The Constitutional Court is fractured by key judgments of conservative bias

The interpretation of the Constitution has been filled with relevant discrepancies between the magistrates of the Constitutional Court.

Every day the sentences passed unanimously on especially controversial issues and subject to political anger are less frequent.

In recent times, there are many rulings where individual votes of the group of magistrates elected at the proposal of the PSOE are presented against the conservative majority.

This situation of the presentation of individual votes in the judgments, which reflects the existing fracture between the two blocks of the Court, has only had as a notable exception the resolutions related to the Catalan independence challenge and the judicial cases opened in relation to the so-called

procés

.

The strong division is due to the fact that in social matters and fundamental rights two very opposed mentalities - conservative and progressive - and difficult to reconcile now coexist.

Especially when in court there is a very consolidated majority, of a conservative nature, and the role of the minority is increasingly testimonial.

Although this circumstance should change in the coming months if the pending renewals of magistrates are undertaken, so that the progressive sector recovers the majority lost many years ago.

Numerous dissenting individual votes that affect all types of constitutional rights, from health to education, passing through freedom of expression or security in the workplace, give a good account of the fracture that now exists within the Court.

Many private vows

The impossibility of reconciling positions between the conservative and progressive sectors of the Constitutional is reflected in the volume of individual votes signed by magistrates of the progressive minority, who have not always acted en bloc, against the rulings passed with the unanimous vote of the conservative majority.

This has happened in the case of the Citizen Security law.

The ruling endorsed, with conditions, the expulsion of immigrants who set foot on Spanish soil without any type of legal assistance.

The sentence also included the warning that "the rejection will be carried out in compliance with international human rights and international protection regulations to which Spain is a party."

With these precautions, the intention was to attend to the pronouncements included in the sentence issued by the European Court of Human Rights last February, on the case of two immigrants expelled from Melilla in 2014.

But the final text had the vote against the magistrates Cándido Conde-Pumpido and María Luisa Balaguer.

The also progressive Juan Antonio Xiol opted in the end with the majority, and Balaguer drew up a private vote in which he explained that, at the moment of truth, the fact of endorsing the law with conditions - such as ensuring, when appropriate, judicial control of expulsions— will not prevent hot returns.

The alternative resolution proposed by this magistrate considered that the Law would have had to be declared unconstitutional.

And not only because of the lack of guarantees for immigrants, but because the value of "social tranquility" prevails in all its aspects over "the defense of the rights of those who have greater difficulties to live in peace and quiet.

Balaguer added that the presentation at opposite poles of the values ​​of security and freedom "is not typical of constitutional states", because in these "the claim before the powers of the State, through pressure in the street, is recognized as a legitimate form of expression of political participation, for citizen awareness and in the use of the constitutional value of political pluralism ”.

On other issues, Balaguer has voted together with justices Juan Antonio Xiol, Cándido Conde-Pumpido, and Fernando Valdés, until his recent resignation.

All four made up the progressive sector, with different accents.

How many times this group has been united, the sentences promoted by magistrates of the conservative sector have prospered by eight votes to four.

The progressive bloc has not been able to go further.

Universal health

The unity of the group was maintained, for example, to defend the right to universal health care, when the Government of Rajoy appealed the Basque rule that extended its benefits to irregular immigrants.

Here, not only the right to health in itself was defended, but also the capacity of the autonomies to expand state services on their own.

The four cited magistrates also voted against the ruling that endorsed the objective dismissal due to illness.

Through several individual votes, they exposed the danger that this ruling would pose a risk to the health of the workers, especially if they came to the company finding themselves ill, for fear of being fired.

The same pattern was repeated in educational matters when the court decided the appeal against segregated education.

The ruling left open the possibility of accessing public funding by centers that discriminate based on sex.

But the progressive bloc considered school sexual segregation discriminatory, refusing to admit the "separate but equal" principle, defended by the conservative majority.

The education law recently approved in the Congress of Deputies leaves without public subsidy the centers that separate boys and girls.

Disunity in the 'procés'

In relation to the

procés

, the progressive minority has not acted together.

The magistrate Juan Antonio Xiol has defended in his private votes a very open and permissive concept of the rights of political participation, which has not always been shared by the magistrates of his sector.

Xiol proposed, for example, endorsing the amparo appeal filed by Oriol Junqueras against Judge Pablo Llarena's decision to keep him in preventive detention in 2017, when he had not yet been processed for rebellion, so that he could participate in the election campaign to the Catalan Parliament.

On that occasion, the judges Valdés and Balaguer supported him, for whom the right that Junqueras should have recognized "affects the structure of the democratic system."

Xiol, on the other hand, was the only member of the Constitutional Court who last November formulated a private vote against the court's decision to reject Quim Torra's request to suspend his sentence of one and a half years of disqualification for the crime of disobedience.

The core of his argument was that Torra's right to political participation would have been irreversibly damaged if the Constitutional Court finally annulled that sentence.

A plenary session on outrages and rosaries

The Constitutional Court will dedicate part of its next plenary session, starting on December 15, to two issues that are known in the court itself as "the resources of outrage and the rosary."

In both challenges it is discussed whether the sentences imposed should be annulled.

In the first case, which has already made several rounds by the Court, a trade unionist who asked to "set fire" to "the fucking flag" in front of a Navy barracks was sentenced to a fine for a crime of outrage against national symbols.

In the second case, the sentence of one year imposed on five young people who broke into a church in Palma de Mallorca with shouts of "out the rosaries from our ovaries" is analyzed.

The sentences prepared by the speakers, from the conservative sector, propose to confirm the sentences.

The three magistrates from the progressive sector consider, on the other hand, that the jurisprudence of the European Court of Human Rights should be applied, which did not consider the burning of photos of the King a crime, and that resources should prosper, due to the prevalence of the right to freedom of expression.