The TC Prosecutor's Office is in favor of protecting Alberto Rodríguez for the withdrawal of the seat but not for the conviction

He rules out that the sentence issued by the TS violated any fundamental right of the then deputy

MADRID, 26 Jul. (EUROPA PRESS) -

The Prosecutor's Office of the Constitutional Court (TC) has reported in favor of granting amparo to the former deputy of United We Can Alberto Rodríguez for the decision of the president of the Congress of Deputies, Meritxell Batet, to remove him from the seat, but against granting it for the sentence imposed by the Supreme Court (TS) to one month and 15 days in prison for the crime of attacking authority, with the accessory penalty of special disqualification for passive suffrage.

This is how the Public Prosecutor's Office has positioned itself in two reports of 43 pages each --to which Europa Press has had access--, with which it ruled on the two appeals for amparo filed by Rodríguez in the TC after losing the seat as consequence of the execution of the sentence issued by the Supreme Court on October 6, 2021 for kicking a police officer during a demonstration that took place in 2014 in La Laguna (Tenerife).

The Supreme Court replaced the prison sentence with a 90-day fine with a daily fee of 6 euros (in total, 540 euros), although the high court clarified that this replacement of the main sentence did not affect the accessory sentence of special disqualification for passive suffrage during the time of the custodial sentence, which was the one that finally led to Rodríguez losing his seat.

The former 'purple' deputy appealed, in the first place, the agreement dictated by Batet on October 22, 2021 by which he was informed that he had arranged his replacement as a member of the Lower House, in execution of the resolutions of the TS and attending to the interpretation that the court itself had made on the application of the accessory penalty.

Prosecutor Pedro Crespo considers that protection should be granted because "his fundamental right recognized in article 23.2 of the Spanish Constitution (CE), in relation to article 23.1, to remain in a representative public position and not be removed from it if not for the causes and in accordance with the legally established procedures".

In this sense, Crespo denies the allegation made by Rodríguez that Batet invented the "non-criminal consequence" of the Supreme Court ruling, but he does believe that there was room for the president of Congress to carry out another interpretation of the law, pointing to the mere suspension of rights as a deputy.

The prosecutor recriminates Batet that "there is no evidence that the appealed decision had more support than that of a double automatism: the acceptance of any custodial sentence as an automatic trigger for the application of article 6.2a) of the Organic Law of the General Electoral Regime (LOREG) and the conclusion that the combination of this rule with article 6.4 of the same led automatically to the definitive loss of the seat".

However, he acknowledges that Batet had "little margin" and calls for "greater certainty of the rule, because basing its application on the assumption that, had they known, the voters would not have voted for the condemned, not only could it be too much to assume, but neither does it prevent them from voting for him in the following elections (...), which comes to break any possibility of proportional logic between the legal effect of the sentence and the real temporary duration of its extra-penal effects".

All in all, he advocates restoring Rodríguez fully in his fundamental right, declaring the nullity of the agreement dictated by Batet, so that "the actions are taken back to the moment prior to said decision, so that the competent bodies of Congress proceed to resolve, with full respect for the fundamental right violated, on the effects, within the scope of its competence, of the ruling of the Second Chamber of the Supreme Court".

On the other hand, Crespo responds to the appeal made by Rodríguez against the TS's own ruling and a subsequent resolution, of December 15, 2021, by which the high court ruled out annulling it, but in this case to interest the TC to dismiss it.

In this second appeal, Rodríguez denounced a violation of the right to an impartial judge, because in the sentence it was branded as "inappropriate" that in his last word he advanced that he would reach the Strasbourg Human Rights Court (ECHR), but the prosecutor estimates that it lacks "the slightest objective basis" because "there is no reason to suspect that the specific judicial reasoning could be decisive, or even collaterally influential, in the sense of the ruling."

He also warned that his right to the presumption of innocence had been violated, maintaining that the conviction was based solely on the testimony of the agent who was attacked. At this point, Crespo states that, although the Second Chamber "relies practically exclusively" on that, "the joint reading of the court's reasoning does not allow us to conclude that his speech can be dismissed as unmotivated, illogical or arbitrary.

The former deputy of Unidad Podemos also argued that the principle of criminal legality had been violated, which requires punishing with the penalties established by law, for maintaining the accessory penalty of disqualification, despite replacing the main penalty - jail. -- for a fine. The prosecutor expects that said argument "does not respond to the reality of what was reasoned and decided in the judgment that is being challenged."

Regarding the alleged violation of the principle of proportionality, on the understanding that the disqualification was especially "burdensome", and of the right to political participation, the prosecutor also rejects it by stating that "the accessory sentence imposed did not exceed the foreseeable framework of his legal regulation, and that its imposition and its execution (...) were duly justified in the context of the application of said criminal law".

"It has already been stated that the non-criminal consequence of the deprivation of the seat is outside the scope of the aforementioned accessory penalty. Therefore, it is not appropriate to judge in terms of proportionality the relationship between the two, for the purposes of attributing to said accessory penalty a violation of the right of article 23 CE", he emphasizes.

And, finally, Crespo also rules out that there has been a violation of the right to assembly and demonstration, not appreciating that the sentence imposed on Rodríguez has "a discouraging potential" for the exercise of this fundamental right.