The Prosecutor’s Office of the Constitutional Court considers that the Vacation Chamber of this court lacked jurisdiction and acted “without legal coverage” to reject the appeal presented by the former president of the Generalitat who escaped from justice in Brussels, Carles Puigdemont, in which he requested the annulment of the order of his arrest issued by the Supreme Court. This is stated in the 14-page appeal that the prosecutor has presented to request that said order be revoked and that the full body of guarantees assume the study of the case, as has generally occurred with all matters related to the criminal case of the process. It is also stated that there were no urgent reasons that justified the resolution.
The Prosecutor’s challenge analyzes in very critical terms the actions of the Vacation Chamber, which decided by two votes to one to reject the appeal of MEP Puigdemont, which was joined by his former councilor of the Generalitat and also MEP Toni Comín. The petition for protection filed sought to annul the arrest warrant issued against both in the high court. And the Vacation Chamber of the Constitutional Court considered it urgent to decide on this request, presented as a precautionary measure, in addition to justifying the inadmissibility of processing the appeal in that it could not wait to make a decision on said request.
The Prosecutor’s Office now argues that “the legal reasoning included in the appealed order does not duly justify, in view of the applicable regulations, the competence of said Section to adopt such a resolution, so that, by virtue of a merely formal and not limited argumentation For the procedural purpose of that regulation, the aforementioned order exceeds the material scope of jurisdiction that, exceptionally and for reasons of urgency, corresponds to the Vacation Room. The prosecutors add that “this Ministry understands that the specific intervention of the Vacation Section in this appeal for protection actually lacked legal coverage.”
Two conservatives and one progressive
The Chamber that issued the appealed order was composed of judges Concepción Espejel and Laura Díez, and judge César Tolosa. The votes in favor of inadmissibility came from Espejel and Tolosa—both from the conservative sector of the court—, while Díez—from the progressive group—presented a dissenting vote to which the prosecutors allude repeatedly, supporting her thesis.
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In this sense, the Prosecutor’s Office interprets that the rules of the court itself applicable to the case do not determine that the Constitutional Court “must or is obliged to resolve on non-business days (such as those in the month of August) all the precautionary or very precautionary claims that are presented to it or whose resolution period elapses or expires on such days, nor does it presuppose that such possibility – “may” – of acting necessarily materializes in the issuance of a resolution, and even less so of a resolution that does not pronounce on anything urgent, as in this “of course it has happened.”
In the contested order—adds the Constitutional Prosecutor’s Office—the Vacaciones Chamber “does not admit the appeal for protection in order to resolve an urgent matter, but, on the contrary, invokes in the abstract its jurisdiction for an alleged reason of urgency to disallow the appeal, without to record any urgency, which in reality does not exist, as evidenced by the dissenting opinion” of the aforementioned dissenting judge.
Lack of urgent reasons
When analyzing the lack of urgent reasons, the prosecutors emphasize that the appellants are not in Spanish territory, “the only place where the arrest warrants decreed by the resolutions appealed for protection can be executed.” They also highlight that “the appellants carry out their representative functions outside the national territory” and are not currently deprived of liberty. The Prosecutor’s Office estimates that to all this it is necessary to add “a subjective element that is not insignificant: the risk that was intended to be prevented—that the plaintiffs would be detained by application of a national arrest warrant—depended and depends, not exclusively but excluding, on their own conduct, to the extent that only if they voluntarily decided to enter national territory would said risk become effective, also in the case of people who have clearly been abroad for years, evading the action of the judicial body that orders their deprivation of liberty.
The appeal also highlights that the requests for protection linked “to the process of unilateral access to the independence of Catalonia, which as is well known is the cause of” the case “in the framework of which this procedure is generated, have been systematically admitted for processing and attributed to the full court, for resolution” on the merits of the petition raised, which here was flatly inadmissible. The Prosecutor’s Office considers that the same guideline should be maintained with Puigdemont and Comín’s appeal, with the understanding that “it is undoubtedly possible that, in the end, the amparo appeal (…) could end up being dismissed, or even inadmissible, and It is also important that this Prosecutor’s Office does not oppose it.” But it emphasizes “the transcendental importance that” the inadmissibility, if appropriate, is agreed upon by the competent body”, because this “results directly from the constitutional essence of the configuration, organization and functioning of the constitutional jurisdiction, which (…) are directly rooted in the democratic legitimacy of the court and each of its members.”
For all these reasons, the Prosecutor’s Office considers that “the substantive decision adopted” by the Vacation Chamber in the appealed order has not been “neither in time nor by the body that, in accordance with the law, ensures its constitutional legitimacy, or, which is the same, they guarantee that such decision is the result of the legitimate exercise of constitutional jurisdiction.” Therefore, the prosecutors conclude, said resolution “cannot be validated, nor even evaluated in terms of its substantive content or its specific decision-making meaning, but rather revoked for the sake of correct interpretation and application, in the present case and in the future, of the rules that establish the conditions of the court’s jurisdiction.”
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