The parliamentarian of Unidos Podemos Alberto Rodríguez should not lose his status as a deputy despite the conviction of the Supreme Court for attacking a policeman in 2014, as PP and Vox have demanded since the sentence was known last week. That is the reading made by the legal services of the Congress of Deputies. According to the report to which this newspaper has had access, despite his sentence to 45 days of commutable prison for a fine of 540 euros and the deprivation of passive suffrage, Rodríguez can keep his seat.
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The lawyers point out that the deprivation of the right to passive suffrage does not affect the status of deputy, which was previously acquired. “It should be emphasized that the accessory penalty of special disqualification for the right to passive suffrage, provided for in article 44 of the Penal Code, deprives the offender of the ‘right to be elected to public office’, for the duration of the sentence , without such deprivation entailing the disqualification with respect to positions already obtained “, they point out in their text.
In the report they add that the electoral regime law (LOREG) indicates that “those sentenced by final sentence, to custodial sentence, are ineligible for the period that the sentence lasts,” so it would be understood that, “once the conviction is under penalty of imprisonment, there is a supervening cause of incompatibility that would entail the loss of the status of deputy for Mr. Rodríguez “.
However, the lawyers recall that “it is necessary to emphasize that the prison sentence has been replaced in the sentence by the penalty of a fine in application of article 71.2 of the Penal Code, which provides for this substitution in the cases of penalties. imprisonment for less than three months, as is the case in the present case. ”
The Supreme Court did not contemplate the suspension “expressly”
As they explain in their text, there are for all these reasons “several arguments that support the thesis that the substitution produces a change in the main sentence”, so that the application of the article of the LOREG that supposes the suspension as a deputy of the leader of United We Can. “In the first place, the literal of the execution order, which does not impose any obligation for the Chamber and, in particular, does not foresee the deprivation of the position,” he recalls. “If it had been appropriate, it would have been expressly and exhaustively contemplated by the Court, either in the sentence, or in the order of execution of the same,” he adds.
Likewise, when analyzing the matter from the perspective of Articles 21 and 22 of the Regulations of Congress, “since they establish as a cause for suspension or loss of the status of deputy, respectively, that a final conviction shall constitute it or that the incapacitation of the deputy by final judicial decision has been declared “, the lawyers remember that this” is not contemplated, neither in the ruling of the sentence nor in its execution order.
Secondly, the legal services of Congress indicate that the very configuration of the substitution of the prison sentence for a fine, “is no longer a form of execution of the sentence but of application of the same, in a way that would transform to the main penalty from its origin, being foreseen in the sentence itself and not in a derivative way as an effect of the same in the phase of its execution, so that when the LOREG would apply, the substitution of the sentence has already operated ” .
The lawyers also point out that, in accordance with the sentence, “the judge’s will also seems to be to minimize the scope of the reproach, since, providing article 71.2 of the Penal Code that the substitution can be made by a fine, work for the benefit of community or permanent location, the Court, when setting the substitute penalty, has decided to opt for the penalty of a fine “. “Ultimately, since it could have imposed a custodial sentence, which would now have been the determining factor in the cause of ineligibility contemplated in article 6.2 a) of the LOREG, the Court did not do so,” they emphasize.
“It is not possible to derive a criminal consequence that affects the condition of deputy”
All in all, the lawyers conclude that the Supreme Court ruling “does not lead to any extra-criminal consequence that affects Mr. Rodríguez’s status as a deputy, not even the cause of incompatibility that has occurred in section 2 in relation to section 4 of article 6 of the LOREG, nor any of the assumptions that, in application of articles 21 and 22 of the Congress Regulations, would lead either to the suspension of the rights, prerogatives and duties of the deputy, or to the loss of the status “.
The Supreme Court condemned the deputy of United We Can, Alberto Rodríguez, to 45 days in jail last week for kicking a policeman in a demonstration in La Laguna in 2014. The judges, with two of them against opting to acquit him, endorsed the version of the agent and established that he will have to pay a fine of 540 euros instead of serving the prison sentence.
The criminal court accepted the version of the National Police agent who was part of the security system that day. Thousands of people marched through La Laguna protesting against the LOMCE while Minister José Ignacio Wert visited a cathedral in the city. The riots occurred at the door of the cathedral when several protesters removed the security fences and clashed with riot police.