The judgment of the Second Chamber of the supreme court against him former deputy of Podemos alberto rodriguez and the decision of the president of the Congress of Deputies, Meritxell Batet, to deprive him of his seat on behalf of 64,000 voters in the Canary Islands have achieved their goal. The anticipated dissolution of the Cortes makes his expulsion as a deputy for the entire XIV legislature a reality in application of a sentence that convicted him of an alleged prison sentence of one month and 45 days (non-existent according to article 36.2 of the Penal Code that requires three months for prison sentences) replaced by a 90-day fine.
It will be the full constitutional Court on June 21 and 22, the last one before the start of the electoral campaign on July 23, the one that calibrates, according to sources from the same, to restore, even if symbolically, the seat. Above all, it is about issuing two sentences so that both conducts, that of the Supreme Court and that of the president of the Cortes – which the TC considered of constitutional importance by admitting both appeals for processing – are not repeated.
The Constitutional Court rejected the very precautionary measure for the restitution of the seat presented by Rodríguez’s defense -ipso facto without arguments from the parties- but opened the procedure for the precautionary measure requested for the restitution of the position, which required arguments from the parties.
the magistrate Maria Luisa Balaguer, in charge of the parliamentary amparo appeal, argued that the precautionary measure should be postponed because the merits of the appeal would be resolved without loss of time, that is, if the measure adopted by Batet was unconstitutional. But, at the time, he warned that it was first necessary to rule on the other amparo appeal, directed against the ruling of the Second Chamber of the Supreme Court (composed of the president, Manuel Marchenaand the magistrates Miguel Colmenero, speaker; Juan Ramón Berdugo and Vicente Magro). That appeal had previously entered the TC and was left in the hands of magistrate Santiago Martínez-Vares, who kept the appeal in a drawer and did not request a report from his lawyers.
The chief prosecutor of the TC, Pedro Cresporeported on July 21, 2022 on the precautionary measure in favor of the “reinstatement to the plaintiff [A.Rodríguez] of the integrity of his right and to this end that the nullity of the agreement be declared…[por el cual Batet expulsó a Rodríguez por toda la legislatura]. In roman paladin: return the seat to the deputy.
For the court he presided over Pedro Gonzalez TrevijanoAs we put on record, these appeals for amparo were not relevant. The fact is that they proposed at the beginning of 2022 -Rodríguez was expelled on October 21, 2021- and there were still two years left to finish the legislature the restitution of the seat.
The presentation of Martinez-Vares was adjudicated, when the TC was renewed to the magistrate Maria Luisa Segoviano, who began to study the matter from scratch. And now when the TC chaired by Candid Count-Pumpido was preparing to resolve the matter, the XIV legislature has ended.
Sources consulted indicate, in effect, that the appeal against the judgment of the Second Chamber was a priority. Judge Balaguer conditions, as EL PERIÓDICO has learned, her own conclusions to what is decided on the sentence, even when she questions, without ambiguity, the procedure for Rodríguez’s expulsion, which did not even go through the Commission of the Statute of the Congressional Deputy , a proposal that on October 20 and 21, 2021, was made by the first secretary of the Bureau of Congress, Gerardo Pisarello. Balaguer also referred to the sentence when pointing out that Rodríguez had been sentenced to a disproportionate penaltyalthough said matter had to be raised when the appeal against the sentence was resolved.
It gives every impression, according to the information gathered, that the amparo appeal against the sentence -in which the lawyer Gonzalo Boye raises the “disproportion of the highly unjustified measure & rdquor; – will go precisely this way. The prison sentence of less than three months does not exist because the law says that it has to be replaced by a fine. But the Second Chamber left written in its ruling (” the penalty of 1 month and 15 days in prison, with the accessory of special disqualification for the right to passive suffrage during the time of the sentence. The prison sentence is replaced by the penalty of a 90-day fine with a daily fee of 6 euros& rdquor;). As he argued, he did that because the fine was only valid for the execution of the sentence. But of course, the prison sentence in the ruling carries with it the disqualification of the right to passive suffrage and this determines the loss of the status of deputy (electoral law). Therefore, a decision that is a 45-day fine during which the deputy could not stand, for example, for new elections if the case arises, and that by the mere fact of being included in the ruling as a prison sentence causes the definitive loss of the seat, supposes a constitutional violation. Therefore, clarifying this point has, in effect, constitutional significance for future situations.
deputy status
The discussion, therefore, is whether or not the prison sentence that necessarily has to be replaced by a fine should appear in the sentence. If the prison sentence does not appear in the ruling, if the ruling is only the fine (which it really is) it no longer carries with it the loss of deputy status.
The TC, therefore, could consider that the sentence incurs breach of the principle of proportionality. Because as a consequence of it, a deputy and his voters are deprived of a seat when it comes to a penalty of a fine. A person who has been elected loses the status of deputy due to a fine, punishing him with an absolute disqualification that is only justified for serious crimes.
The circumstances of Rodríguez’s expulsion therefore require clarification. On October 22, 2021, when asked by Batet, the president of the sentencing court, Marchena, replied: “As Your Excellency knows, Law 6/1985, July 1, on the Judiciary, does not include among the functions of the Supreme Court the of advising other constitutional bodies about the terms of execution of an already final sentence”. Here, for example, why the TC has to pronounce itself.
Marchena added: “We ruled out, therefore, any error due to the fact of maintaining the validity of the special disqualification for the exercise of the right of passive suffrage, since this accessory penalty is mandatory in view of article 56.1.2 of the Code Penal.This is required by this precept when a custodial sentence is imposed, as has happened in the present case.The prison sentence is the punitive outcome associated with the conduct that is declared proven, notwithstanding that for the purposes of execution – and only for these exclusive purposes – its replacement has been agreed with a penalty of a fine”.
The Supreme Prosecutor, isabella rodriguez, in turn, maintained when resolving an appeal that it was a penalty of disqualification for a term of ninety days. “No more, no less,” he wrote in his resolution.
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