When the cannon shots stop being fired at the Government from the constitutional Court touch the supreme court The relay. This is what has just happened with the decision to admit almost all appeals against pardons granted by the Executive of Pedro Sanchez against nine pro-independence leaders convicted of the crime of sedition. The fifth section of Contentious-Administrative Chamber of the Supreme Court (Third Chamber) has resolved, therefore, exactly the opposite of what the same fifth chamber resolved last January. The mystery: a change already planned in January in the composition of the five magistrates of that section. This, it was known, stimulated the appellants to request reconsideration in appeal (or replacement) – appeals before the magistrates themselves do not usually have a course – knowing in advance that the tortilla would turn around: by 3 to 2 they have won the who lost in January by 3 against 2.
As has been noted, the composition change of the section was already announced. Because every six months, since the reform of the appeal In 2015, the magistrates of the five sections that make up the Third Chamber of the Supreme Court rotate to form the first section, called the Resource Admission Chamber. It is in charge of distributing the issues among all the sections. Some magistrates and some magistrates leave and others replace them, redistributing the presentations at the same time (that is, the magistrates in charge of presenting the project of orders and sentences).
political controversies
On October 19, 2021, the fourth section of the Third Chamber dismissed the appeals of PP and Vox against the appointment of Dolores Delgado as Attorney General of the State by 5 votes against 2. In this sentence, from the beginning of November 2021, whose rapporteur was the magistrate Pilar Tesso, the parties were warned that they should not “settle disputes & rdquor; of a political nature going to court.
The right to appeal requires being directly affected or harmed. It is not about defending “in general” legality. Therefore, the fourth section did not go into the substance of the matter, that is, the challenge to the appointment of Dolores Delgado.
Thus, last January, on the subject of pardons, at the proposal of the rapporteur magistrate, Angels Huet, the fourth section voted 3 to 2, in line with the extensive jurisprudence of the Third Chamber, exposed in the Delgado case, to dismiss the appeals of PP and Vox, and another 61 appeals (7 pardoned by 9). they lacked active legitimation -that is, being directly affected- to appeal. Nor, therefore, did he enter into examining the granting of pardons.
Relays and retirements
But Justice Huet had to leave the fifth section and go to the first. And her substitute would be the magistrate Ines Huerta, which would also inherit the appeal case. White and bottled. The parties, which announced an appeal before the constitutional Courtmade public that they would go earlier in appeal to the fifth section.
One of the magistrates who had supported the majority was also retiring, Segundo Menendezwhich was replaced by Octavio Herrero.
The fact that it was the chronicle of an announced tortilla turn. The other two magistrates who had voted in favor of admitting the appeals in January –Wenceslas Olea and former Justice Secretary Fernando Roman)- With Ines Huerta formed the new majority of 3 against 2.
Judge Huerta had already campaigned in the Third Chamber in favor of the challenge to the appointment of Dolores Delgado passed from the fourth section, where it was considered lost, to the Plenary, where he hoped to have a majority to overturn the designation. For this he signed a petition along with eight other magistrates a petition. But 9 signatures out of 32 were not enough to justify the request.
The form and the background
What is Huerta’s position on form and substance? In 2015, the Third Chamber annulled a pardon due to lack of formality Miguel Angel Ramirez, president of Unión Deportiva Las Palmas and businessman in the security sector, who had been sentenced to three years in prison for illegal works in his chalet in a protected area. The appeal was filed by Ecologists in Action.
Judges Huerta and Diego Córdoba issued a dissenting opinion in which they questioned the right to appeal of the environmentalists. “The recurring association, although its statutory purpose is the defense and renewal of the environment, understood as a generic environmental interest, it does not have the status of being affected/offended by the crime”,
That is to say: it is not enough “general” interest & rdquor; to have the right to appeal.
However, they also pointed out that it would have active legitimation “if he had been a party to the criminal proceeding through popular action, given the public nature of environmental crimes. However, he did not intervene being able to do it & rdquor ;. The confusion is obvious: the popular accusation defends in general the legality while being private prosecution it is precisely to be affected or offended.
government faculty
But, in any case, Huerta maintained regarding the substance: “The pardon is facultative power not likely to be challenged in jurisdiction, except when the procedures established for its adoption are not complied with (or when, in accordance with the factual support notice, grosso modo, an arbitrary exercise of power, proscribed in general). Its concession or denial is an act that is not subject to Administrative Law & rdquor ;.
Where is Inés Huerta going? To change in the next sentence the doctrine of active legitimation at the time that the confirmation of pardons?
Related news
Or, as I searched in the ‘slender case’in this case of pardons with a majority in the fifth section, refer the decision to the Plenary of the Third Chamber with the idea that a majority can overturn the pardons and cause political chaos?
Even if it’s a trip to nowhere, damocles sword on the Government and the political situation confirms, once again, after the pegasus the Spanish judicial and police State.