The Permanent Commission of the General Council of the Judiciary (CGPJ) has cleared up the mystery in relation to the composition of the court of the First Section of the Court of Seville that must dictate the final sentence of conviction of the former Andalusian presidents Manuel Chaves and José Antonio Griñán in the ERE case, after the Constitutional Court (TC) corrected the criteria established by said court and the Supreme Court.
The decision-making body of the judges has responded to the urgent query made by the governing chamber of the Superior Court of Justice of Andalusia (TSJA) reporting that Judge Encarnación Gómez, currently assigned to the Provincial Court of Alicante and in the situation administrative voluntary leave, has the obligation to join for the issuance of the new resolution in this macro-corruption case. She and the only magistrate of the original court who is currently active, Pilar Lorente, would write the final sentence.
However, the Permanent Commission points out that it is up to the governing body of the TSJA to urge the magistrate to reinstate. The consultation is of a jurisdictional nature and the Organic Law of the Judiciary prohibits the CGPJ from issuing instructions on the application and interpretation of the ordinance legal, they specify in the note released by the Press Office of the Judiciary.
The governing body of the judges removed this matter from the agenda of the meeting held on October 22 with the intention of study it in depth and propose all possible alternatives. The decision was postponed until the next session of the Permanent Commission that met this Tuesday. One of the possibilities that was on the table was having to repeat a trial that lasted a year and in which 120 witnesses participated.
The Permanent Commission responds to the government room of the TSJA that «the obligation remains for the magistrate to attend the formation of a Chamber for the issuance of the new sentencein accordance with the provisions of art. 194.2.3 of the Civil Procedure Law. Said article stipulates that “in matters that must be decided after a hearing or trial has been held, the drafting and signing of the resolution, in the single-person courts, or the deliberation and voting, in the collegiate courts, will be carried out, respectively, by the judge or by the magistrates who have attended the hearing or trial, even if after this they have left those to exercise their functions in the court that hears the matter.
This rule has its legal exceptions. Thus, magistrates who “have taken up a public position or profession incompatible with the exercise of jurisdictional or judicial functions are exempt from issuing the new resolution.” went on voluntary leave to present themselves as candidates to popularly elected positions. This would not be the case of Encarnación Gómez, who was granted a leave of absence to take care of a family member, as explained by the TSJA.
The TSJA raised an “urgent consultation” to the Judiciary to interpret whether or not the judge on leave “may or may not be part of that court.” There was no “obstacle” for him to be able to “enter the court” of the First Section of the Provincial Court of Seville and, through a majority situation, issue the complementary ruling required by the Constitutional Court in relation to the specific procedure for financing irregular employment regulation files (ERE) and arbitrary aid. In his opinion, the incorporation of the judge on leave could allow the court to form a majority and, in this way, assume the new pronouncements with guarantees.
Of the original court, the only one currently working is the Seville Court. Judge Pilar Llorente. The speaker and president of the room, Juan Antonio Calleretired early and is now practicing law. The judge, Encarnacion Gomez Caselleshas been on voluntary leave to care for a family member since last July 22 and his intention is to use it up.
The Constitutional Court corrects the Court and the Supreme Court
The TC validated the arguments of the defenses in their appeals for protection and determined that The procedure established to provide aid between 2002 and 2009 could not be considered illegal.since the Socialist Executive began to include the item for the ERE fund in the regional Budget laws approved annually by the Andalusian Parliament. Instead, maintains the prevarication in those previously granted (between 2000 and 2001) and embezzlement when the destination deviated from the purposes provided for in the 31L program.
The magistrates of the guarantee body, divided – by seven votes in favor of the progressive sector and four against the conservative bloc – agreed partially annul the sentences imposed on the former Andalusian presidents Manuel Chaves and José Antonio Griñánamong others convicted of crimes of prevarication and/or embezzlement in the so-called political piece of the summary. In turn, the TC urged the Seville Court to issue new rulings that respect the violated fundamental rights – criminal legality and the presumption of innocence -, setting the counter to zero in the specific aid procedure.
The guarantee body thus provided a corrective to the largest case of political corruption in Spain, in which 680 million euros were distributed in a clientelistic and arbitrary manner in aid between companies and entities for a decade by the Junta de Andalucía during the PSOE stage.
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