The first battle over amnesty before the Constitutional Court consists of deciding which magistrates will rule on the law. Dozens of challenges await their turn while the magistrates draw, week after week, the composition of the plenary session which will study the rule of grace of the process. After the voluntary abstention of former minister Juan Carlos Campo, the court rejected the request of the Popular Party and its autonomous communities to dismiss two other members of the progressive sector, which maintains its majority. In recent days, the challenge presented by the Public Prosecutor’s Office against José María Macías as rapporteur of the PP’s appeal was also rejected for formal defects, although another similar request from the Public Prosecutor’s Office is awaiting resolution.
The Plenary Court of Guarantees has around twenty appeals and unconstitutionalities on the table against this law. Some come from courts like the Supreme Court, but most of these challenges have been filed by the Popular Party or the autonomous communities where it governs, besides Castile-La Mancha. And many of these resources from governments and regional assemblies included the recusal of three magistrates from the progressive sector: Juan Carlos Campo, Laura Díez and Cándido Conde-Pumpido.
More than fifty requests which, if they succeeded as the party of Alberto Núñez Feijóo wanted, would have changed the arithmetic of the Constitutional Court. With a majority of seven progressive justices against a minority of five conservatives, the complete success of the challenges would have given way to a progressive minority to address this issue. Four progressives and five conservatives to analyze one of the most politically important regulations of the last decade.
The recusal of the former Minister of Justice did not even have to be addressed because he himself voluntarily withdrew from the deliberations for having participated in legislative stages of the process such as the pardon of his leaders. But this first movement, traditionally peaceful when a magistrate abstains because he understands that he must not participate in a sentence, revealed an internal division in the court that sources in the organization had been anticipating for weeks: six magistrates voted in favor of abstention, five against and three members of the conservative sector presented dissenting votes.
This first fight concerned the substance but also the form: who should make this decision. The conservative sector was betting on excluding from the debate those who were contested, unlike what happened at the end of 2022, when the conservatives Pedro González-Trevijano and Antonio Narváez rejected their own challenge in the PP trial which prevented a vote in the Senate. As part of the amnesty, the first procedure ended with the rejection of the demands which were maintained throughout the other unsuccessful challenges.
The PP sought to exclude President Cándido Conde-Pumpido and Laura Díez from the deliberations and convictions on the amnesty. The first for having voluntarily refrained from appealing the criminal convictions of the trial and the second for having worked in the Ministry of the Presidency and for his alleged proximity to the CPS. Both were rejected, and in some cases unanimously on the merits. The conservative sector of the plenary also understands that neither should have been separated, although it maintains that the decision should have been made without the parties themselves.
The doubt of José María Macías
There are no more disputes pending the deliberation on the progressive sector of the Constitutional Court and the only decision to be taken concerns José María Macías, former member of the General Council of the Judiciary and latest addition to the plenary session to constitute for the Alfredo’s absence for health reasons. The Crown and Crown Prosecution Service suggested he step down because, when he was a member of the ruling body of judges, he was active in opposing the law by a group of conservative members.
The recusal of the legal profession was unanimously rejected by conservatives and progressives because it had been raised too early as part of the PP’s appeal, of which he will be the spokesperson. The court understands that he was presented before the appeal was even admitted for processing and that this defeated his allegations.
The prosecution’s complaint against his presence at the deliberations is still awaiting resolution. One challenge presented in the process concerned the question of unconstitutionality of the Supreme Court, which has been admitted for treatment for several weeks. Macías’ intention is not to deviate from the deliberations, just as Concepción Espejel was not excluded from the judgment on the abortion law for having denounced the law when she was a member, although she asked for it herself.
The prosecution understands that Macías should not participate in the debate because he did not limit himself to signing a report or expressing an opinion contrary to the law – which he did explicitly and in numerous interviews and public statements – but rather, he had “direct participation” in “official actions” against the norm. He led a group of members who actively opposed, among other government measures, this amnesty law, forcing the publication of a contrary report which had not initially been requested. According to the prosecution, participation in this report was “a truly typical act of the exercise of the public function that he exercised” and with which he “directly participated in the matter which is the subject of the trial or the ‘affair “. Macías’ participation was not something “purely formal”, asserts the prosecution, but rather it is “obvious”.
Macías’ vote is worth that of the rest of his colleagues, but his role in resource management will be decisive in the months to come. He was appointed rapporteur of certain amnesty judgments, including those of the appeal considered to be the most relevant: that of the Popular Party.
Several challenges to the rule have already been admitted for treatment, for example the question of unconstitutionality of the Criminal Chamber of the Supreme Court, but a good part of the appeals presented by the autonomous communities and regional parliaments are still pending to pass this first filter. .
