The Constitutional Court has decided to suspend the processing of the 16 appeals filed by the autonomous communities – 15 from the PP and one from the PSOE – against the amnesty law. Before deciding whether to admit them, the court will study over the next two months whether the appeals should be rejected because the law only provides that the communities can challenge regulations that affect their powers. A group of lawyers from the Constitutional Court will prepare a report, which will be presented to the magistrate Laura Díez, in charge of the first case that came from an autonomous community, the one raised by the Cortes of Aragon. The rapporteur Díez will present to the plenary a proposal for a resolution on whether to admit or not the appeal of the Aragonese assembly, and the approved doctrine on the problem of the legitimacy of the autonomous institutions will be applied to the rest of the cases.
For the time being, all appeals from the autonomous communities have been completely suspended. The group of lawyers formed to study the problems described will focus their analysis on the provisions of the Constitution and the Organic Law of the Constitutional Court in this matter, together with the jurisprudence of the guarantee body itself. The commissioning of this preliminary report means that the decision on admitting these appeals, now paralyzed, cannot be taken before next November. The doctrine that is approved will also influence in the future all cases in which an autonomous community attempts to question the decisions of another, even if it does not affect a matter related to its powers.
The need to thoroughly study the legal role that the autonomous communities can play with respect to the amnesty law was evident from the moment the legal deadline for filing appeals closed on the 11th. In the end, 16 autonomous institutions, including governing boards and parliaments, 15 from the PP and one, Castilla-La Mancha, from the PSOE, have appealed. The court admitted the Supreme Court’s initiative on the same day that the deadline for appealing the law closed and, in parallel, a two-month deadline was set for the task entrusted to the group of lawyers who will carry out the preliminary report on the legitimacy of the autonomous institutions to appeal a regulation such as the amnesty, which is of a criminal nature.
Article 162 of the Constitution grants the general possibility of presenting appeals of unconstitutionality to autonomous governments and parliaments. But it refers to the organic law that regulates the functioning of the Constitutional Court, which specifies the conditions for this type of initiative. Article 32 of said legislation only attributes full legitimacy to present appeals of unconstitutionality to the Government – through its president – the Ombudsman, and 50 deputies or 50 senators. The aforementioned precept then provides that “for the exercise of the appeal of unconstitutionality against the laws, provisions or acts with the force of law of the State that may affect their own area of autonomy, the executive collegiate bodies and the Assemblies of the Autonomous Communities are also legitimized, after an agreement has been adopted for this purpose.”
The importance of this clarification is that it underlines that the legitimacy of the autonomous institutions refers to matters “that may affect their own area of autonomy”.
The Constitutional Court’s lawyers will now have to analyse whether this restriction should operate in absolute terms, or whether some exceptions are possible from time to time. Sources at the Constitutional Court admit that there may be an intense debate on the matter, and explain that there are three possible solutions. One, that the appeals of the autonomous communities be admitted for processing, understanding that they meet the requirement of having legitimacy to do so. Two, that they be rejected from the start because it is considered otherwise, that is, that the organic law of the court does not authorise them to present appeals of unconstitutionality in matters outside their competences. The consulted sources emphasise that this thesis is very solid in this case, since what the Constitutional Court is going to analyse is a law that belongs to the chapter of criminal matters, an issue over which the autonomous institutions lack competence, since in this area the legislation is state-owned. Finally, there is a third possibility, which consists of admitting the appeals of the autonomous communities for processing with express mention that the problem of their legitimacy or not to intervene in this case will be decided in the judgment that will end the procedure.
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Sources at the Constitutional Court say that this option is the one with the best chance of success, because it would avoid opening a conflict with the autonomous communities, which would still not have participated in the process against the amnesty law if the final ruling is reduced to establishing that they lacked legitimacy to appeal, without further consideration of their arguments. This solution would avoid having to make successive pronouncements with repetitive arguments on appeals that are fundamentally very similar to those presented by the PP as a parliamentary group.
The Constitutional Court will focus its next meetings on studying the question of unconstitutionality presented by the Supreme Court. The ruling issued in this matter will set the line to be followed in the rest of the resolutions, because there are many points of connection between the challenges raised. Along with the Supreme Court’s, there are three other questions of unconstitutionality raised by the High Court of Justice of Catalonia (TSJC). In essence, all of them question the law with the main argument that it violates the right to equality and the principle of legal certainty.
The PP’s appeal will be analysed in the second instance, and will not be heard in the plenary session that the court will hold in the last week of this month. The PP has been given a period of 10 days to correct a defect in its challenge and to record the willingness of the deputies who have provided their signatures without specifying it to appeal the law. This is an unavoidable formal requirement, but until it is fulfilled, the challenge of the Popular parliamentary group will not be seen in the plenary session for its admission to process. This means that it will not be included in the corresponding agenda until next October.
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