The Holiday Chamber of the Constitutional Court has rejected for processing by two votes to one the appeal of the former president of the Generalitat, Carles Puigdemont, against the arrest warrant issued against him by the Supreme Court on June 13, for the crimes of disobedience and embezzlement. The decision of the aforementioned Chamber coincides with the beginning of the negotiation phase aimed at gathering the necessary support for the investiture of the acting President of the Government, Pedro Sánchez, a situation in which the support of Puigdemont, as leader of Junts, may be key . Until now, all the appeals presented in relation to the criminal procedure related to the process have been systematically admitted for processing and then examined regularly by the plenary session of the court, not by a Chamber such as the Vacaciones Chamber, made up of only three magistrates.
In this case, the court was made up of two magistrates from the conservative sector -César Tolosa and Concepción Espejel- and a progressive, Laura Díez. The first two consider in the order that Puigdemont’s appeal is inadmissible for processing that it was urgent to resolve his challenge to the latest arrest warrants issued by the investigating judge of the process, Pablo Llarena. Tolosa and Espejel explain that the former president of the Generalitat —and former counselor Toni Comín— had requested a precautionary measure that did not allow waiting. That measure consisted of a request that the court agree to suspend said orders while it studied the merits of the matter to decide whether it was appropriate not only to suspend them, but also to annul them.
Laura Díez, on the other hand, directly criticizes the arguments of her two colleagues in the Constitutional Holiday Chamber, considering that it was not urgent to resolve this matter, which entered the court on July 31. She also believes that the case has special constitutional significance and, therefore, should have been referred to the plenary session.
Díez also shows his surprise at the fact that with this resolution the court breaks the line of behavior that it has followed up to now in the sense of admitting the resources related to the judgment of the procés and its derivatives, to then resolve by judgment on the merits of each complaint raised by the pro-independence leaders for alleged violation of their fundamental rights. These resolutions have not always been approved unanimously, but they have allowed the Constitutional Court to study each allegation in depth to finally endorse the action of the Supreme Court in the criminal case of the process.
In essence, the appeal by Puigdemont and Comín states that they should continue to be recognized as the prerogative of immunity, as elected members of the European Parliament. They consider that although there has been a first pronouncement by the General Court of the European Union, contrary to the recognition of said prerogative, this decision is not final because it can be changed by the Court of Justice of the European Union, in the event that their appeal is successful. The challenge considers violated their rights to effective judicial protection, to the ordinary judge predetermined by law, to a process with all the guarantees, and articles 6 and 13 of the European Convention for the Protection of Human Rights, regarding the right to a due process and freedom of assembly and association.
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Faced with this, the order of the Constitutional emphasizes that the European Parliament itself rejected the need to request any petition regarding Puigdemont and Comín because “article 71 of the Spanish Constitution does not require obtaining parliamentary authorization to bring criminal proceedings against a person who acquires the condition of parliamentarian after processing”, case of both amparo applicants. Judges Tolosa and Espejel advocate “a strict interpretation of the scope of the prerogative” of immunity, which “results from the prohibition of its understanding as a personal privilege or as an expression of an alleged ius singulare established in order to seek to subtract the behaviors of the deputies or senators of the knowledge or decision of judges and courts, (because), the existence of such type of privileges would conflict, among other things, with the values of justice and equality that art. 1.1. of the Constitution recognizes them as ‘superiors’ of our legal system”.
Judge Laura Díez, in turn, disagrees with this resolution, arguing in the first place that “the simple request for a precautionary measure, or the abstract possibility of new factual situations that make it necessary, cannot by itself justify the need for resolve by the Holiday Room”. Díez also reasons that the “decision that flatly rules out immunity is not that of an admission process because, given the lack of firmness (because it is appealable) of the resolution of the General Court (of the European Union), in this process the existence of a possibility of violation of the right that justifies the admission of the appeal should be recognized”.
Díez also points out that Puigdemont and Comín’s petition for amparo raises “a legal question, still open at a European level, on which the Constitutional Court has not ruled yet.” It is —adds the dissenting opinion— that “this Court has not established doctrine on what is the scope of parliamentary immunity of precautionary measures taken by a judge or court on an investigated or prosecuted before being proclaimed deputy” . And he further underlines that “to this it should be added that this legal issue that has not yet been resolved by the Constitutional Court is an issue that transcends the specific case, as it raises a legal issue of relevant and general repercussion.”
Díez finally specifies that in the event that the amparo appeal has been admitted for processing, his criteria is that “the requested precautionary measures should have been denied”, consisting of suspending the aforementioned arrest warrants. The reason is that “they substantially coincide with the object of the appeal and this Court has held that, in these cases, the suspension of the precautionary measures depriving of liberty is not appropriate, since this would be equivalent to an early granting of the amparo.”
In short, Díez makes it clear that he would have rejected the precautionary measures and would not have defended suspending the arrest warrants issued by Llarena. But in no case does he consider it justified to rush the matter in the middle of August and that the decision is made by the Holiday Chamber, and not by the plenary session of the Constitutional Court after a debate on the alleged violation of rights raised by Puigdemont and Comín.
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