The Plenary Assembly of the Constitutional Court today declared unconstitutional – and therefore void – the decree-law approved on July 6, 2021 by the Catalan government of Father Aragonés so that 42 senior officials responsible for the unilateral independence process, including Carlos Puigdemont and Oriol Junqueras, they did not have to pay a bail of 5.4 million with their personal property euros that the Court of Auditors imposed on them.
This body processes a accounting responsibility file, still alivefor the expenses of the illegal 1-O referendum and the propaganda of the ‘trial’ abroad, which were paid with public funds. The sentencing advisor, Elena Hernáez, presented the first preliminary question on July 29 aimed at challenging the amnesty law before the Court of Justice of the European Union (CJEU).
Although he canceled the decree-law, TC failure is completely ineffective thanks to the argumentative strategy of the progressive majority of the TC.
The six of the seven magistrates of the majority (all, except María Luis Balaguer) They did not agree to judge the standard on its merits and they based the unconstitutionality on formal aspects, in particular on the absence of circumstances of extraordinary and urgent necessity which would justify resorting to the decree-law route.
But once this was validated, the Catalan Parliament approved a law which included the content of the decree-law. Catalan Law 2/2022 therefore remains in force, which was not contested before the TC and continues to cover the risks of those involved in the “trial” before the procedure of the Court of Auditors.
The existence of this conversion law is the reason why Balaguer voted against the decision of unconstitutionality. According to him, the challenge by Vox deputies to the decree-law that created the complementary risk fund for civil servants and functions of the Generalitat of Catalonia no longer makes sense once Law 2/2022 has been approved.
The rest of the progressive magistrates did not accept the arguments of the presentation prepared by magistrate César Tolosa, in which, in addition to the problem of the absence of authorization to resort to a decree-law, The unconstitutionality of the norm has been defended for other reasons.
The decree-law created a supplementary fund to deal with liabilities arising from legal or administrative proceedings not covered by insurance policies.
The coverage of this fund, used to pay the bond of one million dollars imposed by the Court of Auditors for 1-O expenses, will be maintained as long as there is no final decision and all avenues of appeal have not been exhausted judicial and jurisdictional, state and international. Those responsible for the process thus ensure prolonged protection from the Generalitat throughout the years of the actions they could bring, inside and outside Spain, against possible condemnation by the Court of Auditors.
Grounds for unconstitutionality
According to the presentation, the decree-law has an impact on the common procedural regime precautionary measures and the execution of sentences, which escapes regional competence.
Furthermore, he argued that autonomous powers always have their limit in a principle of territoriality. This principle requires that regional legislators not influence procedures heard by bodies whose jurisdiction extends to the entire national territory, such as the Court of Auditors.
The presentation also defended the impact of article 118 of the Constitutionwhich establishes the obligation to comply with the convictions and other final resolutions of those who have been parties to the process.
According to the decree-law, the possible right of the Generalitat to recover funds unduly used in the process would only be required when, faced with the final judgment of the Court of Auditors, all judicial and jurisdictional means of contestation have been exhausted, both state and international, which represents an “atypical condition” – underlines the presentation – for compliance with the judgment.
If they had been well received by the progressive majority of the TC, These arguments would have determined the invalidity of Catalan Law 2/2022.
The five minority judges (Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel, César Tolosa and José María Macías) announced votes in which they will defend that the decree-law should have been declared unconstitutional also for the reasons indicated in the presentation.
