The debate on abstentions has brought the two blocs of the constitutional Court (TC). The Plenary of the institution rejected last week the decision of the magistrate Concepcion Espejel to abstain in the deliberation on the reform of the abortion law of 2010 –because in 2009, when he was a member of the CGPJ, he already made it clear in an opinion that according to his criteria several aspects of the bill were unconstitutional–, but the magistrate and three other conservative judges have made clear in individual votes their opposition to that pronouncement.
Espejel assures in his dissenting vote that the fact that he was not allowed to abstain “negatively affects the appearance of impartiality that the court has to project to society”, putting at risk – he warns – “the confidence that the courts must inspire in citizens in a democratic society”.
In the midst of a wave of challenges and abstentions -with the magistrates appointed by Moncloa, the former minister Juan Carlos Campo and the former high office of Moncloa Laura Díezin the spotlight–, two other conservative judges, Enrique Arnaldo and Cesar TolosaThey have also spoken strongly about it. In the vote that they sign together, they defend that the abstention of a magistrate, when there are causes to depart, “is not a right of this, but a duty, not only ethical but also (and above all) legal.”
“You cannot go beyond what is necessary”
Along the same lines, the magistrate Ricardo Enriquez –who also considers that the Plenary should have accepted Espejel’s request for abstention– recalls that in the last twenty years the Constitutional Court has only rejected 21 abstentions, and all of them between 2006 and 2009.
But the progressive majority defends in the order in which it refused to separate Espejel that the interpretation of the duty of impartiality of the magistrates of the TC “cannot go beyond what is necessary to the detriment” of the fundamental right to the predetermined judge or “harm the exercise of constitutional jurisdiction” (The Plenary cannot make valid decisions with less than eight magistrates, two thirds of its composition).
In any case, with Espejel on the sidelines in plenary there would have been ten magistrates, enough to adopt agreements. Of course, if the challenges promoted by five former PP deputies against the president of the TC, Cándido Conde-Pumpido, and the also progressive magistrates Inmaculada Montalbán (formerly a member of the CGPJ) and Juan Carlos Campo, former Minister of Justice, had prospered, that quorum would have been vanished But the Plenary rejected these challenges by not recognizing the legitimacy of the former parliamentarians (with the opposite opinion of Espejel and Arnaldo, although only the first has signed a particular vote).
Espejel: “I formed criteria”
Regarding the rejection of his abstention, Espejel points out that the required “appearance and confidence in the impartiality of the court” should have resulted in the fact that “as in many other previous cases, my abstention was accepted”, Above all, he insists, because the alleged cause “It does not refer to simple statements or legal opinions expressed in conferences, colloquia or legal collaborationsbut in the exercise of a public office, on the occasion of which I learned and formed an opinion of what is subsequently the object of the unconstitutionality appeal, which, without a doubt, affects my appearance of impartiality and that of the court itself ».
The conservative magistrates complain that the Plenary has acted in the opposite direction in the cases of Laura Díez (who abstained in the appeal against the decree and the Catalan law to avoid compliance with the sentence of 25% of Spanish) and Juan Carlos Campo (who already has almost a dozen abstentions due to his relationship with Meritxell Batet and his time at Justice).
Arnaldo: preserve the “guarantee of impartiality”
Arnaldo defends in his vote (seconded by César Tolosa) that the rejection of Espejel’s abstention means “compromising the institutionality of this court” by not preserving “the guarantee of impartiality in the exercise of its jurisdiction.” And he emphasizes that despite the fact that the CGPJ did not issue any report in 2009 on the abortion bill (since the members did not agree), “That does not mean” that the exvocal of the Council “did not then form a criterion to the detriment of due impartiality”.
And regarding the argument of the Plenary that the magistrate “only expressed a legal criterion” twelve years ago, Enríquez ironically: “It is not known if it is an unprecedented factor to measure her memory capacity or what.”
Espejel also complains that, after the plenary decision, she was “forced” to participate in the deliberation on the challenges, compromising the court’s appearance of impartiality. Because she makes it clear that the criteria she expressed in 2009 about the unconstitutionality of the reform is “firm and maintained to date.”
In his alternative report made in 2009, Espejel considered the deadline system unconstitutional (which allows free abortion up to the 14th week of gestation) and denied that there is “an alleged subjective right to abortion based on a conduct or act that involves the denial, injury or destruction of a legal right such as human life” .