Neither of the two magistrates affected by the reform have withdrawn from the plenary session of the Constitutional Court. The conservatives Pedro González-Trevijano and Antonio Narváez, whose mandate has expired since June, have participated in the vote in which, with six votes in favor and five against, the plenary session has rejected that they be removed from the deliberations as they had asked United We Can and the PSOE, as their future depends on the Constitutional result of that legal reform with which the Government intends to unblock the renewal.
Judges and party: the Constitutional ruling that pushes two magistrates to depart in the appeal of the PP
Now the plenary session, with six conservative and five progressive magistrates, will continue deliberating on the appeal of the PP and its request for very precautionary measures.
The plenary meeting began at 10 in the morning and the magistrates, after a break to eat at half past two, had resumed deliberations at five in the afternoon. Before that lunch break, and after four hours of debate, the magistrates had only agreed to take the matter to a full session with seven votes in favor and four against, without deciding, for example, on the admission for processing.
The plenary magistrates have met for the second time in a few days to address this matter. Last Thursday was the first meeting that ended with hardly any deliberations after the progressive sector of the plenary session, which is committed to not imposing urgent measures, requested more time to examine the case in depth. This implied, in practice, that the Congress of Deputies was able to vote to continue processing the reform, whose passage through the plenary session of the Senate is scheduled for this Thursday.
That first plenary session already evidenced the deep division that the guarantee court was furrowing. Five magistrates from the progressive sector, in a minority by one vote difference compared to the conservative sector, were determined to defend that it was not appropriate to impose any type of very precautionary measure. A measure that is taken without requesting reports from the parties involved or the Prosecutor’s Office and that can later be reviewed in the phase of precautionary measures.
Meanwhile, in the conservative sector, some magistrates were betting on imposing these urgent measures, although without openly showing the same unity of criteria as their plenary colleagues. Enrique Arnaldo, conservative and rapporteur for the case, is committed to paralyzing the processing, but other reports by lawyers from the Constitutional Court point in the opposite direction and endorse a rejection of the measures requested by the right.
Two recused magistrates
Another of the keys to the matter is the questioning that first Unidas Podemos and later also the PSOE have made regarding the presence of two magistrates in plenary session: President Pedro González-Trevijano and Antonio Narváez. They are the two magistrates whose renewal has been pending since June and who also depends on the General Council of the Judiciary, where a conservative sector of the members has refused to date to sit down to vote on the appointments. In sufficient numbers to make an agreement impossible if they remain in that position, for now seeking the veto of José Manuel Bandrés, candidate of the progressives.
This recusal has just been rejected by the plenary of the Constitutional Court with the vote against the two interested parties.
These two parties, who have tried to appear in the processing of the PP and Vox appeals, explain that the future of these two magistrates depends directly on the reform on which they have to make decisions. If it is paralyzed, the norm with which the Government intended to unravel its renewal will not go ahead and they will not be renewed. If it is not stopped, the process will continue and its renewal will be closer.
There are precedents of magistrates who have departed from similar decisions when they understand, themselves and without any challenge, that their personal or professional interests in the case prevented them from being part of the plenary session. As explained by elDiario.es, in 2007 the then president María Emilia Casas and vice president Guillermo Jiménez decided to abstain in the deliberations on a PP appeal that questioned a reform that directly affected their permanence in those positions. The plenary, with particular votes against, accepted this inhibition appealing to the image of impartiality that the Constitutional projected towards society.
In their last resort, the Socialists have put another case on the table: when in 2015 the so-called ‘chamber of 61’ of the Supreme Court studied the possible challenge of various magistrates of the contentious in the processing of an appeal against the general regulation of costs. The challenge was rejected but that car it reflected the European doctrine on the matter: “Impartiality is normally defined by the absence of prejudice or taking a position.”
Pending vote in the Senate
On the political level, the initial appeal of the PP and the movements of the Constitutional Court to study the request for very precautionary measures resulted in a day of maximum tension in Congress that same Thursday. A day in which the vote on the reform was scheduled for an extraordinary plenary session at three in the afternoon in the lower house, and which was finally held after the Constitutional Court announced the delay in its deliberations just 25 minutes before it the deputies were called to vote.
That uncertainty is now transferred to the upper house. The Senate plans to vote on these amendments and this reform on Thursday of this week in another plenary session already convened. The reform, in practice, modifies the majorities required in the Council of the Judiciary to appoint two Constitutional magistrates. At this time, the blockade exercised by members of the conservative sector makes it impossible to reach an agreement by a majority of three fifths of the plenary session. The reform, advanced by elDiario.es, lowers this requirement to a simple majority, which would allow this blockade to be circumvented.