The Constitution borders on the lack of a quorum in the causes of the ‘process’ Spain

Enrique Arnaldo takes office as the new judge of the Constitutional Court before the outgoing president of the body, Juan José González Rivas, on November 18 in Madrid.
Enrique Arnaldo takes office as the new judge of the Constitutional Court before the outgoing president of the body, Juan José González Rivas, on November 18 in Madrid.ZIPI (EFE)

The processing of pending appeals on the Catalan independence process in the Constitutional Court is at risk of being stranded due to lack of a quorum, after the challenge presented this Friday by the former president of the Generalitat, Carles Puigdemont, against magistrates Enrique Arnaldo and Concepción Espejel. If the initiatives proposed by Puigdemont’s lawyer, Gonzalo Boye, are successful, these conservative magistrates would be excluded from the case, and would find themselves in the same situation as their colleagues Antonio Narváez and Cándido Conde-Pumpido, who chose to withdraw last April after that he ex-president escaped in Belgium will also recuse them.

The organic law of the Constitutional Court requires, in its article 14, that at least “two-thirds of the members that compose it at all times be present to adopt resolutions.” The court of guarantees is officially formed by its twelve members, however, one of them, Alfredo Montoya, does not participate temporarily in the deliberations as he is recovering from a stroke he suffered last August. In this way, if the challenges of Arnaldo and Espejel – two magistrates close to the PP who entered the last court renewal, last November – go ahead – only seven magistrates would be in a position to decide on these causes, this is one below the eight that mark the two-thirds limit required by law.

The challenge presented by the lawyer Boye – which will have to be resolved by the court itself – alleges “lack of impartiality” of Arnaldo and Espejel, and for this it is set, among other data, in the “close relationship” of said magistrates with the PP . The former councilors of the Government Toni Comín, Clara Ponsatí and Lluís Puig, also fled from justice in Belgium, have joined the same initiative.

The brief maintains that both magistrates have been significant in their careers for their lack of impartiality in relation to the independence movement in general and with the events of the illegal referendum of October 1, 2017 in particular. Puigdemont considers that Enrique Arnaldo’s pronouncements have been especially explicit. The letter recalls that this magistrate asked that “the full weight of the law fall” on the independence leaders, coinciding with the demonstrations carried out by the leader of the PP, Pablo Casado. It also cites that in September 2017 Arnaldo signed the manifesto entitled “Stop the coup”, in which it was stated that the Catalan Executive had not hesitated to “go beyond all the limits of legality and decency” to put at risk “coexistence and civil peace ”.

The challenge affirms that “even before the self-determination referendum that took place on October 1, 2017, His Excellency Arnaldo Alcubilla requested that the Government of Spain take criminal action” against the pro-independence leaders. Then, Boye argues, a “political persecution by criminal means” began, from which the various appeals for protection that the Constitutional Court has to resolve, and on which Arnaldo “intends to know as a magistrate, are derived.”

“Sick of sectarianism”

Other demonstrations by Arnaldo are also cited in which he described as “sick of sectarianism” those who disagreed with the decision taken by the Prosecutor’s Office to file a complaint for rebellion against the pro-independence leaders. The letter adds that Arnaldo had a relationship of friendship with the then state attorney general, José Manuel Maza, now deceased, who was the one who signed the complaint, as the highest representative of the public prosecutor’s office.

The brief also questions the impartiality of Espejel in view of the particular vote that he cast as a component of the court that acquitted the major (maximum graduation) of the Mossos d’Esquadra, Josep Lluís Trapero. In that dissenting vote, the then president of the Criminal Chamber of the National Court attributed, says Boye, “a criminal nature to the conduct of the challengers.” It also stresses that Espejel was removed from the Gürtel case, that affected the PP, the party that has proposed it to be part of the Constitutional Party. The letter mentions that Espejel belongs to the conservative Professional Association of the Magistracy, the one with the greatest implantation among judges and to which it attributes an “excessive belligerence” against the pro-independence leaders.

The challenges raised by Puigdemont and his colleagues against justices Arnaldo and Espejel not only seek to separate them from hearing about the appeals against the different resolutions issued against politicians by the Supreme Court in the framework of the case of the process. They also include appeals against the decisions taken against three of them – Puigdemont, Ponsatí and Comín – by the Central Electoral Board, which tried to deprive them of their status as deputies of the European Parliament and their associated immunities when they were prosecuted in absentia for the Supreme in the cause of procés.

The precedent of Narváez and Conde-Pumpido

The challenges of former Catalan president Carles Puigdemont have the precedent of those filed against justices Antonio Narváez and Cándido Conde-Pumpido. Narváez said in a conference that the “crisis” derived from the events of 2017 in Catalonia was “a disguised coup, much more serious due to its consequences than the coup that took place in 1981”, with the assault on the Congress. Conde-Pumpido, in turn, affirmed that with 1-O “democracy is invoked precisely as a way of attacking the rule of law, when in reality there can be no democracy without the rule of law.”

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George Holan

George Holan is chief editor at Plainsmen Post and has articles published in many notable publications in the last decade.

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