The reports of the lawyers of the Constitutional Court (TC)of parliamentary and criminal law, respectively, have reported that the two amparo appeals from deputy Alberto Rodríguez -against his expulsion from the Congress of Deputies by the president Meritxell Batet, and against the conviction of the Second Chamber of the Supreme Court of October 6, 2022- they have grounds to be admitted for processingaccording to information obtained by THE NEWSPAPER. They will now be the rapporteur magistrates –Maria Luis Balaguer and Santiago Martinez-Vares, respectively- who must set their position in the room to which they belong, the first of the TC. The reports do not see, on the other hand, reasons to grant the urgent precautionary measures -restitution to his seat- requested in the appeal against Batet.
The decision of Meritxell Batet, adopted on October 22, 2022, is not motivated, indicates the report prepared by the expert lawyer in parliamentary law of the TC. Unable to find reasoned decision to explain the reasons why Batet understood or perceived that he was obliged to dismiss the deputy. Although the president made a reference to the ruling of the Supreme Court of the aforementioned October 6, 2022 and to the rule of the electoral law on ineligibility-supervening incompatibility, a detailed explanation is lacking.
Another reason is the lack of competition from Meritxell Batet. According to the report, the president does not have the exclusive power as president to dismiss the deputy and since it is a matter of great relevance that affects the right of deputies (‘ius in officium’, powers of public office twice, the own, and that of the 64,000 voters who voted for him in the Canary Islands) because he expelled him from parliament definitively should have transferred the matter to the Congressional Deputy Statute Commission. Through this procedure, Rodríguez had to be heard in a hearing to give him the opportunity to defend himself.
possible helplessness
The decision in no case should be the result – as it happened – of an exclusive relationship between the president of Congress and the Second Chamber of the Supreme Court through its president, Manuel Marchena, who in turn was the president of the sentencing court. The president could therefore produce defenselessness.
And as for the substance of the matter, namely, if the sentence of temporary disqualification for the right to passive suffrage (45 days) could be the reason for the expulsion, the report indicates that the sentence had already been served. And he adds that when it was fulfilled, Rodríguez asked the president for her reinstatement, to which she did not answer.
But even if he answered, Rodríguez was deprived of his position. The aforementioned temporary disqualification, the only sentence to which Rodríguez was sentenced for kicking a policeman, has been fulfilled and his rights, being left out of Congress, were violated.
Regarding the supervening ineligibility, as a cause of incompatibility, the report points out that although the penalty imposed was formally a prison sentence, the law itself transforms it ‘ope legis’ (by legal imperative) into a fine, which had already been paid. According to the electoral law, the causes of ineligibility they become causes of incompatibility while serving the prison sentence. But this prison sentence has never been fulfilled because the Penal Code transforms it ipso facto into a fine.
Legal sources indicate that the admission for processing in the coming weeks will be a fact. “The constitutional importance is evident. The TC has to rule because it is a new issue. It has to solve a constitutional problem on which there is no jurisprudence and secondly because it is not individual, given that it may affect more deputies in the future & rdquor ;, these sources point out to this newspaper.
The report states that does not appreciate reasons to grant the urgent precautionary measure that is requested in the amparo appeal, prepared by the lawyer Gonzalo Boye. The sources consulted point out that if these urgent precautionary measures are agreed (restitution of the seat to Rodríguez) it would be equivalent to the total estimate of the appeal.
Batet could not, in conclusion, decide based on his consultation with the president of the Supreme Court, Marchena, but rather pass the matter to the Commission for the Statute of the Deputy. Precisely, the third secretary of the Congress Table, Gerardo Pisarello, proposed in the internal debate to give intervention to the aforementioned Commission.
The sentence of the Supreme
The report of the lawyer of the criminal section of the Constitutional Court is also favorable to admit for processing the amparo appeal against the judgment of the Second Chamber of the Supreme Courtof the aforementioned October 6, 2021.
There is reason to consider the violation of the presumption of innocence, because there was no evidence that he committed the crime other than the statement of the allegedly attacked policeman.
Also appreciated is questioning the interpretation of the court on the substitution of the prison sentence for a fine. When the prison sentence is less than three months, it does not exist as such according to the Penal Code. And when for reasons of reducing the sentence, as in this case, because a highly qualified mitigating factor of undue delay was found, less than three months, in the application of the sentences, the substitution of the prison sentence for the fine is established. What is alleged by the court that Rodríguez has been imposed is a prison sentence would not respond to reality. Within the regulation itself (not the execution) of the application of penalties, the substitution of the prison sentence for a fine is established.
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The report questions the Supreme Court’s interpretation of including the prison sentence in the sentence and its replacement in the sentence itself with a ninety-day fine (at a daily rate of 6 euros), when the prison sentence should no longer appear.
The two amparo appeals have fallen in the first room of the TC. Now each one of the magistrates must present their criteria before the chamber and it will be the latter that decides whether or not the appeal against Meritxell Batet is invoked in plenary, since it is the president of the Congress of Deputies.