The Magistrate of the Constitutional Court Concepción Espejel considered that having participated in the plenary session that debated and voted on the appeal against the abortion law of the Government of José Rodríguez Zapatero compromised the absence of impartiality and, by extension, of the guarantee body itself. This is stated in her particular vote against the decision of the Plenary of the Constitutional Court to reject the challenges filed against her and three other magistrates for having obtained their processing in different hanging reports. The week passed by the progressive majority forced Espejel to participate in plenary by rejecting his abstention, a decision on which three court magistrates disagreed in two particular votes. Since Espejel did not participate in the conclave in which his abstention was seen, he had to wait for the recusals to express his opinion on the decision of his colleagues. "I consider that my participation and consequent intervention in the deliberation and voting of the aforementioned appeal (...) may generate the appearance that, at least, one of the magistrates of the Plenary against whom the recusal brief and subsequent request for abstention was presented It was not impartial." Yello for the "deep" knowledge of the object of the appeal and the externalization of a "firm criteria and maintained to date in relation to some controversial points of the draft law." Critical amendment Espejel refers to the "detailed and extensive amendment to the entirety" of the report that he signed as a member of the General Council of the Judiciary in 2009, a year before the approval of the norm. In said text, the magistrate and the member Claro José Fernández presented their legal opinion "on many of the issues" that were the subject of the unconstitutionality appeal, including free abortion until week 14. "This situation has a negative impact on the appearance of impartiality that the Court must project to society, jeopardizing the confidence that the courts must inspire in citizens in a democratic society." "I consider that this risk of affecting the image of impartiality is greater when the decision not to consider justified the reason for the alleged abstention deviates from those adopted in multiple other matters, in which the abstentions formulated by other magistrates have been considered justified. , being the same cause invoked and analogous to the concurrent circumstances, in which cases the abstainers were correctly and definitively separated from the knowledge of the resources and all their incidents, without the need for further legal grounds to estimate them ”, denounced the magistrate. Similar cases Espejel alludes to the accepted abstentions of Laura Díez for her previous position in the Council of Statutory Guarantees of Catalonia, "in whose capacity she took part in the issuance of reports on the drafts that gave rise to the laws that refer to the respective appeals of unconstitutionality” (25 percent of Spanish in the classrooms); or those of María Luisa Balaguer for having reported on her from her previous position as a member of the Consultative Council of Andalusia. The magistrate recalls that, contrary to what the court held regarding her abstention, those were not planted "in processes between parties in which particular interests with which to align themselves are ventilated." In his opinion, it does not matter if the CGPJ report and its amendment were approved or not by the Plenary Council and therefore did not reach the hands of the Government (argument put forward by the progressive majority). This circumstance "does not prevent the possible impartiality of those who express our opinion on the constitutionality of precepts of the draft that are the subject of the unconstitutionality appeal, since the legal cause invoked does not demand the issuance of a report, let alone its approval and referral to the Government, but only that, on the occasion of the exercise of the public office held, it has been possible to have knowledge of the object of litigation and form a criterion to the detriment of due impartiality, knowledge and formation of criteria that actually occurred in my case and in that of all those in the same situation as members of the Plenary Council”. Without citing her, Espejel alludes to Judge Inmaculada Montalbán, member of the CGPJ, pending her same mandate and also challenged by the appellants. Montalbán is the person to whom the president of the TC, Cándido Conde-Pumpido, has entrusted the drafting of the future sentence. Matching questions "A reading of the report, the amendment and the text of the preliminary draft, and its comparison with that of the Organic Law finally approved, is enough to show that the essential questions raised in the appeal are the same on which clarified the criteria of the report", says Espejel, referring to another of the arguments with which the Plenary rejected his abstention: that the object of a preliminary draft and that of the appeal of unconstitutionality against a law already approved »is not the same«. The passage of time, another of the arguments used by the Plenary, does not imply anything either, points out Espejel: "That said criterion was formed and made explicit many years ago does not exclude the appearance of loss of impartiality, above all, given the nature of the matter supervised to advisory reports”. Espejel concludes that his intervention in this matter does not refer to "simple statements or opinions expressed in conferences or colloquiums", but in the exercise of a public office on the occasion of which I learned and formed an opinion of what is subsequently the subject of the appeal of unconstitutionality”.
