The right maneuvers in the Constitutional Court to complicate the investiture of Sánchez

The decision was made in the so-called Vacation Chamber —which handles urgent matters during the month of August— thanks to the votes of two of its three magistrates: the conservative Concepción Espejel, who serves as president of this Chamber and whom Puigdemont tried to challenge due to his closeness to the PP, and César Tolosa. The progressive Laura Díez, who voted against, presented a dissenting vote in which she criticizes the “urgency” of this decision and questions that the court deviates from the criteria followed in similar cases.

Until now, the resources related to the process had been systematically admitted and later analyzed by the plenary session, where its 12 members sit, and not by a Chamber such as the Vacaciones Chamber, made up of only three magistrates. Hours after this decision was made known, the Constitutional Prosecutor’s Office announced that it will challenge it, which will force a debate in plenary.

It is, in any case, the latest chapter in a series of movements that the political and judicial right has led more or less recently to hinder the action of the coalition government. Last fall, the conservative majority in the Constitutional Court —with Espejel among its members— also made an unusual decision by paralyzing the processing of the legislative reform that was going to force the renewal of magistrates with their mandate expired and the establishment of a progressive majority.

In this case, the maneuver occurs in the midst of negotiations between the PSOE and Junts and at a time when the Socialists have tried to build bridges with the pro-independence party since Puigdemont’s party has the key to a hypothetical investiture of Sánchez.

After knowing the decision, Junts’ response was immediate. “For many years the work of the TC has been to legally decorate the State strategy against the independence movement. And that strategy does not close for vacations”, tweeted Jordi Turull, one of the leaders convicted and pardoned for the independence referendum of 1-O and current general secretary of Junts. “August. Through the back door ”, wrote, for her part, Gemma Geis, party leader in Girona and deputy mayor in that same city.

Constitutional sources this Wednesday described as “surprising” the fact that the decision on this appeal was made in August and outside the ordinary system of distribution and resolution of issues. That is, raising it to the plenary session where the progressive sector does have a majority for the first time in a decade.

In fact, the decision has a strong dissenting particular vote from the only magistrate who voted against, the progressive Laura Díez. The magistrate disagrees with the majority, considering that the Vacation Chamber should not have resolved on this appeal, since it did not consider the decision on the suspension of the very precautionary measures requested to be urgent, and on the understanding that, where appropriate, the appeal for amparo should have been admitted.

In their appeal, Puigdemont and Comín alleged the violation of several fundamental rights, understanding that they are protected by parliamentary immunity due to their status as MEPs. Faced with this, the order affirms that the Vacation Section is “competent” to resolve this appeal precisely because it requested the precautionary suspension of a judicial decision that agreed to the deprivation of liberty through a national arrest warrant.

Espejel, a magistrate close to the PP

One of the magistrates who signs the resolution is Concepción Espejel, who also acts as president of this Holiday Room. She is considered a judge close to the Popular Party to such an extent that she had to withdraw from several processes related to the corrupt Gürtel plot. The National Court made that decision at the end of 2015 when it was going to form the court that was going to judge the piece of the case baptized as ‘Epoca I’ together with Enrique López, who was Minister of Justice in the Madrid government of Isabel Díaz Ayuso.

She was also later removed from the court that judged the ‘box B’ of the PP. Years before, in 2014, the then general secretary of the conservatives, María Dolores de Cospedal, had pronounced the phrase that made her affinity with the magistrate clear: the former minister also referred to her as “dear Concha” when she imposed the Cruz de Saint Raymond of Penafort. Espejel reached the Constitutional Court in October 2021 when the coalition government agreed with the PP to renew the four magistrates who were still in the extension since November 2019.

The other conservative magistrate of the Vacation Chamber is César Tolosa. He was appointed a member of the Constitutional Court in December 2022 after being proposed by the conservative sector of the General Council of the Judiciary (CGPJ). Tolosa ended up in the guarantee court from the third chamber of the Supreme Court, which he presided over since September 2020, after the controversial mandate of Luis María Díez-Picazo. Tolosa was appointed with 18 votes out of a total of 21 in plenary session, well ahead of the progressive candidate, Pilar Teso. He was a Supreme Court magistrate since 2014 after presiding over the Superior Court of Cantabria for a decade.

Laura Díez, for her part, has been a professor of Constitutional Law at the University of Barcelona since January 2020, a center where she worked as a teacher and also held senior positions. Outside the university, she was the general director of Constitutional Affairs and Legal Coordination of the Ministry of the Presidency between 2020 and 2022, first with Carmen Calvo and later with Félix Bolaños. Previously, between 2002 and 2004, she was an advisor to the Generalitat for the reform of the Statute of Catalonia.

The precedent of Torra’s disqualification in full investiture

This latest movement of the judicial right evokes what happened after the electoral repetition of 2019, when Sánchez was about to be invested. Then, the Central Electoral Board decided in a close vote —by a single vote— to remove Quim Torra from his position as a deputy in Parliament, which implied his dismissal as president. The body in charge of ensuring the cleanliness of the electoral processes made this decision without waiting for the Supreme Court to rule on his sentence to a year and a half of disqualification for the crime of disobedience, which was not yet final at that time, and just a few days after the debate. investiture in which the Socialists risked continuing in Moncloa.

In the then acting government, this decision was interpreted as a destabilizing attempt in the face of that debate, which took place only four days after the pronouncement of the Central Electoral Board. However, on that occasion the Junts votes were not necessary for the election of Sánchez, as is the case now. Finally, the socialist candidate was elected with the support of his party, Unidas Podemos, PNV, Más País, Compromís, Teruel Existe, Nueva Canarias and BNG and the abstention of ERC and Bildu. Puigdemont’s party voted against.

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