The rejection of the appeals contrary to the clemency measure of the pro-independence leaders in the Supreme Court is consistent with its jurisprudence. Why then did two magistrates vote in favor of its legitimation? How lucky are they in the Constitutional Court?
The fifth section of the Third Chamber (contentious-administrative) of the supreme court has denied the seven appellants, the PP and members of the party in a personal capacity, Vox and members of Ciudadanos, the right to appeal the granting of pardons to the independence leaders Catalans sentenced by the Second Chamber of the Supreme Court. That is to say: it has not even entered the arguments. They did not have the right to present their objections because they have not been able to justify that right due to the alleged damage or injury caused by the pardon. that is called lack of standing.
The fifth section has acted in accordance with what is already a consolidated doctrine through 20 resolutions by mostly supporting the presentation of the rapporteur magistrate Angels Huet. At the beginning of last November, the presentation of the magistrate Pilar Tesso, supported by the majority, refreshed that jurisprudence in the fourth section of the same jurisdiction by rejecting the right of Vox and the PP to appeal the appointment of Dolores Delgado to hold the position of Attorney General of the State. And he accused the parties of an attempt to manipulate justice.
With the decision to dismiss the appeals from the outset, the fifth section ended the phase of judicialization of politics on the subject of pardons. That is to say: the claim to extend the figure of popular action consecrated by the Constitution for the criminal jurisdiction to the contentious-administrative sphere, where it does not exist.
court control
The magistrates, strictly speaking, could not do otherwise in this case. Judicial control over the grace measure is limited to verifying whether the formal requirements are met. Examples: has the Ministry of Justice without his approval Minister council? Has it been issued without having received the mandatory report of the Second Chamber of the Supreme Court? It is granted full pardon when the law prohibits the granting of a full pardon when the report against the Supreme Court is binding? Is it granted without justification?
But the Third Chamber cannot enter into whether the motivation is correct or not. If the Government tells you that it considers politically that it is public interest to pacify Catalonia that these pardons are granted, there is already motivation. You will not like it. Good. But there is.
The reader will be tempted to say: go with the examples. Lack of motivation? Who can it happen to? Well, it has happened. The first completely annulled pardon in Spain (the law dates back to 1870) took place in November 2013. The Government of Mariano Rajoy granted on December 7, 2012 a pardon to a driver (the kamikaze case) who traveled five kilometers in the opposite direction on the AP-7, in the Silla-San Juan section, in Valencia, and killed a 25-year-old . It was in December 2003 and he was sentenced to 13 years in prison.
twisted law
the minister Alberto Ruiz Gallardon, and his Secretary of State, Fernando Roman, prepared the favorable report for pardon. And since it was unjustifiable, they twisted a 1988 law so as not to motivate the measure of grace. The young man’s family, directly affected, appealed to the Third Chamber. And given the relevance of the case, the plenary session of the Third Chamber decided to address the matter. The pardon was annulled and the government was given three months to change the decree. The Government did not insist.
The appealed royal decree indicated only this formula: “Given the pardon file in which the reports of the sentencing court and the prosecutor’s office have been considered, at the proposal of the Minister of Justice and after deliberation by the Council of Ministers, I come to commute”. The plenary session of the Third Chamber concluded that the “only basis of the same does not we can place it in the field of legal logicexcluding arbitrariness”.
The ruling reaffirmed “the untouchable decision granting or denying a pardon” and defined the intervention of the chamber as a “purely external control which must be limited to verifying whether the pardon agreement has a sufficient factual support –the content of which we cannot review– in order, in a process of legal logic, to support the reasons required by the legislator”.
From kamikaze to ‘procés’
What is the relationship of the kamikaze with the resources now outright unacceptable? That, precisely, brings us to the phase of politicization of justice. One of the promoters of the pardon annulled for lack of motivation was, as has been noted, the then Secretary of State for Justice, Fernando Roman, now a magistrate in the fifth section of the Third Chamber that has rejected all seven appeals.
Román has held various positions of discretionary appointment in the General Council of the Judiciary (CGPJ) until he was appointed Secretary of State for Justice between December 2011 and September 2014. Therefore, his relationship with the PP is evident. Well, Roman has voted in favor of the legitimization of the appellants against the pardons. The other magistrate who supported the appeals, Wenceslas Olea, is a member of the CGPJ at the proposal of the PP and president of its Disciplinary Commission. Olea, given the circumstance, he voted against pardoning the kamikaze.
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It will be said that the magistrate Angels Huet, rapporteur on appeals against pardons, has also been a member of the CGPJ at the proposal of the PSOE. But what is relevant is this: his presentation has been consistent with the jurisprudence of the room and not contrary to it for political reasons.
The recurring parties will go, they have announced, to the constitutional Court. But if the Third Chamber has rejected the legitimation because there is no infringement of their rights, will the TC appreciate it? The parties rely on the politicization of the court.