Three magistrates accuse the progressive majority of “opening the door” to “selective and arbitrary” challenges

In his opinion, the decision of the majority led by the president, Cándido Conde-Pumpido, to uphold García Ortiz’s recusal not only represents privileged treatment for the attorney general, whose request is accepted despite being untimely, but also thatand modifies the doctrine of the Court itself not only regarding the deadlines (recusal must be promoted when there is knowledge of the fact that grounds it) but with respect to the restrictive interpretation that the TC had been making of this instrument.

In their writing, to which ABC has had access, judges Enrique Arnaldo, Concepción Espejel and César Tolosa recall that it is public that Macías has been a member of the chambers and sections of the guarantee body since August 7, 2024, when Its integration into the TC was published in the BOE so it was at that moment and not in September, when he took possession although it was the solemn act later.

Aside from the fact that “there is no precedent in the history of the Constitutional Court that the State Attorney General has challenged a judge of the Constitutional Court,” they see clearly that this challenge should have been raised when It was learned of the presentation of the question of unconstitutionality“and that includes the phase from the reception of the question and the moment of the decision on admission or non-admission.” «Requiring that, so that the prosecutor can ensure the independence of the judicial bodies, a decision has been issued admitting or not admitting the question of unconstitutionality, that is, that the legal procedural relationship has been established, would not only unjustifiably prevent the exercise of its constitutional duties, but would imply an interpretation contrary to the effective protection of the rights of citizens with which it is also entrusted,” they point out.

These magistrates remember that recusal cannot be used as a tool to “condition or influence” the development of the judicial procedure or the actions of the magistrates. «It is about preventing the challenge from becoming a form of threat or pressure on the judge.allowing the parties to invoke grounds for recusal late to alter the composition of the court depending on the evolution of the process. For this reason, in his opinion, the majority order “opens the door to behaviors of selective, strategic or arbitrary invocation” of the grounds for recusal. It cannot be accepted, on the one hand, they say, that the Court allows the State Attorney General, having knowledge of a cause of recusal, to enable the participation of a magistrate in the admission phase of the question of unconstitutionality and, on the other , which subsequently attempts to limit its actions in the following phases by promoting the recusal incident at a late moment. “Impartiality cannot be fragmented in the different stages of the procedure,” they maintain.

Apart from that, remember that Four former members of the CGPJ are part of the current TC (Campo, Montalbán, Espejel and Macías himself). «Removing such magistrates against their will for having issued legal opinions within the framework of the advisory functions attributed to said constitutional body affects the guarantee of independence with which the function of member of the Council must be carried out and may produce a discouraging effect on the exercise of the important advisory functions that said body is called upon to perform,” they say.

Until Wednesday’s order, the constitutional doctrine indicated that the judges of the TC have been appointed precisely for their ideas and opinions “expressed through the usual instruments of legal dissemination, which make up their professional career and which, therefore, “delimit the principles of merit and capacity that enable him to perform his duties.”something that in the case of Macías is ignored and a double standard is applied with respect to what the Plenary decided two years ago with Espejel, whose abstention she rejected despite the fact that she herself asked to depart from the deliberations of the abortion law when considering that It was contaminated.

The dissenting opinion recalls that Macías’ case is even more bloody than Espejel’s: first because recusal must be even more restrictive than abstention, which ultimately depends on the magistrate himself; and second because in the case of the report in which Espejal participated, this was mandatory while in the case of Macías it was not even necessary since the amnesty was processed as a bill. It was issued at the request of the president of the Senate, by agreement of the Board, at the proposal of the popular and mixed groups and its purpose was to “provide data or criteria that could enrich the legislative decision process, from a technical, legal or “specialized body that attends to the constitutional tasks that the General Council of the Judiciary has assigned.”

They criticize that the progressive majority “displaces” the court’s doctrine by introducing a “new, imprecise and diffuse weighing criterion”: the existence or not of a «sufficiently intense connection or relevant. «For the first time, an unpredictable parameter endowed with uncertainty is introduced as a canon to decide whether or not to deprive a magistrate of the exercise of his function, ignoring the restrictive doctrine of this Court.