Chief Prosecutor of the Constitutional Court, Peter Crespo, goes on vacation with homework done. Among them were preparing the reports on two appeals for amparo presented by the Canarian deputy of United We Can, Alberto Rodriguezdeprived of his seat in October 2021 by a decision of the President of the Cortes, Meritxell Batetafter consultation with Manuel Marchenapresident of the Second Chamber of the Supreme Court, who had also participated in the Chamber that sentenced the parliamentarian (for acts prior to his status as deputy), to a custodial sentence of 1 month and fifteen days in prison, with the accessory penalty of special disqualification for the right to passive suffrage during those 45 days.
The prison sentence was replaced in the Sentence for a 90-day fine with a daily fee of 6 euros (540 euros). In his amparo appeal against the President of the Parliament, Meritxell Batet, the expelled deputy asked the TC for an urgent precautionary suspension “in order to prevent the continuation of enormous damages that are impossible to repair and deprive the present amparo appeal of any meaning.”
The Plenary of the TC admitted for processing both the amparo appeal against Batet’s resolution and the one directed against the sentence that condemned him in the Supreme Court (with a presentation by magistrate Miguel Colmenero, and composed of Marchena, Juan Ramón Berdugo and Vicente Magro ) for a crime against authoritydid not appreciate exceptional urgency and opened a piece to pronounce separately on the precautionary suspension, for which it requested allegations from the Public Prosecutor and Alberto Rodríguez
The chief prosecutor, Crespo, in line with the doctrine of the TC, considered that reinstating the act by way of precautionary suspension of the resolution of the president of the Cortes it was equivalent to advancing the ruling, but in this case also “an explicit substantive statement on essential aspects of the controversial issue & rdquor ;. It goes without saying that in most cases, the opposite, that is, denying an urgent precautionary measure can also be true in terms of “anticipating the ruling & rdquor; it means. But in the case of Alberto Rodríguez, as we anticipated, everything indicates that it will be an exception: the denial of the urgent precautionary measure will not mean rejecting the restitution of the seat.
That denial has not yet occurred. The Plenary must decide on this point.. And everything in this TC is extended until at least September. And as proof that the rejection of the urgent precautionary measure does not have to end in the dismissal of the appeal for amparo, there is the report of the chief prosecutor issued on July 21, which is of interest in the “estimation of the appeal that has to be finalized on granting of amparo requested by Alberto Rodríguez & rdquor;
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…] Y not be removed from it if it is not for legally established causes and 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 be declared… and the actions be 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 on the effects within the scope of its competence of the judgment of the Second Chamber of October 6, 2021 & rdquor ;.
The influence of the Supreme
In his report, the chief prosecutor repeatedly points out the contacts between Batet and Marchena, as well as “the influence & rdquor; that the Supreme could have on the president of the Cortes. “But the content and legal effect of such a decision [de Meritxell Batet] cannot be imputed to any of said judicial resolutions [del Supremo] because the Supreme Court was not competent to adopt it nor did it in fact adopt it, nor did it expressly tell the president of Congress to adopt it (In this, the plaintiff is objectively right when he affirms that the president of Congress went ‘beyond what the sentencing court requested’ & rdquor;).
In roman paladino: Batet went beyond what the Supreme Court formally asked of him, and regarding what he insinuated in his communications with Marchena?
The chief prosecutor records that the secretary general of Congress, the senior lawyer of the Cortes, Carlos Gutierrez Vicen, dedicated himself to “inferring & rdquor; about what the Supreme wanted in his second report -in which he said where I said I say Diego, regarding his first report of October 18- and that he did not have a signature. The verb “infer” and the contacts between the president of the Cortes and the president of the Second Chamber appear constantly throughout the 43 pages. One wonders if Apart from the formal communication between the two, there was also an informal exchange. An exchange that could explain the radical change in a few hours by President Meritxell and immediately afterwards by Secretary General Gutiérrez Vicen.
As regards Rodríguez’s amparo appeal against the judgment of the Second Chamber, the source of the second derivative -the annulment of the seat-, the chief prosecutor’s report denies the amparo.
It is interesting to observe that the report clarifies even more the influence of the Second Chamber in the outcome of the seat.
“The Prosecutor’s Office could not obviously deny without more than the content of that response from the Supreme Court to the request for clarification from the president of Congress [sobre cómo aplicar la sentencia contra Rodríguez] (specifically on the term of imprisonment) could have influenced the subsequent decision to activate the legal consequences of article 6 of the Organic Law of the General Electoral Regime…”,
Here, to suck your thumb, nothing.
Once “normality” was restored in the TC, the rapporteur Mary Louise Balaguer You will have to make your proposal on the urgent precautionary measure and if it is rejected, the appeal for protection must be discussed as such. The deprivation of the seat will be annulled, as sources from the TC reiterate to El Periódico de Catalunya, with precaution or without it. And both one way and the other will also depend on the renewal of the court of guarantees.