Three magistrates from the conservative sector of the Constitutional Court (TC) have written two separate opinions in which they affirm that there is no legal or prior basis that allows the deliberations of «Losé María Macías» regarding the correct amnesty.
Therefore, they decided after this week’s constitutional plenary, with the approval of the progressive majority, to extend the decision to separate Macías from the debate on the Supreme Court’s unconstitutional issue regarding amnesty to all deliberations regarding challenges to the law of «direct or indirect participation» in two reports of the General Council of the Judicial System (CGPJ) on the norm when she was a vocal.
In the special vote signed by César Tolosa and Incepción Espéjel, both magistrates argue that Macías’ challenge should not have been expanded to all issues. They rely on the separate opinion they presented against the initial decision to separate her from one of the cases, in which they already stated that they excluded her right to exercise her position as a magistrate.
They insist that the prosecutor’s office’s request to separate the magistrates from the debates was «irregular» and led to a lack of defense for Macías; It was a «clearly untimely» request, so the process «had to be declared inadmissible»; and the causes of the challenge competed with the sets of laws.
«The perception of justice depends not only on the outcome, but also on the way it is achieved,» Tolosa and Espéjel emphasize in their writing.
In line, magistrate Enrique Arnaldo signs another separate opinion in which he ensures that there is no legal or prior basis, so the constitutional majority has agreed to exclude Macías from all amnesty deliberations.
He criticizes the desire to involve Macías, who was once removed from the issue of unconstitutionality raised by the Supreme Court, except «without hearing about their interventions and not even from the magistrate.»
Arnaldo argues that «such a premise has no basis» and it is not guaranteed that either the Organic Law of the Judicial System (LOPJ) or the Civil Procedure Law (LEC) have established that a Magistrate affected by a challenge of a procedural challenge. «There are, of course, the forecasts in the same LOPJ and LEC that allow the decision to expand the effect, as agreed in the order in which I do not agree,» he adds.
In this sense, he points out that «there is no legal provision that allows a decision like the one adopted, nor is it possible to expand the unusual and unusual extension of the effects of the appeal in the cases of this court, invoked, invoked in the order in an attempt to strengthen the argument.»
For this magistrate, the «inconsistency» of the order supported by the majority «is more clearly revealed» by extending the effects of the challenge approved on January 15 «even to two procedures in which the magistrate Macías was not challenged»; This goes «against the basic principle of justice and consistency.»
He considers that «in the greater desire to avoid Macías’ participation» in these procedures, «the constitution of the legal procedural relationship was not expected, by admitting the aforementioned processing, to separate the magistrate.»
Therefore, he insists that the decision on January 15 to separate Macías from an amnesty issue cannot be transferred «absolutely and automatically to the rest of the» similar procedures, without processing the appropriate challenge incidents.
Arnaldo understands that the decision of the progressive majority «implies a clear violation of the guarantees of a fair process and, therefore, of the right to a trial with all guarantees, in relation to the right to effective judicial protection, to the natural judge or the judge predetermined by law, to the impartial judge, to defense and equal arms.»
