The agreement of the General Council of the Judiciary (CGPJ) against the amnesty law, approved before the text of the bill agreed between the PSOE and the Catalan independence parties was even known, is going to reach the Criminal Chamber of the Court Supreme. The Sumar parliamentary group has registered this Friday a complaint for prevarication against the 10 conservative members of the body, all proposed by the PP in 2013 to be part of the CGPJ, considering that they acted in an “illegal and arbitrary” way to reach an agreement that exceeds its powers. The complaint is directed against the nine members who signed the agreement and against the alternate president of the Council, Vicente Guilarte, who although he voted blank, called the session and later wrote a document explaining his position. After presenting the complaint, Enrique Santiago, parliamentary spokesperson for IU in the Sumar Group, has described this CGPJ agreement as “serious political interference” and has framed it within “a strategy previously decided on in the political sphere,” in reference to PP and Vox.
The resolution approved by the CGPJ, which in a few days will complete its expired mandate for five years, declares that the amnesty “means degrading and converting” the rule of law “into an object of marketing at the service of the personal interest” of the President of the Government, Pedro Sánchez, and shows the “intense concern and desolation” of the body for what the grace measure represents “degradation, if not abolition, of the rule of law in Spain.”
The group led by Yolanda Díaz states that the plenary session in which that resolution was voted, held on November 6, was convened “outside the legal provisions and with an object that exceeds the powers of the CGPJ.” “The defendants themselves – who are the ones who drafted and signed the agreement – evidence this when they state in the agreement that ‘this declaration is not intended to replace the report that is avoided by the processing route chosen for the legislative initiative, but is issued before the impossibility of formulating it’. That is to say, in the agreement itself they recognize both their manifest lack of competence to issue the administrative resolution that constitutes the agreement, and their deliberate desire to evade it,” states the text that will be registered before the Criminal Chamber.
The complaint attributes to the ten members proposed by the PP a crime of administrative prevarication, typified in the article 404 of the Penal Code, which establishes: “The authority or public official who, knowing of its injustice, dictates an arbitrary resolution in an administrative matter, will be punished with the penalty of special disqualification for employment or public office and for the exercise of the right to vote. passive for a period of nine to fifteen years.” Although Guilarte did not adhere to that agreement, Sumar attributes the crime of prevarication for having knowingly dictated an unjust resolution, and a necessary cooperator in the crime of prevarication incurred by the members who signed the agreement for having convened, at the request of their colleagues , an extraordinary plenary session to debate that resolution.
The document states that the agreement approved by the CGPJ meets the requirements of the crime of prevarication. On the one hand, it is a resolution issued in an administrative matter. Sumar argues that the CGPJ agreements are regulated in articles 629 et seq. of the Organic Law of the Judiciary (LOPJ), which in its article 636.1 establishes that they will be immediately executive; and in 638.2 that “the agreements of the Plenary Session and the Permanent Commission will put an end to the administrative route and will be appealable before the Contentious-Administrative Chamber of the Supreme Court.”
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Furthermore, according to the complaint, it must be ruled out that it is an act protected by freedom of expression because the agreement does not express the personal opinion of the members who sign it, but rather takes the form of an institutional act or declaration, and because The CGPJ is not the holder of the right to freedom of expression. They also consider that the Council’s resolution was “arbitrary”, the other requirement for this crime to exist. And in this case it was arbitrary, Sumar maintains, because the plenary session lacked the jurisdiction to dictate it, since dictating this type of agreement is not among the functions entrusted to the body.
The complaint also argues that the members who subscribe to the approved resolution assume the task of interpreting the Constitution, which only corresponds to the Constitutional Court, and intend to “influence public opinion, judicial activity and interfere in the development of a process.” legitimate political party that must lead, where appropriate, to the investiture of a new President of the Government (thus violating the separation of powers that the defendants claim to defend).” “Nor do we find in European regulations any precept that justifies a Council of Justice deciding to exceed its legal powers to interfere in the scope of another power of the State and remove powers from the body in charge of analyzing whether a legal provision is contrary to the constitutional text” , points out the text.
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