A question of immunity

THE EURO ZONE ·
Spain itself has the hardest task in the preliminary hearing, and that's to define Juan Carlos's current status

Mark Nayler

Friday, 10 December 2021, 11:48

The nature and extent of former king Juan Carlos's legal immunity is not being disputed, as you might expect, in a Spanish tribunal, but rather in London's Royal Courts of Justice. This week, two eminent barristers presented compelling arguments for and against sovereign immunity, in a harassment case brought against the emeritus monarch by his former lover Corinna Larsen. Both the prosecution and defence positions, however, depend heavily on whether or not Juan Carlos is still, in any sense, a sovereign ("yes" says his defence, "no" says the prosecution). Somewhat awkwardly for the Spanish government and Felipe IV, Juan Carlos's son and the reigning king, the presiding judge in London has asked Spain to provide the answer to that question.

Defending Spain's former king, Daniel Bethlehem QC made two fundamental points. First, that any allegations concerning events that occurred prior to 2014, when his client abdicated in favour of Felipe IV, cannot be contested in court because Juan Carlos had immunity during his reign. Secondly, Bethlehem argued that Juan Carlos is still "an essential part of the Constitutional fabric of Spain'' and that, as such, his immunity remained valid after he stepped down as king. Larsen's allegations, he claimed, concern "quintessentially public acts because of who the person is" and thus fall under the umbrella of immunity. In short: the king certainly denies wrongdoing in this context, but in any case he can do no wrong.

Prosecuting barrister James Lewis QC, representing Larsen, disputed both points. Lewis argued that his client's allegations concerned "quintessentially private" acts (harassment, spying, threats made against her and her children), the implication being that they may fall outside of a conception of immunity centered on Juan Carlos's PUBLIC role and duties. In any case, he maintained, it's borderline absurd to maintain that Juan Carlos is still a sovereign or figurehead: not only did he abdicate in 2014, but he also announced his official retirement from public life in May 2019.

Bethlehem's first argument seems to be his strongest. Spain's 1978 Constitution explicitly states that "the person of the King is inviolable" - i.e. no distinction is drawn between public and private acts: the king himself has immunity, regardless of what he does, whether in his role as monarch or in his personal life. It's tougher to argue, though, that Juan Carlos had any such inviolability after he abdicated, even though Constitutional ambiguities on this point were acknowledged at the time. "The person of the King" may be immune, but Juan Carlos has been no such person for over seven years now.

Spain itself has the hardest task in this preliminary hearing, and that's to define Juan Carlos's current status. Depending on how the government and the royal household respond to the London court's request for clarity, they will either reaffirm the former monarch's centrality to the Spanish state, or push him further into the shadows.

A question of immunity

THE EURO ZONE · Spain itself has the hardest task in the preliminary hearing, and that's to define Juan Carlos's current status

THE EURO ZONE ·
Spain itself has the hardest task in the preliminary hearing, and that's to define Juan Carlos's current status