King Juan Carlos I, in his judicial labyrinth in the United Kingdom, by Ernesto Ekaizer

In the English legal system, the Court of Appeal of the High Court of Justice of England and Wales (High Court of Justice) has to give the green light to appealin this case, the resolution of Judge Nicklin who on March 24 refused to grant State immunity to Juan Carlos I.

Normally, there are three judges in the civil division of the Queen’s Bench -although there are cases in which only two intervene- who first carry out a study of the appeal request and can decide based on the document presented or call a hearing. If it is denied based on the writing, the appealing party has the right to request an oral hearing to discuss the reasons for the rejection..

According to the rules of civil procedure, to obtain authorization, the appeal must present “real chances of success or another compelling reason why the appeal should be heard”, such as errors or legal loopholes in the appealed resolution or sentence. There is also the possibility of filing a second appeal against a first rejection by the Court if the judges appreciate a transcendence “of an important principle or practice.”

Now, what happens if the Court rejects again? In most cases there is the possibility to apply again for leave to appeal to the Supreme Court. If not granted, the decision of the Court of Appeal is the final decision.

The question of immunity has not been the only previous question raised by the defense of Juan Carlos I. There are three others: the way (by WhatsApp) in which Juan Carlos I was informed of the civil lawsuit; the fit of the acts of harassment denounced by Corinna zu Sayn-Wittgenstein in the English law of 1997; and the plea of ​​jurisdiction -‘non convenient’- in favor of the Spanish jurisdiction.

The path of the appeals can be a resource to delay sine die the beginning of what could be called the instruction of the claim itself before trial. For this reason, Judge Nicklin warned last Tuesday that he be kept informed about the progress of the appeal. He doesn’t want to delay the start of the procedure any longer. The defense has 21 days to appeal and announced that if they get authorization they will present the appeal before the Court of Appeals before May 30.

“What has caught my attention is that the defense of Juan Carlos I did not present any technical report on the issue of immunity from an expert in constitutional law in Spain. The reports have been of a criminal nature. However, the constitutional implication is very relevant”, explains León Fernando del Canto, a Spanish lawyer who acts as a ‘barrister’ (lawyers who present cases in UK courts) in London, owner of the firm Del Canto Chambers.

In a conference given in the Seychelles Islands, the archipelago of 115 islands in the Indian Ocean, northwest of Madagascar, a member republic of the Commonwealth (Commonwealth linked by historical ties with the United Kingdom) since 1976, Nicklin, after receiving the honorary distinction The Queen’s Counsel, Queen’s Counsel (QC), gave a lecture in which, precisely, he highlighted the fact that nations such as Seychelles, Mauritius and Reunion have a rich constitutional history inherited from France and the United Kingdom.

“You in Seychelles, of course, are blessed by a Constitution. I say blessed because some in Britain will view it with envy. Because it is a remarkable fact that a country that has bequeathed constitutions to newly independent countries that have left the Commonwealth, does not have a constitution of its own. Traditionally, when one talks about protecting fundamental rights, one looks for a constitutional document that embodies the basic values ​​of a nation. A text that is beyond the scope of government meddling of the day…”

And in his ruling against the immunity of Juan Carlos I on March 24, Judge Nicklin – appointed to the high court in 2017- it refers to the figure of the king emeritus as an honorary title, without constitutional rank.

In reality, perhaps this gap is the reason that explains the absence of a constitutional expert report on Juan Carlos I. Nor, as the judge pointed out in the hearings last December and in his sentence, was the certificate that English law of State Immunity of 1978 requires, on the status of the king emeritus in relation to the House of His Majesty King Felipe VI.

Judge Nicklin rejected -although he did not consider it a fundamental fact- that Juan Carlos I was cast as a member of the Casa Real (Royal household) institution for being an indisputable member of the royal family, that is, father of Felipe VI.

The debates in the London court that have led to the rejection of the personal and functional immunity of Juan Carlos I reveal the contradictions in Spanish legislation. In 2014, on the occasion of the abdication, the government of Mariano Rajoy approved organic law 4/2014 by which it consecrated the appraisal in the civil and criminal chambers of the Supreme Court of the Queen, consort or the consort of the Queen, the princess or Prince of Asturias and his consort, as well as the King or Queen who has abdicated and his consort”.

If article 56.3 of the Constitution declares that “the person of the King is inviolable and is not subject to responsibility” without further explanation, the explanatory statement of the 2014 law takes that inviolability to its extreme. Instead of weakening it, it hardens it.

Why? Why does it state that “all acts carried out by the King or Queen during the time in which they hold the head of State, whatever their nature, are protected by inviolability and are exempt from liability”. Attention: “whatever its nature”.

As Judge Nicklin says in his sentence, if Juan Carlos I enters a London jewelry store and steals a diamond ring, it is not possible that he will be immune from criminal or civil proceedings.

But it is also that, in 2015, the Rajoy government passed a law according to which foreign former heads of state in Spain “will continue to enjoy criminal immunity only in relation to acts carried out during their mandate, in the exercise of their functions. officers”, a criterion that also applies to “civilian immunity”.

That is to say: those acts that are not part of the function of a head of state (functional immunity) do not give him immunity. “Once their mandate has ended” -says the law- “the former heads of state will not be able to assert their immunity before the Spanish jurisdictional bodies in the case of actions related to acts not carried out in the exercise of their official functions during their mandate” .

The issue of immunity is no longer taboo. Now, Spain needs to take charge.