The Constitutional Court says that the duty of impartiality of its magistrates "cannot go beyond what is necessary"

He justifies his decision to prevent Espejel from withdrawing from the debates on the abortion law

MADRID, 16 Feb. (EUROPA PRESS) -

The Constitutional Court (TC) established, in the order by which it rejected the decision of Concepción Espejel to voluntarily depart from the deliberations of the Plenary on the appeal of the PP against the abortion law of 2010, that the duty of impartiality of its magistrates " cannot go beyond what is necessary" to the point of "prejudicing" the exercise of its functions, stressing that they are different from those of the other courts.

This is stated in an order of February 7, which has been known this Thursday, where he sets out the arguments for which he prevented Espejel from refraining from the debate on the abortion law for having been a member of the General Council of the Judiciary (CGPJ) that reported the draft, the same circumstance in which the vice president of the TC, Inmaculada Montalbán, was found, and similar to that of the president, Cándido Conde-Pumpido, because he was part of the Fiscal Council that reported the draft.

"The interpretation of the duty of impartiality of constitutional magistrates cannot go beyond what is necessary, to the detriment of the fundamental right to the predetermined ordinary judge -in this case by the Constitution-, nor can it harm the exercise of constitutional jurisdiction" , reads the order of the Plenary of the TC, which has the particular votes of three magistrates.

The court recalls, citing its own jurisprudence in other cases of abstentions and recusals, that "what is involved is to enable the removal of the forewarned and biased judge, that is, the one who can justifiably suspect that he can put the exercise of his function serving the particular interest of one of the parties or their own interest".

"We mean by this that, unless the content of the impartiality guarantee is undermined, the recusal or abstention of a constitutional or ordinary judge is not justified by the mere fact of having legal criteria on the issues that must be resolved", maintain the magistrates.

In this regard, they emphasize that it is normal for those who come to the TC to have a "legal opinion" formed on certain matters because "each constitutional judge is chosen from among jurists of recognized prestige with more than 15 years of practice, professional experience within the framework of which is habitual, almost inevitable, that he has expressed his own legal opinions on the constitutional provisions".

In the specific case of Espejel, they emphasize that the reason for her abstention is "the externalization of a legal criterion more than 12 years before accessing the position of magistrate" of the TC, within the framework of "an objective and abstract process control of constitutionality" of the draft of a law -not of the current and appealed law- that was reflected in a report that the CGPJ did not manage to submit to the Government.

In addition, they emphasize that, although the magistrates of the TC are governed by the same causes of abstention and recusal as the rest of the judges, those indicated in the Organic Law of the Judiciary (LOPJ) in its article 80, in the case of the guarantee court must be interpreted in a "restrictive" manner because "no other judge can occupy, even temporarily, the position of the person affected by the charge of partiality, because in this seat there is no judge to replace him".

"It would be wrong to understand that said normative reference supposes the automatic and literal application to the constitutional jurisdiction of the system of guarantees that the law establishes for the ordinary jurisdiction," they affirm.

In this sense, they claim that "the singularity of the Constitutional Court and the functions it has attributed, extensible to the way in which its members are elected and the regulation of its procedures, requires modulating and adapting the legal provisions on abstention and recusal to make practicable exercise of constitutional jurisdiction".