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10 de març 2018

Pérez Royo : Catalonia and the courts

Five articles by Professor Javier PÉREZ-ROYO, full professor of Constitutional Law, University of Seville. The translations into English are mine.
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  • 1. The authority of the Speaker of Parliament (7 MAR 2018)
  • 2. Impardonable ignorance 
  • 3. Impardonable ignorance (2)
  • 4. Why it's prevarication
  • 5. En fraude de ley (30 MAR 2018)


1. The authority of the Speaker of Parliament

Torrent's decision on the investiture is mandatory for the judge

JAVIER PÉREZ ROYO, Full Professor of Constitutional Law
07/03/2018 21:17

The person who proposes the candidate and decides the day the investiture plenary is to be held is the Speaker of Parliament. Nobody else has authority to do it. And no-one can stop that decision from materializing.

All that is required by the Constitution and the Statute of Autonomy is that the candidate who is proposed has to be an elected Member of Parliament and cannot be a person deprived by a non-appealable Court judgment of the right to vote. As things stand, nobody can prevent the proposed candidate from attending to the plenary.

When the proposed candidate is subject to a precautionary measure such as jail withouty bail, the Speaker of Parliament must address the judge who ordered this precautionary measure. Not because for him to authorize the candidate to go to the investiture session, but to require him to have what is necessary for the candidate to be there.

The judge has no authority in this matter. The only person that has authority is the Speaker of Parliament. The magistrate is duty-bound to comply with the requirement. In legal terms this has nothing to do with the review of the imprisonment order. They are completely different things. The review of an imprisonment order is a legal operation. Requested by the interested party, it enters within the provisions of the law that the judge who has to resolve calls the parties to a hearing so that they can plead what they think fit.

But laying down what is needed to fulfil the requirement so that the proposed candidate goes to the investiture session is a material operation devoid of legal content. The magistrate should just go to the corresponding ministry - I believe it is Interior, but it might be Justice - because the candidate moves with all the security measures that the judge deems relevant until, once the investiture has finished, he returns to prison.

Later, judge Pablo Llarena will have to resolve the request for a review of the imprisonment order, which is legally independent of the investiture. The candidate who attends the plenary session is no longer subject to the precautionary measure, and remains without freedom. All he can do is go to the Parliament, guarded by the members of the security forces of the State.

In the framework of this operation, the proposed candidate is not the person who has to go to the judge to request the authorization. It is the Speaker of Parliament who has to make the request.

Were the judge not to respond he would be committing an offence and a serious one at that, inasmuch as he would be preventing the normal operation of the institution in which the process of democratic legitimization of power rests in the autonomous community of Catalonia, which is a constituent part of the State. It is also State.

Exclusive power

Once Parliament is constituted, the President's appointment is the session that really marks the beginning of the legislature. If there is no investiture of the President within a period of two months from the first vote, Parliament is dissolved. No other parliamentary act considered on its own is as transcendental as the investiture of the President of the Spanish government or of an autonomous community. The Speaker of the Congress, or of the Parlament, is the only authority that orders how the session is carried out. It is an exclusive and exclusive power. No one can be unaware of his authority, not even the Constitutional Court. His decisions are mandatory orders.

This is the ABC of parliamentary law. It makes me blush to have to put it in writing, almost forty years after the entry into force of the Constitution.


2. Impardonable ignorance

There are things that a Supreme Court magistrate cannot not know

JAVIER PÉREZ ROYO, Full Professor of Constitutional Law at the University of Seville
09/03/2018 21:02

There are things that a Supreme Court magistrate cannot not know. He cannot fail to know that Spain is a parliamentary monarchy, which is a form of parliamentary democracy, and he cannot fail to know the position of a Parliament in this political form.

And this ignorance is what judge Pablo Llanera has attested to in the injunction he issued yesterday in which he decided not to allow Jordi Sànchez to attend the investiture session as the candidate designated by the Speaker of the Parliament.

Parliamentary democracy rests on two principles: the first refers to the fact that power resides in the people, from which the powers of the State emanate, and the second refers to the chain through which this democratic legitimization is projected in the constitutional architecture. This means that there is only one body that directly bears it: Parliament. The power resides in the people, but institutionally it is projected in the Parliament. "The Cortes Generales represent the Spanish people," says article 66.1 of the Constitution. It is the only occasion in which the Constitution places the people, as the holder of power, in direct connection with a constitutional body. All other connections are through Parliament.

