The ruling of the Constitutional Court that has granted partial protection to Magdalena Álvarez in the case of the ERE It contains clear warnings to the Supreme Court to adjust to its constitutional functions, estimating that the sentence imposed in 2022 on the former counselor of the Junta de Andalucía exceeded its limits. Actions of this type—adds the guarantee body—can call into question the separation of powers. This is what the seven judges of the progressive majority say in the ruling on Álvarez, announced last week and whose content was made public this Tuesday. The dissenting votes (dissenting) of the four judges from the conservative sector, however, consider that the ruling “is equivalent to enshrining an area of impunity”, something “contrary to the Constitution”.
Sources from the Constitutional Court point out that the open doctrinal debate in relation to the ERE case anticipates what could happen when the guarantee body reviews the amnesty law for those accused on processesas well as the procedure for its preparation and approval, given the resources announced by the PP.
The socialist Magdalena Álvarez, Minister of Economy and Finance of the Junta de Andalucía between 1994 and 2004, was sentenced in 2019 by the Provincial Court of Seville to nine years of disqualification from holding public office for a crime of prevarication. The Supreme Court ratified that sentence in 2022. But the Constitutional Court has now granted Álvarez partial protection, considering that the crime of prevarication was applied improperly and that the sentence, therefore, should be substantially reduced. She also takes the opportunity to set limits on the actions of the Supreme Court.
The court states, in the legal reasoning of its ruling, that “judges, who are subject to the rule of law, have the duty to respect it whatever the judgment that its content merits.” And he adds that, if they consider that this law is unconstitutional, they can raise a question of unconstitutionality, “but outside of this case they will not be able to question its determinations and, even less, not take it into consideration.” And it warns: “When a State power exceeds its limits in the exercise of its powers, the principle of separation of powers is violated and the institutional design constitutionally provided for is altered.”
The budget laws of Andalusia – which included the items that, according to the Court of Seville and the Supreme Court, gave rise to the ERE fraud – were never appealed. The protection granted to Magdalena Álvarez is based, in part, on this. The ruling recalls that the former counselor was convicted for her participation in the preparation of the preliminary drafts and budget bills for the years 2002, 2003 and 2004. And that is precisely what it refutes: “From the constitutional perspective,” says the body of guarantees, “it cannot be considered that the decisions adopted in the procedure for preparing the budget bill can be classified as resolutions ‘relapsed’ into an ‘administrative matter’.” That is to say, prevarication cannot be committed in the drafting of a law, but only in an “administrative” decision.
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The ruling goes even further, emphasizing that “the content of the preliminary drafts and bills cannot be subject to control by any judicial body.” Seeking this control means “ignoring” constitutional jurisprudence and failing, ultimately, to comply with the “principle of criminal legality.” The Constitutional Court thus maintains that said principle was violated first by the Provincial Court of Seville and then by the Supreme Court.
The laws, the Constitutional Court insists when referring to the Andalusian budget regulations, can have “any content”, and “the jurisdiction (the courts) can react against the legal form that results from those intentions, but the intention itself and its debate or discussion are immune in a democratic society from all jurisdictional control, especially if the debate takes place in Parliament.” Whoever violates these principles is “altering” the “constitutionally and statutorily established system of institutional relations,” he concludes.
The ruling establishes, in summary, that jurisdictional control of the law-making process “must be limited only to a formal defect and only in cases in which the infraction committed could have affected the will of the Chamber.” “The content of the preliminary draft or the project, as such,” he adds, is “uncontrollable” and over it “no control other than political control can be exercised.” The prerogative of the executive branch to present bills, continues the Constitutional Court, has “a different legal nature” from those acts adopted by the Government “in the exercise of its administrative functions,” which are “object of control by the courts.” . That is to say, a Government can prevaricate when making an administrative decision, but not when drafting a bill, regardless of its content.
Dissenting judges see “impunity”
The four judges from the conservative sector disagree with these arguments and censure the reproaches directed by the Constitutional Court to the Supreme Court. Three of these four magistrates – Enrique Arnaldo, Concepción Espejel and Ricardo Enríquez – share the same dissenting opinion, which begins by stating: “We must refer to the tone, in our opinion reprehensible, that the ruling of this court uses to disqualify the actions of both the Court Supreme Court as well as the Provincial Court of Seville.” These allusions to both courts, they add, imply “severe and unnecessary” criticism.
On the merits of the issue, the dissenting judges attack the thesis that the bills prepared by the Government should be excluded “from all judicial control”: “[Eso] It is equivalent to consecrating an area of impunity that does seem contrary to the Constitution,” they point out. They maintain that Magdalena Álvarez was convicted because the Andalusian Government’s aid to companies in crisis was not given “in accordance with principles of publicity, free competition and objectivity”, and that the failure to comply with these principles was reported by the Board’s auditor. In view of this, the magistrates of the conservative sector point out, Álvarez and other officials “devised as a solution to evade these controls” to include a new item in the budgets “titled in an indeterminate manner” and “disguised” as a credit transfer, “evading this way the required controls.”
The dissenting vote of the fourth magistrate, César Tolosa, states that “the Government and the Administration cannot hide behind parliamentary immunity to flagrantly and blatantly fail to comply with the legally established procedure in the preparation of the bill to pursue illicit purposes.” Tolosa defends the actions of the Supreme Court and recalls that, in its 44 years of existence, the Constitutional Court had until now only granted three protections based on the violation of the principle of criminal legality. “None of these sentences were issued or confirmed by the Supreme Court, which, as the highest jurisdictional body at all levels, is the highest jurisdictional authority in the role of interpreting and applying current legislation,” he emphasizes.
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