A change in the composition of the section that will see the appeal of PP and Vox in the Third Chamber of the Supreme Court feeds the right-wing campaign on the admission of the challenges
Every six months, since the reform of the appeal (2015), the magistrates of the five sections of the Third Chamber (contentious-administrative) of the supreme court they rotate to form the First Section, called the Resource Admission Room, which is in charge of distributing the issues between the different sections. This implies the departure of some magistrates from their respective sections and the entry of others who replace them, and, likewise, the redistribution of papers.
After the rejection of all appeals to the convicted independence leaders (seven for each of the nine independence leaders convicted in the trial of the ‘procés’) last week by the magistrates of the fifth section of the aforementioned Third Chamber, the rapporteur magistrate, Angels Huet, as planned, has left his section to join the new Admissions Room for a period of six months. She is replaced by the magistrate Ines Huerta.
Although, as is often said, the ink has not dried on the sentences that reject all the appeals against the pardons granted by the Government, the judicial posturing, the test of the nine of the circle judicialization of politics-politicization of justice. And it is that, although the ruling by which the fifth section has denied the political parties and leaders their right to appeal is known, the corresponding sentences are in the process of being drafted together with the two individual votes opposites.
Constitutional Path
The defeated parties immediately announced a new appeal, this time before the constitutional Court. But now, when the cars are transferred, they are going to present a appeal before the same section that has denied them the right. Precisely because of the change in the composition of the court that is going to resolve it. Elementary! But, as Sherlock Holmes also said, “there is nothing more misleading than an obvious fact.”
Let’s see.
The fifth section, by denying the parties and leaders their right to appeal (active legitimation), has it modified an already consolidated doctrine? The answer is blunt: on the occasion of resolving the appeals filed by Vox and by the PP against the royal decree of appointment as attorney general of the State of Dolores Delgado, rejected them, at the beginning of last November, for lack of standing of the appellants.
And he didn’t just dismiss them out of hand. In addition, as a warning, he stated: ‘politicians, we do not want you to continue manipulating us’. That is to say: by denying the right to appeal pardons, the fifth section applied its jurisprudence last week to the letter.
Can you change the sentence?
The substitution in the fifth section of the Third Chamber of Angels Huet, from the so-called progressive sector, for Ines Huerta, from the so-called conservative sector, represents a change in the profile of the majority of the court in charge. Of the three magistrates who knocked down the appeals against the other two, three conservatives will go against two progressives.
Will it change, therefore, the meaning of the sentence? In the case of the resources of Vox and PP against the appointment of the State Attorney General, the conservative justices they were a minority in the fourth section. Therefore, they did not meet the requirement of being a majority, as required by both the organic law of the Judiciary (LOPJ) and the regulatory law of the Contentious Administrative Jurisdiction (LJCA), for the matter to be referred to the Plenary of the Third Chamber.
But they tried, to get it, that the president of the whole room, Cesar Toulouse, will take it to plenary session, given that it can do so ex officio. For this they collected signatures. But they only obtained 9 out of 32 magistrates of the Third Chamber. Ines Huerta was among the signers.
The matter remained in the fourth section. And the majority supported the presentation of the magistrate Pilar Tesso to deny legitimacy to Vox and PP to appeal the appointment. the magistrate Ines Huerta has to his credit a relevant position on the right to appeal or active legitimation. And it is precisely in a matter of pardon.
Affected or offended
The Supreme annulled in June 2015, for a shape defect, the pardon that the PP government granted in 2013 to Miguel Angel Ramirez, businessman in the security sector and president of UD Las Palmas, sentenced to three years in prison for carrying out illegal works in his chalet in a protected area, in an appeal filed by Ecologists in Action.
Judge Huerta and her colleague Diego Cordoba they made a dissenting opinion opposing the right to appeal. “The recurring association, although its statutory purpose is ‘the defense and conservation of the environment’, understood as a generic environmental interest, does not have the status of affected/offended by the crime“.
But pay attention, he added: “For what I would only have active legitimation to challenge the pardon decision if he had been a party to the criminal proceeding by exercising the people’s action, given the public nature of environmental crimes. However, he did not intervene being able to do so.”
However, being a popular accusation confirms that the party condition is not met “affected/offended by the crime“. Precisely, Vox, unlike the other appellants, claims to have been popular accusation in the trial of the ‘procés’ to justify their standing to appeal. Therefore, if Judge Huerta aligns herself with the other two magistrates who have already voted in favor of Vox’s right to appeal, they would turn the tables on the previous question of legitimacy.
power issue
“Can a section change the jurisprudential doctrine through a precedent like this that affects not only pardons, but also matters that go to all sections of the Third Chamber?” asks a judicial source. And he replies: “A modification of this caliber should be resolved by the full”.
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But, apart from the legitimation, the substantive debate would remain. And according to the magistrate Ines Huerta, the pardon is “a facultative power not likely to be fought in the jurisdictional venue, except when the procedures established for its adoption are not complied with (or when, according to the tactical support, it is noticed, grosso modo, a arbitrary exercise of power, generally prohibited). Its granting or denial is an act that is not subject to Administrative Law.”
But, even if in the end the issue of legitimation was a trip to nowhere and the decree of pardons came out unscathed, the prolongation of this issue would allow the right to keep the sword of Damocles over the Government. And that, precisely that, is what can be called the Spanish judicial status.