The Spanish State will appear before the Belgian justice system in defense of the sovereignty and jurisdictional immunity of the Spanish courts if, when accepting the legal action brought against the Spanish Supreme Court judge, Pablo Llarena, by the former president and four former councillors of the Regional Government of Catalonia, the Belgian judicial authority even mentions in its arguments facts or information from the ongoing criminal proceedings against these individuals in Spain.
The criminal proceedings – known as el procès – being overseen by the defendant judge are solely and exclusively subject to Spanish jurisdiction. For this reason, if they are jeopardized by the actions of the trial court in Brussels handling this legal action, the Government of Spain will take proportional and appropriate measures to protect the jurisdictional immunity of the Kingdom of Spain and its sovereign power over the exercise of jurisdiction.
The legal action brought in Brussels also includes references to private statements and quotes made by Judge Pablo Llarena regarding which the Government of Spain cannot act because that would imply defending an individual regarding statements of a private nature unrelated to their position.
However, any mention of the jurisdictional role of the judge by the Belgian judicial authority would represent a breach of the principle of actum iure imperii, by virtue of which no legal action can be brought against a foreign State and a foreign State cannot be subject to the jurisdiction of the courts of another country.
Spanish Law 52/97, on Legal Assistance to the State and Public Institutions, and its implementing regulations, do not provide for intervention by the State Legal Service before courts and ordinary tribunals of foreign countries. Hence, if developments in the Belgian case were to make it advisable for the Spanish State to appear in court, the Ministry of Justice will hire a private law firm to defend its sovereignty and jurisdictional immunity.
Such an appearance is necessary because it is the first essential step before the pertinent steps could be taken before the European Court of Justice or the International Court of Justice in The Hague.
Article 5 of the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property states that “a State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention”.