CONTINUE
First was the appointment of Dolores Delgado as state attorney general. More recently the sweets to the leaders of the 'procés'. In just four months, the Third Chamber of the Supreme Court, in charge of reviewing the acts of the Government, has avoided going into the substance of issues that have largely marked the path of the Executive of Pedro Sánchez and that have led the opposition to challenge them. High Court.
The decision of two sections of the Third Chamber to deny the legitimacy to politicians to appeal both acts of the Government has avoided the bad experience of having to rule on these controversial decrees in a later proceeding, but at the same time it has opened a gap in the Room between those who do not want to turn the Supreme Court into a political battlefield and those who deny the risk that this legitimacy entails in a systematic and generalized way.
“The judicialization of politics is not good, but more danger is offered by the creation of parcels of immunity from jurisdictional control that, in principle, are proscribed in our Law, and even more so if they are achieved by way of an extreme demand for legitimation. parliamentarians, groups or political parties”. Is the warning that Wenceslao Orea and Fernando Román, two of the five magistrates who were part of the Chamber that dismissed at a stroke of the pen, make in their dissenting opinion, and in just 20 pages (compared to 60 in this dissenting opinion), the resources presented by parties, individual deputies and associations that questioned the clemency measures that benefited the nine direct independence supporters convicted of sedition.
In his opinion, the Chamber has rejected in a "disproportionate and anticipated" way a legitimation that, precisely, due to the seriousness of the crimes committed, should have been studied in a slow and individualized way. “Public representatives do not have a broader right to legitimacy, but they do not have less either,” warn these two magistrates. And it is that, in his opinion, the cases in which this court has denied legitimacy to parliamentarians to challenge certain actions "cannot be extrapolated to this case."
“The crimes that have been pardoned (…) are of a truly exceptional gravity, which is comparable to what the thousands of crimes that have been the subject of in Spain in the almost 44 years that have elapsed since the approval of the Constitution could have had. of 1978”, 10.650 since the collection of data on this matter began, in 1996, until now.
The magistrates disagree with discriminating against all resources, when "there is a clear regulation deficit in our legal system" about who can appeal a pardon, or what relationship should be decided with the criminal acts who claim to have active legitimacy to appeal a pardon " . And it is that the fact that this measure of grace pardons the full serving of a sentence is already a sufficient reason for "the pro actione principle to be projected in its maximum intensity".
“There is no legal coverage or conceptual justification in our legal system to require that active legitimacy be accepted only with respect to those appellants who have been expressly considered in the criminal sentence as victims, offended or harmed by the crime. The Chamber rejected the legitimation arguing that the violation of their rights as parliamentarians was not decisive for the sentence whose effects are eliminated by the pardon granted.
"All the Spanish people"
In their dissenting opinion, these magistrates maintain that "the possibility cannot be denied that there are subjects who may have had their rights or interests affected in a relevant manner and who, however, have not had any in the criminal proceeding." Especially when, as in this case, "the passive subjects of the crimes committed are each and every one of the Spanish citizens, and the objects of the sentence have such unique characteristics in their form of commission as those that were in this case. object of the sentence and, later, of the pardon”.
To this is added that the parliamentarians, political parties and even the same authority that held the highest representation of the State in the Autonomous Community, saw their mandates and functions temporarily extinguished by criminal action. Hence, the legitimacy of some of the appellants will appreciate a calmer response at a later date.
