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The Supreme Court's change on pardons for 'procés' prisoners: an "embarrassment" that could have been avoided

2022-05-25T21:23:50.876Z


Court magistrates maintain that there are formulas to prevent the revocation of a previous decision of the same room


The change of criteria of the Supreme Court on the resources of the pardons to the prisoners of the

procés

has taken place after a host of circumstances that,

a priori

, may seem inevitable: the inadmissibility of the challenges was adopted in January by the minimum (three votes to two);

and the retirement of a magistrate, together with the operating rules of the court (which imposes the rotation of judges to make up the admission section), has altered the composition of the Fifth Section (in charge of clemency measures) and, a precarious majority favorable to inadmissible the appeals, has passed to another just as precarious but in the opposite direction.

“There was a very clear legal debate about whether the political parties or entities that appealed for pardons against those convicted of sedition had the legitimacy to do so.

It is a highly debatable issue, as was seen in the tight vote in January.

And by changing the composition, the opposite position has been imposed," says a sympathetic magistrate with the change of criteria, although he admits that "it does not favor legal certainty."

But was the impact of the change in the composition of the court really inevitable?

Could it have been limited?

Some magistrates, both in favor of admitting the appeals and opposed to it, consider that the change of criteria could and should have been avoided.

First, leaving the decision on the legitimacy of the appellants for the final sentence, as the court has done on many occasions and as it is finally going to do now.

In other words, admitting the objections from the beginning, understanding that the debate on legitimation could not be resolved without entering into a thorough deliberation on the resources.

This is what was decided last year in the appeals of PP and Vox against the appointment of Dolores Delgado as attorney general, which were finally inadmissible due to lack of legitimacy of the two parties.

“Procedurally, it would have been the most logical thing to do, which is almost always done, and it would have avoided this embarrassment, and even more so pending the retirement of Segundo Menéndez and the departure of Ángeles Huet to the admission room,” says a member of the Third Chamber. , a position with which several consulted magistrates agree.

Sources from the room affirm that the president of the Supreme Court, Carlos Lesmes, even reproached Judge Menéndez, who until he retired in April presided over the Fifth Section and tipped the balance in January in favor of rejecting the challenges, that he chose to agree the lack of legitimacy in the preliminary phase, which Lesmes interpreted as an attempt by Menéndez to settle it before withdrawing.

There are also discrepancies in the room about whether Judge Huet, rapporteur for the January resolution and who weeks later went to the admission room, could have been part of this week's deliberation.

High court sources point out that the magistrates of the admission section only enter another section when it is necessary to complete the court and that Huet's entry would have been an exception that could have been understood as deliberate.

However, several members of the room defend the opposite.

“The magistrate who is in admission joins his section of origin when a magistrate is missing.

Now it was not lacking, but since it was an appeal for reconsideration, it could have been done, especially considering that she had been the rapporteur of the previous thing ”,

defends a judge of the room who recognizes himself "concerned" about the image of politicization of the court that generate changes in criteria such as the one that has occurred.

“The Supreme has to be one, that is why it is important that he has a single criterion.

Enormous harm is done if decisions appear to be made by being progressive or conservative,” he adds.

The three magistrates who have imposed their criteria this week have had a link with the PP, one of the parties that appeals for pardons: Fernando Román was Secretary of State for Justice with Alberto Ruiz Gallardón, Wenceslao Olea is the current member of the CGPJ at the proposal of the PP and Inés Huerta was among the candidates proposed by the popular for the pending renewal.

On the other hand, Ángel Arozamena, who voted in favor of rejecting the appeals, was proposed as a member of the Council by the PSOE.

Some magistrates also allude to the fact that the president of the Third Chamber is usually part of the deliberations of the matters that he considers relevant.

This is what the current one, César Tolosa, has done in two of the most controversial issues in recent months: the appeals for the appointment of the attorney general and those filed against the appointment of the juvenile court prosecutor, which was annulled.

However, Tolosa has not wanted to participate in the debate on pardons, despite the fact that it is one of the most important issues pending resolution and that its presence would have increased the total number of votes and reduced the risk of a change of opinion .

The number of magistrates who have deliberated on the admission of appeals has been decisive for the change of final criterion.

In the two deliberations (January and now) five magistrates have participated, all of whom currently have the Fifth Section and the minimum number required to form a court in the Third Chamber.

Until a few months ago, all the sections had seven or eight judges, who participated in all the deliberations, so that a retirement or rotation shift for the admission room hardly altered a majority.

But the Contentious Chamber, the most affected by the vacancies generated in the Supreme Court due to the blocking of the renewal of the CGPJ, now has eight of its 33 seats unfilled and no section has more than five judges.

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Source: elparis

All news articles on 2022-05-25

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