. Junqueras Vies without swearing the CE and besides in its section 96: In the light of the foregoing, it should be stated in reply to the referring court that the existence of the immunity provided for in the second paragraph of Article 9 of the Protocol on the privileges and immunities of the European Union entails that the measure of provisional detention imposed on the person who enjoys that immunity must be lifted, in order to allow that person to travel to the European Parliament and complete the necessary formalities there. That being said, if the competent national court considers that that measure should be maintained after the person concerned acquires the status of Member of the European Parliament, it must as soon as possible request the European Parliament to waive that immunity, on the basis of the third paragraph of Article 9 of that protocol.

From the above we have to understand that, a personal preventive measure can only be imposed by TS upon a Senator or Member of the Parliament after it has obtained the authorization of the respective Chamber, or when the personal preventive measure is essential to the efficacy of the Criminal Procedure, it has to be imposed at the same time that the authorization is asked for to the respective Chamber.

All depends on what is established in their respective autonomy statutes (art. 57. 2 LOPJ), but neither the CE, the LECrim, nor the LOPJ mention something regarding this.

We have to take into account too, that the autonomy statutes may contemplate a subjection different from the TS, and attribute the competence to their respective Superior Tribunals of Justice (art. 73.3 a LOPJ).

The TS has not competence for trying offences, since they are not understood included in the art. 57.2 LOPJ, and the LECrim attributes them to the Examining Magistrates (ATS 6615/2013, ATS 3986/2007, ATS 14430/2007).

In these cases the cause will be dismissed with effects of res judicata regarding the Senator or the Member of the Parliament, but it can continue with respect the rest of the committed for trial (art. 754 LECrim).

When the investigated is a Member of the European Parliament, besides the CE, the LECrim, and the Law of February 9, 1912, we have to attend to what is disposed in the Protocol Nº 7 on the Privileges and Immunities of the European Union, and more concretely to its article 9:

During the sessions of the European Parliament, its Members shall enjoy:

(a)in the territory of their own State, the immunities accorded to members of their parliament;
(b)in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

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.

Víctor López Camacho.

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