The Constitutional Court (TC) can, but does not want to. That is the conclusion of an investigation by EL PERIÓDICO on the state of the issue of appeal filed in January 2022 by the Canarian deputy of United We Can, Alberto Rodríguez, against the deprivation of her seat -twelve months passed last Saturday, October 22nd- by the president of Congress, Meritxell Batet. Then they were missing to finish the current legislature around 26 months; now 14 months left.
Will the magistrates of the TC and Will they resolve the matter in 2024? Can the TC postpone a decision on the urgent precautionary measure in which the expelled deputy urged the reinstatement of his seat? Is it possible to justify in a state of coma -which is devoted to largely resolving procedural matters or matters of interest to the dying conservative majority– The delay in bringing the appeal or at least the urgent precautionary measure to the Plenary?
The decision to expel him from Congress has not only deprived him of his parliamentary work –jus in officium or powers of a public office-, has also been able to violate the fundamental right of political participation of 64,000 voters who voted for the deputy in the Canary Islands
How long does an amparo appeal take?
On January 4, 2022, Rodríguez filed his amparo appeal against Batet’s decision, in which requested an urgent precautionary measure. A conviction of the Second Chamber of the Supreme Court against Rodríguez -with two dissenting individual votes- ruled a 45-day fine and disqualification from appearing for new charges during said period. But the contacts between Batet and the president of the Chamber, Manuel Marchenaderived – after a first frontal opposition from the general secretary of Congress – in the deprivation of his seat for the entire legislature, an unprecedented resolution in Spanish parliamentary lawalso adopted without motivation.
For this reason, in order to create jurisprudence, the Plenary of the TC admitted his appeal for processing, after a favorable report from the expert lawyers in parliamentary law of the court of guarantees.
The rapporteur appointed in this appeal, the magistrate assigned to the progressive sector of the court of guarantees, explained last Monday, October 17, that the processing of amparo appeals – which she considers a “conquest of the democratic and social state of law” – carries her weather.
“You know how long it takes to substantiate an amparo appeal?” he said in relation to information published by EL PERIÓDICO about the one presented by Alberto Rodríguez to restore the seat that was deprived of him in the Congress of Deputies on October 21, 2021.
“You have to transfer the parties. Request a report from the prosecutor. And then do the draft. I am one of the people carrying that draft, as you know. But what happens? That the appeal against the Supreme Court ruling was filed first [que condenó a Rodríguez por atentado contra la autoridad]. Until the ruling on that resource, which is a priority, is voted on, I cannot make mine. If this were told to the media with the same clarity that I am telling you, because this is not a secret, would avoid speculation. Of course I’ll do the draft in due course but I have to wait for the cars to be sent to me, I must wait for all this processing that right now I don’t know how it is. It takes a while to process an amparo appeal, which is important. Unfortunately, it is not possible to adopt quick measures that make the law work for both parties & rdquor ;, she qualified.
When asked why the president of the TC cannot propose to resolve both resources in a coordinated manner, in the same Plenary, Balaguer points out that the TC does not work that way, that the magistrates enjoy independence. “I don’t know the resource, come on, right now I don’t know everything & rdquor;he added.
Problem: that the steps of the procedure that Judge Balaguer has pointed out have already been fulfilled.
The amparo appeal is presented at the beginning of 2022. There is a demand for an urgent precautionary measure so that the seat is restored.
Why is this precautionary measure relevant?
Says the Organic Law of the Constitutional Court. According to its article 56.2 “When the execution of the contested act or sentence causes damage to the appellant that could cause it to lose its purpose, the Chamber ex officio or at the request of the appellant may suspend, in whole or in part, its effects, as long as the suspension does not cause serious disturbance to a constitutionally protected interest, nor to the fundamental rights or freedoms of other people & rdquor ;.
That we are facing the existence of irreparable damage, from which the urgency of the precautionary measure derives, is a fact. The legislature has advanced a year since Rodríguez was deprived of his seat. In October 2021, there were two years and several months left before the end of the legislature. Now there is one year less.
Almost ten months after it was requested, the precautionary measure remains unanswered. Why should the existence of two appeals -one against the sentence and the other against the deprivation of the seat- be an obstacle to not resolve the requested precautionary measure?
Towards the end of the legislature
Beyond the fact that the president could propose to take the presentations of the two appeals to a plenary session – each with its own presentation, the existence of the two appeals, according to judicial sources consulted, is not an impediment to resolving the precautionary measure in the parliamentary appeal .
The question formulated by this chronicler to Judge Balaguer was very direct:
-What are we waiting for? That the legislature ends to resolve the precautionary measure?
-“I am sorry for the situation, I will not be the one to delay it, when the main piece is resolved, I will do mine & rdquor ;, said the magistrate.
But is there a main piece? Sources consulted indicate that although the two appeals have been filed by the same person, This does not imply that there is a “header” resource.– as it is called in the jargon when two resources are dependent on each other – in this case. One is criminal – the one that appeals the sentence – and the other parliamentary-electoral one that goes against the deprivation of the seat.
The calendar that is deduced from the magistrate’s planning is precisely a significant delay. At least in regard to settling the precautionary measure.
Because the magistrate rapporteur in the other amparo appeal -the one directed against the judgment of the Second Chamber of the Supreme Court-, Santiago Martinez-Vareswhose mandate expired on June 12, will be replaced in the coming weeks at the TC.
This will mean that the new magistrate will inherit the position and will require him to study the matter. Then, the new president or president of the TC will have to consider taking it to plenary. And once it is resolved, the other appeal against the deprivation of the seat would be considered.
That is, it could remain unresolved in this legislature.
It would be a catastrophe no matter how attempts are made to justify saying that an appeal has priority over parliamentary law a precautionary measure is requested. Because in this parliamentary law there is an urgent precautionary measure. How would the TC regain credibility after this?
-“I cannot answer this. I wish the sentence was published and then I could explain what I think about it, which is a lot & rdquor ;, said Judge Balaguer.
To all this, how is the processing? The allegations on the merits of the two resources are registered, according to information confirmed by this newspaper, on July 13 and 21, and the allegations in the precautionary piece were raised on May 30.
Related news
And, in addition, the report of the lawyers on the precautionary measure It’s ready for at least a month.
What else is needed?