Dejudicialization and the cracks of monolithism in the Supreme Court, by Ernesto Ekaizer


“What is clear is that the Plenary of the General Council of the Judiciary (CGPJ) of this Thursday has failed to resolve the appointment of the magistrates of the constitutional Court for the upcoming 44th anniversary of the Constitution on December 6,” said Alvaro Cuestaone of the two negotiators of the progressive sector and member of the Permanent Commission, to EL PERIÓDICO DE CATALUNYA. “Despite indicating that the plenary session on December 22 will address the issue again, the conservative sector has not given any guarantee that on that date they will be in a position to have the candidates selected to appoint the magistrates of the Constitutional Court. There are no guarantees of that the CGPJ fulfills its function. It’s that clear. That’s nice words from some,” he added.

However, according to the spokesperson, the right wing failed in turn to “embed an alleged quality control of the activity of the Legislative Branch on the bill to reform the crime of sedition“.

Indeed: The conservative sector lost the vote this Thursday to obtain a public statement rejecting the projected reform and the announcement of a forthcoming report on the matter.

vowels like Jose Maria Maciaspartner of the Cuatrecasas law firm, aspired, according to sources consulted, to give that signal to the magistrates of the General Court of the European Union (TGUE), which this Thursday 24 and Friday 25 will examine in Luxembourg the resources of the European deputies Carlos Puigdemont, Toni Comin Y Clara Ponsati against the European Parliament on their immunity and the request sent by Spain to reactivate the European arrest warrant and be able to try them.

But the blank vote of one of the conservative members and magistrate of the Third Chamber, Wenceslas Oleaand the group change of the vocal Vincent Guilartecaused the defeat, with the consequent particular vote that the vowel will present Nuria Abad and seven accessions. Olea explained that it did not make sense to issue a report that neither the Government nor Parliament have requested and that would surely be returned. Macías tried to persuade him. Unsuccessfully.

This political failure has been added to other facts that ‘prima facie’ outline a flexibility unprecedented up to now. The sixth section of the Third Chamber (for Contentious-Administrative Matters) rejected the request for a very precautionary measure from the magistrate Olea on October 19 to annul the appointment of Rafael Mozoof the progressive sector, as acting president of the CGPJ, after the resignation of Carlos Lemes; This Wednesday the 23rd, he denied the precautionary measure whose claim was the same. Olea and José Luis de Bento, general secretary of the CGPJ, then withdrew their appeals.

These milestones have followed the defeat of Lesmes who tried to take for granted the presidency of the Supreme Court and the CGPJ for the president of the First Chamber (Civil), Francisco Marin Castan.

The trial of the Parliamentary Board

On November 10, the Second Chamber of the Supreme Court annulled the decision of the Superior Court of Justice of Catalonia (TSJC) that sentenced the members of the Parliamentary Committee (Anna Simó, Luis María Corominas, Ramona Barrufet and Luis Guinó) for the crime of disobedience in the processing of parliamentary initiatives related to the independence process that concluded with the referendum of October 1, 2017.

The reporting magistrate, Leopoldo Puente Segura (Madrid, 1964), is one of the latest additions to the Second Chamber or Criminal Chamber. The sentence considered violated the right to an impartial tribunal of the defendants because two of the magistrates of the Catalan TSJ [el presidente Jesús María Barrientos y el magistrado de la Sala Civil y Penal, Carlos Ramos] that made up the Trial Court had already externalized in previous proceedings an explicit stance on issues that later became the essential object of the trial.

Look where, both magistrates had been sections of the court of the TSJC that prosecuted on October 5, 6 and 7 the former president of Parliament roger torrent and the pro-independence members of the Table for the processing of resolutions and the disapproval of the monarchy in the last legislature.

And, precisely, said court issued this past Wednesday, an acquittal of the members of the Board tried for the crime of disobedience (article 410 of the Penal Code of civil disobedience) in the procedures carried out on October 16 and 19, 2019 with the argument that the elements of the type of crime were not met since the rulings issued by the Constitutional Court gave rise to various interpretations, according to the Secretary General of Parliament. The sentence concludes that there was no intent (deliberately committing a crime). Let’s go, a dejudicialization that seems to be consolidating.

The case of Tamara Carrasco

Also in relation to a case in Catalonia, it is worth adding the sentence in the case of the pro-independence activist Tamara Carrasco at the end of last May.

In November 2018, the National Court definitively ruled out the terrorism charge against her and sent the case to Catalonia, while Carrasco remained confined, given that by court order she could not leave the Barcelona town of Viladecans until May 2019. This case, which came to limit Tamara Carrasco’s mobility to the maximum for more than a year ended in acquittal. In October 2020 she was acquitted by a criminal court in Barcelona and in January 2021 the decision was confirmed by the Provincial Court of Barcelona.

But the Prosecutor’s Office appealed the sentence in cassation. At the end of last May, the rapporteur, Angel Hurtadofrom the conservative sector, proposed condemning it, but a majority voted against it. The new speaker, Javier Hernandezappointed to the Supreme Court on September 30, 2020, drafted the acquittal.

Eleven magistrates voted in favour. Hurtado and judges Manuel Marchena, president of the Criminal Chamber, Antonio del Moral, Julián Sánchez Melgar, Pablo Llarena and Vicente Magro.

Related news

And if it leaves Catalonia, it would also be a symptom of the flexibility indicated in the Second Chamber the particular vote of the magistrates Ana Ferrer and Susana Polo in the judgment of the EREfor whom the sentence for the crime of embezzlement against five defendants outside the Employment Ministry (José Antonio Griñán, among them) “does not conform to the law.”

Something moves.


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