Wednesday, October 5

Constitutional and Court of Accounts, two expired conservative outposts and involved in controversy

The General Council of the Judiciary (CGPJ) holds the record of institutional interim status, with almost three years of expired mandate, but it is not the only body pending renewal. This Thursday, the PSOE and the Popular Party announced an agreement to unblock the negotiations around the Constitutional Court and the Court of Accounts, two bodies that have issues of maximum public relevance in their hands, such as appeals against the second state of alarm or the law of abortion or the millionaire embargo on the leaders of the procés.

The Government retakes contact with the PP and calls on Casado to renew and all the constitutional bodies without vetoes

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The former has a third of its members with the mandate expired for almost two years and in recent months it has become a field of political victories for Vox, which has found in the Constitutional the triumph that it has not achieved with its arsenal of complaints in ordinary justice. The second, caused the umpteenth clash between PP and PSOE for the renewal of the constitutional bodies: those of Casado refused to sit down to speak after the case about the economic bill of the procés reached that court. With a conservative majority and years of controversy over his hiring, he is about to serve three months in office.

The Constitutional Court has a system of renewal by blocks that prevents its entire composition from changing suddenly, as happens in the CGPJ or the Court of Accounts. Each of its twelve members has a nine-year term and is renewed three at a time every three years. In addition, if one of these renewals is delayed, the time that a magistrate has been in excess is subtracted from the time that his successor will be. In the absence of knowing the details of the agreement reached between PP and PSOE, at least they will have to renew four magistrates who remain in the extension since November 7, 2019.

They are four heavyweights of the plenary session. President Juan José González Rivas, Vice President Encarnación Roca and Justices Andrés Ollero and Fernando Valdés. Two judges with a conservative profile and two with a progressive profile, taking into account that Valdés has no longer been part of the Constitutional Court for months, although he has not been replaced: he is pending trial accused of assaulting his wife in an episode of sexist violence in his address last August.

The renewal, therefore, does not reach the entire plenary session, but it will have important implications in the deliberations and decisions made by the court of guarantees. In the first place, because the renewal of González Rivas also implies a change of presidency, which requires a simple majority if an absolute majority is not reached in a first vote. Here the Popular Party, which would retain the majority, can choose between conservative profiles such as Pedro García-Trevijano or Ricardo Enríquez, both appointed at the proposal of the PP. The first will leave the court in less than a year and the second in 2026. The presidency not only allows to break ties in complicated deliberations but also to mark the step of decisions and deliberations.

Second, the renewal of these four members will have implications because, if the current proportions are maintained, it means the incorporation to the plenary sessions of a progressive profile now lost after the resignation of Fernando Valdés. The Popular Party would retain a majority of seven magistrates proposed according to its criteria against five of the PSOE, but the votes could be tighter at a time when issues as relevant as the constitutionality of the first confinement have been decided by a difference vote. Conservative magistrate Alfredo Montoya is also awaiting reinstatement after a serious health problem.

Pending decisions, acting decisions

In the last two years the Constitutional Court has made far-reaching decisions with a third of its members in office and far from unanimity. From endorsing the convictions of the leaders of the independence process to endorsing the Citizen Security Law through the appointment of Rosa María Mateo at the head of RTVE. His most relevant decisions on the management of the Government in the pandemic have come in recent months, estimating Vox resources against the first confinement and against the closure of Congress during the first weeks and endorsing the reviewable permanent prison.

It remains to be seen how this renewal affects one of the most important issues pending deliberation and judgment by the Constitutional Court for more than a decade: the 2010 Abortion Law, which was then appealed by the Popular Party. The person in charge of the presentation is Andrés Ollero, one of the magistrates who will be renewed in the plenary session of the Congress at the end of this month of October, which makes it almost impossible for him to defend his presentation, which will have to change hands.

The next renovation

The agreement announced by PSOE and PP, awaiting its materialization, buries the hatchet in the Court of Accounts for up to nine years, but is a prelude to the next chapter in the Constitutional Court. The mandate of four other magistrates expires in June 2022: they are the conservatives Pedro García-Trevijano, Santiago Martínez-Vares and Antonio Narváez along with the progressive Juan Antonio Xiol. The following renewals are already planned for almost five years and by then, if there are no changes in the electoral calendar, a new general election will have been held with a new correlation of political forces.

The newly arrived magistrates after the next renewal, according to the law, will have the shorter mandate and would last just over seven years for the time in which the four outgoing have been in the position more. A renewal with two conservative magistrates and two progressives would also mean a good institutional deal for the Popular Party: they would maintain a conservative majority in the Constitutional Party, with a progressive majority in Congress supporting the current executive of the PSOE and United We Can.

The conservative majority of the Court of Accounts

In the Court of Accounts, the last process of renewal of its members took place in July 2012, when Mariano Rajoy ruled with an absolute majority. There were not even parties like Podemos, Vox or Ciudadanos then. The PP, with 186 deputies, managed to impose a conservative majority increased in 2018 by the resignation of former PSC senator Lluís Amet, who has not been replaced. The PP, despite now having 89 of the 350 seats in Congress, has a comfortable majority inherited from that time: seven councilors compared to four elected at the proposal of the PSOE, one of them agreed with the IU. Among them, the former minister of the PP Margarita Mariscal de Gante —who will dictate in the first instance the sentence on the foreign action and the procés— or Manuel Aznar, brother of the former president of the Government.

The twelve councilors of the Court of Accounts are elected by Congress and the Senate – six each – by a three-fifths majority among chartered accountants, magistrates, lawyers or economists with more than 15 years of practice. In practice, however, it is an institution highly influenced by the two major parties, PP and PSOE, which have been agreeing to share positions and place professionals from their orbit in this body.

Despite its name, the Court of Accounts is not a court and is not subject to the Judiciary either. It is not made up of magistrates but of politically appointed advisers and cannot decree jail sentences but it can demand millionaire fines even if the convicts have not sat on the bench in the ordinary courts for embezzlement.

Since 2018 the presidency has been in the hands of María José de la Fuente, niece of former Francoist minister Licinio de la Fuente, appointed at the proposal of the PP. His predecessor in office, former UCD MP Ramon Alvarez de Miranda, is the son of the former president of Congress and Ombudsman. Although the body is renewed every nine years, Álvarez de Miranda has been with the institution for thirty years, the last twenty as a director. He was not the only member who repeated a mandate in the last renewal. Felipe Garcia Ortiz, proposed by the PSOE, he has also been a counselor since 2001; like the conservative Javier Medina Guijarro, who is an official of the Superior Body of Lawyers of the Court of Accounts and has developed his entire professional career in the institution, where he has held different positions since 1979.

The Court of Accounts is entrusted with two functions: the control of public funds, with audits of the accounting of political formations, their foundations and public bodies, which do not go through the magnifying glass of the Tax Agency unless there is intervention. from a judge if there are suspicions of crime; and an accounting jurisdiction for the prosecution of those who cause impairment in public funds.

Within this prosecution task, the most relevant issues that you are currently dealing with are two accounting judgments related to the process. The oldest is on the expenses made for posters, envelopes and ballots of the 1-O referendum, for which he demanded bonds of 4.1 million euros from 26 former leaders and officials of the Government of Carles Puigdemont. The other procedure concerns the funds dedicated to the international promotion of this consultation. This same Thursday, the investigating delegate rejected the endorsement of the Generalitat to those indicted for these events and began the seizure of their assets. An accounting responsibility file against the UGT union stemming from the case of the EREs, in which the union organization has been demanded a bond of 9.7 million euros, is also pending trial.