The Constitutional Court is inclined to reject the challenges that the former president of the Generalitat, Carles Puigdemont, has presented against magistrates Enrique Arnaldo and Concepción Espejel, recently incorporated into the court at the proposal of the PP. The Court considers rejecting this initiative outright, although others of a similar nature also raised by the leaders of the Catalan independence process led to the abstention of the Constitutional magistrates Antonio Narváez and Cándido Conde-Pumpido. The substantial difference between these cases is that at that time the possibility of the court running out of business was not at risk. quorum to dictate the sentences that remain pending in relation to the conviction for the illegal referendum of 1-O.

Another important difference between the previous cases of Narváez and Conde-Pumpido and the current one of Arnaldo and Espejel resides in that the former were not set aside because the court accepted their challenge, but because both, of their own free will, chose to refrain from continuing to participate in the resolution of the resources of the process. That personal resignation prevented the Constitutional Court from having to assess whether there really had been a clear reason for them to be left out of the rulings on the independence process. And in the case of both, the reason for the challenge was that they had made demonstrations that – as is now the case with Arnaldo – led the defensemen of those convicted by 1-O to question their impartiality.

From the outset, the first far-reaching decision that the court will have to adopt is whether the plenary session that decides on the admission or not for processing of the challenges presented by the lawyer Gonzayo Boye, Puigdemont’s defender, against Arnaldo and Espejel must be composed by their current 11 members – the twelfth, Alfredo Montoya, is still on sick leave – or nine magistrates. That is, if Narváez and Conde-Pumpido participate or not in this resolution, given that they are refraining from intervening in all matters that concern the process. In the plenary session of this first decision, the challenged will be present, especially if the abstained, because they are, do not take part, since if both remained on the sidelines, the court would be left with only seven magistrates, that is, below the quorum required to make any decision. The organic law of the Constitution establishes said quorum in two thirds of its members, that is, in eight magistrates.

In any case, the hypothesis that the court would be tied up, without the possibility of ruling on the challenges due to lack of quorum, is unimaginable in any of the scenarios that are analyzed. There are precedents that can be invoked in this regard. In November 2007, for example, the State Bar had to report on a challenge filed against the then Constitutional magistrate Roberto García Calvo. There was a similar risk, and the attorney for the State based his writing on article 4.1 of the aforementioned organic law, according to which the court “will adopt whatever measures are necessary” to safeguard its jurisdiction. Therefore, it was interested in ruling out “the removal” of any challenged magistrates “until the admission control has been passed.”

For the Legal Profession “only admission guarantees that the appellant has fulfilled the requirements of time and form; that the challenge is based on concrete facts and with a solid appearance of being true; and, finally, that there is a cause for disqualification that prima facie [a primera vista] it can be founded ”. And he added that “conversely, impeding or formally defective challenges should be inadmissible or rejected outright.” In the case of those now presented, the court will analyze whether they are “impeding” initiatives for the Constitutionalist’s actions. And in this regard there is some precedent, since the plenary has also rejected an initiative presented to challenge all its magistrates, in the context of the resources of the process.

Inadmissibility for processing

The sources consulted indicate that there would be quorum in the plenary session of the Constitutional Court if what is proposed from the outset is the inadmissibility of the objections for processing, for which the very persons concerned by the initiative could be present. Hypothetically, the presence of Magistrate Alfredo Montoya could also be possible if his recovery proceeds quickly. What is necessary, in any case, is that there be a minimum of eight magistrates to make the decision, a requirement that becomes even more important if it is taken into account that the recusal document presented by Puigdemont also requests that the president of the court, Pedro González Trevijano, also refrain from the causes of the process, for his friendship for Arnaldo, or that otherwise he is also considered challenged.