The judicial resolution -auto- that changes the tradition of the Contentious-Administrative Chamber, the Third Chamber of the Supreme Court, on who is eligible and who is not to file an appeal (technically, “active legitimation & rdquor;), in this case, on the partial pardons granted by the government of Pedro Sánchez against nine pro-independence leaders convicted of the crime of sedition in October 2019, has been adopted without being adjudicated the matter to the plenary session of the Third Chamber of thirty magistrates.
Although the resolution consists of 36 pages, in which the position of the appellants against the order that was dismissed last January is summarized, the decision itself by a majority of three magistrates against two only occupies three pages and four lines. The particular vote that, in turn, defends the appealed decision spreads over 12 folios and 18 lines. Those three pages and four lines are intended to resolve what the majority order qualifies as “legitimation as one of the darkest concepts of procedural law to the point that it becomes more confusing the more that is written about it & rdquor ;.
This chamber, the fifth, of magistrates resolved last January that since they did not have the quality of direct victims (none of the appellants Vox, PP, Ciudadanos and others) they lacked the right to appeal the government decision and, therefore, appeals were dismissed, without going to the bottom of the matter, namely, the control over the formal normative steps taken by the Executive. But a temporary change in the magistrate who was then rapporteur (Ángeles Huet) and the retirement of another (Segundo Menéndez) caused a change in majorities. Judge Inés Huerta, Huet’s replacement, joined the other two judges, José Luis Requero and Wenceslao Olea, to now give victory to those who remained in a minority of two against three in January.
From the outset, the magistrates of the new occasional majority, in Olea’s presentation, admit a central point: “The jurisprudence of this Third Chamber of the Supreme Court has interpreted the active legitimation in the sense that the order that is challenged here meticulously collects & rdquor ;. In Roman paladino: the resolution is “thoroughly & rdquor; consistent with the jurisprudence of the Third Chamber.
What, then, is wrong with that resolution and with the jurisprudence? The car doesn’t say. In her brief comments, the legal reasoning is replaced by the roller, we are now one more and you are one less since the one who went to Seville lost her chair and we changed the criteria from five months ago. “The problem with legitimation is its casuistic nature. But it does not allow an undifferentiated response for all cases, and it is necessary to examine the specific legitimate interest… In the case examined we are faced with partial pardons for very unique crimes: against society that protect objective legal rights. This singularity supposes an added difficulty when it comes to specifying who holds that necessary active legitimacy closely related to the protected legal interest -and its owners- for the pardoned crimes without it being a ‘condition sine qua non’ that the legitimized appear identified in the sentence. criminal & rdquor ;, indicates the car.
A “narrow” margin to revoke pardons
Because, he explains, “apart from the undesirable effect of leaving an area immune to judicial control, no matter how narrow it may be in cases of pardon, it is that the pardon, although it must necessarily be based on the conviction penal, it is an independent act, of the Government, reviewable in contentious headquarters, for which the budget of the active legitimation is subject to administrative law & rdquor ;. He recognizes, therefore, that the margin to revoke pardons as such is “narrow & rdquor ;. That’s as far as we could go. It is about checking if they have been motivated, for example.
And, likewise, it recognizes de facto that a change of criteria is problematic. “The complex profiles of active legitimation in this type of crime, together with the repeated discrepancy within the section, shows that there is no clarity and firmness required for a decision of such depth in this procedure (and this regardless of which, at the end and in the process of sentencing, can be adopted) & rdquor ;. But instead, in any case, of taking the matter to the plenary – taking into account that the change affects far beyond the pardons to all the activity of the Chamber– Resolves the modification of the jurisprudence, taking advantage of the fact that the one that left for Seville lost its seat, which is now occupied by the magistrate that allows the new majority to be formed. “For all these reasons and in order to guarantee the maximum right to effective judicial protection of the appellants, the appeal for reconsideration is upheld & rdquor ;.
The particular vote of the magistrates Octavio Juan Herrero and Ángel Ramón Arozamena does refute the ‘ukase’ of the majority by recalling that the appellants admit not being a direct offended party and that the clemency law allows them to be granted to those convicted of sedition and rebellion, and even when they are repeat offenders (1988 law). “It’s embarrassing. As this is very difficult, we have to study it better, which for a car is too much trouble. The consequence is that instead of dedicating a resolution only to the right to appeal, we will do so in the sentence on whether the granting of pardons was made in accordance with the regulations. Because they say that they will first resolve the lawsuit in order to know who could appeal & rdquor ;, a tax source tells this newspaper. “It’s from Cantinflas & rdquor;ironically
A “kidnapping” of the CGPJ that affects all institutions
The “kidnapping” by the PP of the General Council of the Judiciary (CGPJ) affects all institutions. If they worked with an impartial president, the sensible decision would have been taken to say: “Listen, even though one of the judges, the reporting judge, is temporarily assigned to the admission room, she is inside the same court. Therefore, she is conferred the authorization as rapporteur magistrate to resolve the appeal for reconsideration because there is no inconvenience for her to intervene, it is a bureaucratic issue & rdquor ;, points out a judicial source.
This source wonders what the CGPJ is for: “But when you have a court in which the three magistrates have been supported by Carlos Lesmes, president of the CGPJ; one, Requero, from the extreme right; the other, Fernando Román, who was Secretary of State for Justice under Rajoy, and the third, Inés Huerta, one of Lesmes’s first appointments in the Third Chamber, in January 2014, one realizes the importance of a council with a conservative majority, which, moreover, has been perpetuated”.
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There is a point that can be recognized in the car of the supervening majority, when it affirms when speaking of the matter of the legitimation “which becomes more confusing the more that is written about it”. Because Inés Huerta, for example, maintained in her dissenting opinion on the right to appeal the pardon granted in 2013 to the president of the Club Unión Deportiva Las Palmas, Miguel Ángel Ramírez, that “the appellant association, although its statutory purpose is ‘the defense and conservation of the environment’, understood as a generic environmental interest, does not have the condition of being affected/offended by the crime”.
And on the underlying issue of the pardon itself, he pointed out that the pardon is “a facultative faculty not susceptible to be combated in jurisdictional venue, except when the procedures established for its adoption are not complied with (or when, in accordance with the tactical support, an arbitrary exercise of power is observed, generally prohibited). Its granting or denial is an act that is not subject to Administrative Law.”