High tension between the Supreme Court and the Constitutional Court

MadridWe live in such a turbulent time that we often miss the details of conflicts. There are so many fronts to deal with, so many fires to focus on, that we don't have time to think about the origin and causes of the fire. And things get complicated – now ignoring what is happening. Donald Trump earthquake– the days when everything seems to happen in the courts. This encourages political leaders to rely on judicial processes to decide their strategies. Just think, if not, how and why the governments of Felipe González, José María Aznar and Mariano Rajoy fell. Politically charged judicial processes can always have devastating effects.

It is for this reason that politicians are so quick to influence the world of justice. We see this again in the impossibility of renewing the presidencies of the chambers of the Supreme Court. It is practically certain that there will be no agreement, especially as regards the criminal chamber, which deals with the processes that affect those with immunity, which are all the most relevant political leaders, starting with the members of the government and the parliamentarians. This chamber is no longer presided over by Manuel Marchena, who has exhausted two consecutive five-year terms of office and has been replaced by the most senior magistrate, Andrés Martínez Arrieta, a man of discreet manners, with little tendency to look out of the window. This magistrate has two years left to retire. In all probability, the judicial right will allow him to finish his career in the judiciary as president of the criminal chamber. Not because he is one of their own, which he is not, but because the right wants to avoid at all costs that the candidate of the progressives, Ana Ferrer, obtains the position. The reasons are diverse, but above all of an ideological nature, related to the dissenting vote that he made against the sentence that the Supreme Court issued on the fraud of the ERE of Andalusia.

That Supreme Court ruling was thoroughly reviewed by the Constitutional Court, which, in practice, annulled the convictions of the main suspects, including the two former Andalusian presidents, Manuel Chaves and José Antonio Griñán. The correction was received by the Supreme Court as an undue rectification, interpreting that the Constitutional Court had assumed powers to assess facts and evidence that did not correspond to it. Since then, the tension between the two courts has been growing, encouraged from the political arena. The episode has had consequences, because it has put at risk the relations between the Supreme Court and the Constitutional Court at a delicate moment, when the latter seems about to correct the former again, this time with regard to the amnesty law and its fit in the Constitution. And there is still another chapter in sight, that of the possible appeal for protection by the Attorney General, Álvaro García Ortiz, which could be presented to the Constitutional Court against the Supreme Court's resolution that has endorsed the seizure and analysis of data from his mobile phone and other devices. The adverse reaction in the Supreme Court is foreseeable.

Cracks

In this fuel-soaked scenario, a complaint filed by Hazte Oír and Vox reached the Supreme Court, taking advantage of the legal instrument of popular action to promote criminal action. It sought to prosecute the magistrates who voted on the ERE sentence for the crime of prevarication. The prosecutor of the case, Consuelo Madrigal –one of those who intervened in the case against the independence leaders– reported against the admission of the complaint. The Supreme Court expressed the same criteria in an order that greatly worried the Constitutional Court. The resolution said that the guarantee body lacks "carte blanche" to resolve the cases presented to it "without legally adhering to the issue."

The decision was taken unanimously by the five members of the Supreme Court's admissions chamber, formed by Manuel Marchena as president, Andrés Palomo as rapporteur, and the magistrates Antonio del Moral, Vicente Magro and Susana Polo, the latter from the progressive group. The concern grew with a new complaint, filed by the entity Atando Cabos, which presented itself as an "association against prevarication." The Supreme Court also rejected it, with a majority that included two judges from the progressive sector, Ana Ferrer and Javier Fernández. The other three judges were Manuel Marchena –president–, Andrés Palomo and Vicente Magro, as rapporteur. Both resolutions had a similar argument. The first, which set the path, said that the Constitutional Court lacks "carte blanche" to resolve the cases that are presented to it "without legally adhering to the issue."

The rapporteur of the ruling, judge Andrés Palomo –who also attended the 1st of October case– specified that one could only speak of alleged prevarication of members of the Constitutional Court in the case of resolutions and sentences that were "purely and simply the product of their will, turned unreasonable." The Supreme Court acknowledged the fact that Article 4 of the Constitutional Court's organic law provides that the decisions of this court "may not be judged by any jurisdictional body of the State." It added that, therefore, there is a "narrow path" to act against the Constitutional Court, and that it could not be done as long as this court acted "in an argumentative manner, supported in terms of constitutional legality."

The majority group of the Constitutional Court, made up of seven progressive judges, considered that this type of resolution opened a dangerous gap through which the extreme right could sneak in to try to destabilize the guarantee body with one or more complaints against its president, Cándido Conde-Pumpido, and other members. There are appeals filed against the inadmissibility of this first complaint due to the ERE ruling. It is hoped that the Supreme Court will take advantage of this to heal the wound and put an end to the situation of high tension with the Constitutional Court. We'll see. But for now the media and political right have dipped their toes in the matter, taking the Supreme Court's ruling as a call to act against the Constitutional Court. Feijóo has said that "the Constitutional Court is a political court at the service of the government, and its judges are not exempt from prevarication." And they say he was just as cool. I had a friend who in these cases preferred to shout "war on the capital, until it is ours."