He Plenary session of the Constitutional Court scheduled for this Tuesday, January 16, it will give protection – scandalously late – to the former deputy Alberto Rodríguez (former Podemos, currently in Sumar) –expelled from the Congress of Deputies on October 22, 2021– in alleged compliance with a sentence of the Supreme Court that he violated, according to the presentation that the magistrate submits this Tuesday Maria Luis Segoviano, the principle of legality of the then deputy. Rodríguez will now be able to file a lawsuit for reparation of his violated right and recover his wages.
The appeal for protection against the ruling of the court Supreme Court that prosecuted Rodríguez for an alleged attack against State institutions – he was accused and convicted of kicking a police officer in a demonstration that occurred nine years before he became a deputy – and the appeal for parliamentary protection against the decision of Meritxell Batetthen president of the Congress of Deputies, were presented in early 2022.
The extraordinary delay in resolving these appeals, despite the fact that in the second appeal (urgent) precautionary measures were requested, illustrates the crisis that the TC went through, as a result of the blockade implemented by the president of the Popular Party, Alberto Núñez Feijóoan operation that was deactivated by the progressive sector of the General Council of the Judiciary (CGPJ) in December 2022.
The appeal for protection requested the annulment of the sentence for six alleged violations of rights: to the impartial judge; A presumption of innocence; of the principle of legality; to the principle of proportionality; of the right of assembly and demonstration and, finally, the right of political representation (article 23 of the Constitution).
The sentence prepared by the judge Segovian considers the relevant principle of legality of the six. This is a resounding blow because, in Roman paladin, it means that the courtroom that tried and convicted Rodríguez – chaired by the president of the Second Chamber, Manuel Marchena— overbraking. That is to say; It went beyond what is required in the text of the law. Criminal legality is the limit to the punitive capacity of the State, a limit that the sentence and ruling of the Supreme Court has not respected. Violating this principle also implies making a clean slate of predictability.
In the sentence, the Supreme Court sentenced Rodríguez to 1 month and 15 days in prison with the accessory penalty of special disqualification from the right to passive suffrage during the time of the sentence. The prison sentence was replaced by a 45-day disqualification and a 90-day fine. But apart from putting it in the sentence, the court recorded in the ruling – the operative part – that “the prison sentence is replaced by a 45-day disqualification.”
When leaving this record to the court, one small detail was not missed: the formula “prison sentence”, thus stated, gives rise to the application of the electoral law that establishes a cause of “supervening incompatibility.” Ergo; Rodríguez would be left without a seat. The Supreme Court “incited” or “insinuated.” But he didn’t expressly ask for it.
Despite the late, but resounding setback, which means violating the principle of legalitythe sentence that will be approved today saves all the other points on which the Supreme Court’s verdict was questioned.
Sacrosanct word of the policeman
And especially, the second point of the appeal: the violation of the fundamental right to the presumption of innocence. Because Rodríguez was convicted with the solitary testimony of the police officer; no other possible witnesses were cited.
Proof of the fragility of the evidence is the existence of two dissenting votes on the seven members of the court.
The dissenting judges Susana Polo and Leopoldo Puente pointed out: “The word of a single witness, without any other additional evidence, can be sufficient evidence in the abstract to reach subjective conviction. However, the objectively rational foundation of the sentence makes it impossible to base a conviction on mere ‘belief’ in the word of the witness as a blind act of faith”.
The TC could have taken advantage of Rodríguez’s appeal to review the “single witness” and “word against word” doctrine, which gives police officers a monopoly on the truth. However, he has shied away from this possibility, defending the sentence. It was already anticipated by some constitutionalists that the TC would not innovate. “The sacrosanct word of the police is a minefield,” a source told this newspaper.
And look, this lack of “objectively rational basis” for the sentence, noted by judges Polo and Puente, also extends to the ruling in which a prison sentence is recorded – non-existent in the penal code, which requires three months, and its exchange for a fine already paid– to bring down the guillotine of the “supervening incompatibility” that was to deprive Rodríguez and the 64,000 Canarian voters of their seats.
Batet & Marchena
However, what made the event more spectacular was the departure of mus between the president of Congress, Batet, and the president of the Second Chamber. The first, supported by the Board based on a broad opinion of the chamber’s lawyers – who did not see beyond what the sentence stated, without paying attention to the “incitement” or “insinuation” of the Supreme Court to expel Rodríguez– consulted with Marchena, who said that the Supreme Court was not there to give advice, but, instead, to enlighten him, he did him the favor of attaching a resolution in which Rodríguez requested the annulment of the execution of the sentence and The Supreme Court denied it.
If Marchena maintained the pressure, on the other side, in the Congress Table, and on social networks, Vox warned that if Batet did not expel Rodríguez the same thing would happen to the president of the Parliament, Carme Forcadell. The president of Congress did not even ask the opinion of the Commission on the Statute of the Deputy, as suggested, to decide. By herself she backed down, the lawyers issued a verbal report ‘where I said I say, I say Diego’ and ‘here peace and then glory’. The president informed the Central Electoral Board that she gave the go-ahead to the deputy to replace Rodríguez. He was expelled on October 22, 2021 when the legislature was to last until the end of 2023.
On October 24, the presentation by María Luisa Segoviano It was brought for the first time to the Plenary Session of the TC with the proposal to consider the appeal on another point other than the principle of legality. It was about cushioning the blow by admitting point 4 of the appeal: lack of proportionality.
The conservative magistrates ruled to dismiss the appeal. But here the progressive sector did not support the presentation either. Because Rodríguez’s expulsion was the work of Batet. The Supreme had thrown the stone and hidden his hand. The confusion that a presentation like the proposal opened was not difficult to foresee. Because it was mixing proportionality between a decision that the Supreme Court had not adopted and that was not criminal in nature – depriving Rodríguez of his seat – and the de facto decision adopted by the president of Congress. Surviving the prison sentence of one month and 15 days in the ruling, they said, was an “unforeseeable interpretation”, one of the arguments of the lawyer’s appeal. Gonzalo Boyé. There was the seed of irrationality that germinated in Batet’s hands.
And we come to the pending appeal. The deference, so to speak, of dispatching the appeal with the criterion of disproportionality was abandoned as incoherent and turning a blind eye to the violation of legality.
What will happen to the parliamentary appeal against Batet? A new attempt at “deference” by the TC would be to affirm that it has lost its object, that the dog died and the rabies ended, after overturning the sentence that under pressure she did not dare to resist and gave in. But the appeal already has a presentation with the pen of magistrate María Luisa Balaguer, who maintains that Batet used a de facto route without entrusting himself to the Congressional Statute Commission.
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It is never again what should guide the TC. It is about preventing a situation as serious for parliamentary democracy as the one that occurred on October 21 and 22, 2021 from being repeated. And to this end, the conduct of Congress, expressed by its president, must not go unpunished. The parliamentary resource should not be turned into a ball and thrown into the trash can.
Rodríguez will now be able to present his claim for compensation for the damage caused by the violation of the principle of legality by justice. And also demand payment of wages lost since October 22, 2021. The damages have been caused jointly by the judicial branch and the legislative branch.