Dead the dog, the rabies is gone? Or legally translated into the ‘Alberto Rodríguez case‘, once annulled by the Constitutional Court Second Chamber of the Supreme Court the sentence to a prison sentence of 45 days – non-existent since according to the Penal Code the prison sentence requires three months – imposed by the Second Chamber of the Supreme Courtis the appeal for parliamentary protection that requested to annul the deprivation of the seat by the president without purpose? Meritxell Batet, not the Congress of Deputies as such? Well no.
That route – the loss of the object – would have been very simple. But the judge’s presentation Maria Luisa Balagueraccording to the information collected by EL PERIÓDICO, considers that the resource has not been emptied of its content and that it should be admitted.
According to his presentation, the president of the Congress of Deputies, Meritxell Batetviolated the right of political participation (article 23 of the Constitution) by depriving him of his seat on October 22, 2021, after consulting with the president of the Second Chamber of the Supreme Court, Manuel Marchena. For this reason, he proposes to declare the nullity of the agreement of the president of Congress of October 22, 2021 that expelled Rodríguez for the entire legislature.
Therefore, the TC, by approving the presentation next week, will have distributed the weight of the exceptional decision adopted on October 21 and 22, 2021 on the shoulders of the two institutions represented in the decision by its two personalities. : Marchena and Batet. It is true that while the first had the support of the chamber of magistrates chaired by him, the second did so against an initial decision of the Congress Board and against a report from the lawyers, a report that later, in the atmosphere of pressure existing, was modified verbally to complete the expulsion.
Judge Balaguer had prepared, as this newspaper has learned, a first draft of a presentation at the beginning of 2022 in which she highlighted the lack of motivation of President Batet, an aspect for which Rodríguez’s appeal for protection prepared by lawyer Gonzalo Boyé, Rodríguez’s appeal for protection demanded the annulment of the agreement of the president of Congress.
But in light of the ruling handed down last week by the TC, annulling the custodial sentence that was recorded in the ruling of the Supreme Court, the implicit legal argument with which the Second Chamber of the Supreme Court “incited” has disappeared. ” or “induced”: the “surgent incompatibility” or “surgent ineligibility” to serve as a deputy as a result of saying that he was sentenced to prison when it had become, by rule of law, a fine.
Judge Balaguer estimates that after the ruling of the TC on January 16, the legal argument of supervening incompatibility or ineligibility – Organic Law of Electoral Regime or LOREG – in which Batet decided on his own to expel Rodríguez, the TC is in a position to provide protection because his right to carry out his duties has been violated as established in article 23.2 of the Constitution. The presentation, therefore, establishes the violation of a fundamental right and at the same time annuls the Batet agreement.
The departure of mus Marchena-Batet
In addition to not choosing the easy or deferential route, in this case with Batet, Judge Balaguer develops in the background the complete sequence of events, an entire novel with the implicit play of its main protagonists. Most of the text, precisely, contains the facts leading to the outcome. It is as if Balaguer was saying: the facts speak for themselves. The narration is precise and complete.
Batet was subjected, as can be seen from the story, to two forces that acted on her in unison. On the one hand, Vox and the Popular Party, which urged Rodríguez’s expulsion from the first moment, brandishing the specter of a possible complaint or action against her by the Second Chamber if she “failed to comply” – according to the lawyers’ first opinion there was no nothing to comply with other than to indicate to the Supreme Court when the 45-day disqualification sentence for passive suffrage had begun to run; and on the other hand, Marchena, following the consultation that she herself decided to ask him before ‘executing’ Rodríguez.
The decision of the TC that partially annulled the Supreme Court ruling – in the fundamental aspect of the prison sentence – has revealed that the lawyers of Congress – represented by the then head Carlos Gutiérrez Vicen– They were right and no expulsion measure followed. The prosecutor of the Constitutional Court, Pedro Crespospoke in the sense that Balaguer now proposes even though the Supreme Court ruling had not been annulled.
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In May 2022, Crespo noted: The chief prosecutor of the TC concludes that the TC must resolve: 1) “The declaration that his fundamental right recognized in article 23.2 of the Constitution has been violated [derecho a acceder en condiciones de igualdad a las funciones y cargos públicos…] and not be removed from it except for reasons and legally established procedures in relation to 23.1 [ derecho de los ciudadanos a participar en los asuntos públicos] and 2) The restoration to the plaintiff of the integrity of his right and for this purpose that the nullity of the agreement is declared… and the actions are taken back to the moment prior to said decision so that the competent bodies of the Congress of Deputies with full “respect for the fundamental right violated regarding the effects within the scope of its jurisdiction of the ruling of the Second Chamber of October 6, 2021.”
Crespo was very clear: “In this, the plaintiff is objectively right when he states that the president of Congress went ‘beyond what the sentencing court requested of her.'” The resolution of the appeals, presented in early 2022, has taken so long that political circumstances no longer allow more than a symbolic victory for the rule of law. Rodríguez may, for his part, initiate a claim against the Administration for reparation of the damage caused. These events, at least, cannot be repeated.