The Prosecutor's Office warns that the parliamentary suspension opens a way for the TC to supervise initiatives in process

Asks to revoke the very precautionary stoppage of the legislative process of the reform of the court itself

MADRID, 16 Ene. (EUROPA PRESS) -

The prosecutor of the Constitutional Court (TC) Pedro Crespo has asked to revoke the decision adopted last December by the TC to urgently suspend the parliamentary processing of the reform of the court itself, as part of the piece of precautionary measures on it matter, at the same time that it has warned that said resolution opens a path that could turn the court of guarantees into an "oversight body" of the legislative initiatives in process.

In a 46-page report, to which Europa Press has had access, Crespo is interested in "the revocation of the precautionary measure agreed in the present procedure by the order of December 19, as well as the annulment of what was agreed in said order with respect to the recusal of magistrates Pedro González-Trevijano and Antonio Narváez", despite the fact that he is aware that none of this would have a "tangible practical result", because the TC has already been renewed without the need for the aforementioned reform.

That December 19, the TC resolved, by the old conservative majority of 6 magistrates against 5, to admit to processing the appeal of the PP against the reform of the court itself, for having been processed as amendments to the proposal to repeal sedition and modify the embezzlement; flatly reject the challenges formulated by Unidas Podemos and PSOE against these two magistrates; and suspend the debate and vote in the Senate on said amendments as a very precautionary measure.

Then, the Constitutional Court decided without listening to the parties because it was a very precautionary measure, but once it was aired, it gave a transfer to those involved --Prosecutor included-- so that they could make the appropriate allegations, something that Crespo does by positioning himself against both the suspension urgent as to reject the challenges considering that the court did not sufficiently justify it.

The prosecutor states that, "except for error, in the Spanish legal system there is no rule that expressly empowers the Constitutional Court to suspend the parliamentary process of a legislative initiative", deducing that, "if there is no regulatory provision that allows the court interfere in the parliamentary process is because it should not happen".

It also recalls that, according to the TC, the "exceptional urgency" is given by "the irreversibility of the damage that is to be prevented", that is, the violation of the rights of parliamentarians due to the way in which the amendments were processed, although Crespo believes that from the amparo petition filed by the PP it can be understood that "the infringement of the fundamental right would have already been consummated" with the approval of said amendments in the Congress of Deputies.

Thus, it indicates that "the urgency of the decision adopted is specifically linked to the objective of preventing a vote in the Senate", "something that evidently arises from a presumption about the favorable result of said vote".

For the prosecutor, this presumption "may present a visible zone of friction with the consolidated doctrine of the court that conditions the precautionary protection to the accreditation by the appellant of a real and imminent damage."

"And it should still be added that said presumption brings cause in addition to a strictly political judgment or prejudice, since the actions of the Upper House were not legally predetermined by the decisions of Congress," he adds.

Crespo criticizes that the order "does not address this issue and therefore does not offer a reasoned or reasonable explanation about the acceptance, apparently unrelated to the doctrine of the court, of a hypothesis of a political nature as a basis for the adoption of a precautionary measure."

The representative of the Public Ministry argues that the Constitutional Court could have limited itself to allowing the parliamentary channel to continue ordering not to promulgate or not to publish the amendments in the event that they had been approved.

Likewise, the prosecutor highlights the "historic decision that supposes recognizing the TC the capacity to penetrate, through an appeal for amparo, in the parliamentary process of a legislative initiative and to alter, condition or curtail its content".

In this sense, he sees as "substantially disturbing the principle of division of powers and the principle of parliamentary autonomy the very fact that the TC can suspend a legislative procedure".

Crespo emphasizes that "any unprecedented jurisdictional decision constitutes by definition a precedent", to add that "the one who leaves the order issued directly opens a way for the TC to become an 'a priori' inspection body of the object of legislative initiatives on the threshold of their processing, at least as far as their formal aspects are concerned, and without even excluding some degree of control over their material content".

In line, alert that the decisions adopted by the Constitutional Court would from now on "obtain the expulsion 'ipso facto' from the parliamentary procedure of all those initiatives that, according to a preliminary judgment, and in case of unprecedented urgency, show signs of not conform to an interpretation of the regulations of the chambers in accordance with the Constitution, even if this restriction of the legislative power can be based on an early judgment on the material unconstitutionality of the projected norm".

In his opinion, "the radical change of paradigm that this precautionary intervention of the Constitutional can suppose in the usual mechanics of operation of the Congress and the Senate and, therefore, the need to specify, for the sake of at least legal certainty, the budgets Such a decision would have required a detailed and careful explanation, which the car absolutely lacks."

In the same way, Crespo criticizes that the TC rejected outright, without studying them, the challenges launched by 'morados' and socialists against González-Trevijano and Narváez for being the two magistrates who at that time would have been replaced if the two amendments had been approved, thereby promoting the partial renewal of the Constitution.

The prosecutor maintains that the fact that the court argued that the challenges could not even be discussed because United Podemos and PSOE, which were not yet a party, requested it, meant generating a "loop effect that clearly clashes with the legal logic of protection of the right to impartial judge".

He points out that first "the impartiality of the court" should have been ensured and, "already on the basis of this fundamental guarantee", the other decisions should have been made, including the one related to the very precautionary measure.

To this he adds that, in his opinion, "it is objectively incontestable" that the reform proposed by both amendments "directly and automatically affected" González-Trevijano and Narváez, because it left the way clear so that, of the four magistrates who should be renewed --two at the proposal of the Government and another two, from the General Council of the Judiciary--, the two who already had a designated successor will take office in the TC without waiting for the other two who complete the 'pack'.

Crespo reasons that, although two other magistrates --Juan Antonio Xiol and Santiago Martínez-Vares-- were also waiting for their replacement, in their case there was no such conflict of interest because it was "unforeseeable" to know when the CGPJ was going to appoint their substitutes, while in the case of the two designated by Moncloa --the successors of González-Trevijano and Narváez-- they were nominated as of December 19.