Parliament must renew its connection with the people as the possessor of power every four years, which is the time a legislature lasts. With every renewal of democratic legitimacy, an entirely new phase of parliamentary democracy begins. Legislatures are not communicating vessels, but watertight compartments. The discontinuity principle presides over parliamentary life. Hence the numbering of legislatures.

With each renewal of Parliament's democratic legitimacy, the renewal of the legitimacy of the government and the judiciary has to take place. The renewal of the government is explicit and visible: it happens through the investiture of the president. The renewal of the legitimization of the judiciary is implicit: "submission to the rule of law" (art. 117.1 of the Constitution) remains as it is in the current legal system as long as the Cortes Generales do not decide to innovate it. The new Cortes Generales adopt the legal order and renew its legitimation by modifying it or not modifying it.

This is exactly the same for all the autonomous communities, whose parliamentary formula is a reproduction of the state formula.

In a parliamentary democracy, Parliament is the only constitutional body that has freedom. It is the only body that creates, rather than implementing, the law. Its límit is the Constitution, but it does not implement the Constitution; instead it creates law freely, inside this limit. It has, as the Constitutional Court says, "freedom of configuration." A freedom that has no-one else has.

And this "freedom of configuration" is manifested first and foremost in the transmission of democratic legitimacy to the government through the investiture of the Prime Minister. This is the ultimate expression of "freedom of configuration." Parliament and only Parliament, after the holding of elections, can decide, within the limits laid down in the Constitution, how it conveys the democratic legitimacy which it bears to the Prime Minister.

For the autonomous communities, the limit imposed by the block of constitutionality is that the candidate proposed by the Speaker of Parliament for the investiture is a Member and that he is not deprived of the exercise of the right to vote. As long as this double limit is respected, it is impossible to interfere from outside Parliament in the investiture process.

The opposite would imply the denial of the principle of democratic legitimacy, the principle of parliamentary autonomy and the principle of division of powers, as well as the violation of the proposed candidate's right of passive suffrage and the right of active suffrage of all Catalan citizens who took part in the elections on 21-D.

It is terrifying that a citizen who shows a scandalous ignorance of the foundations on which Spanish parliamentary democracy rests can be a Supreme Court judge.

In the next article we will see how one can and has to react before this fact.


3. Impardonable ignorance (2)

11/03/2018 | 20:29

Maybe Supreme Court judge Pablo Llarena thought that in issuing his injunction last Friday all he was doing was preventing Jordi Sànchez from attending the investiture session convened by the President of the Parliament, as the candidate. But, in fact, the scope of his decision is much greater. Knowingly or not, the ruling that denies Sànchez, imprisoned in Soto del Real, the penitentiary permit, is an attack on the Parliament and the people of Catalonia represented in that chamber. It is not only the subjective right of a citizen that is affected, but the right of the people as a whole to allow Parliament - which has received its democratic legitimacy by the people exercising their right to vote - to transmit this legitimacy by appointing the President of the Generalitat.

Once Parliament had been constituted after the elections of December 21, it had to proceed to appoint the president. If there is no appointment, it is as if the elections had not been held. The electoral act, of which the citizens are exclusively protagonists, must be completed with the act of appointment, exclusively elected by MPs. They are two sides of the same coin. Preventing the second is to cancel the first one. That is why a parliamentary democracy does not allow anyone from outside the Parliament to interfere in the appointment process.

Once elected, only elected MPs can participate in the appointment process in all its phases. For only they are collectively the bearers of the principle of democratic legitimacy that citizens have transmitted to them, for they transmit it through the appointment the president so that the Government can be formed. Thus it is laid down in the Spanish Constitution and the rules of the Congress of Deputies of the same State. And it is laid down in the Statute of Autonomy of Catalonia and the rules of Parliament.

Any interference from the outside amounts to an offence of prevarication*, insofar as it is impossible to justify an intervention of this kind with any of the rules of interpretation commonly accepted in the world of law. The judge acting in this way is replacing the general will expressed by the Constitution, the Statute and the rules of the legislative chamber by his personal whim. In this breakdown of the principle of democratic legitimacy, in this substitution of the general will by a personal whim is what amounts to the offence of prevarication, which, precisely for this reason, is the most serious offence a judge can commit.

Possibly without knowing it, judge Pablo Llarena has opened Pandora's box. For not only can candidate Jordi Sànchez litigate against him for prevarication, but so too can every single citizen of Catalonia who may want to do so. In fact, the president, with the Parliament's bureau, not only can but indeed must do so in defence of the autonomy of the Catalan institution... as can parliamentary groups, in their own defence and that of the citizens they represent... and local councils and provincial councils... and universities and professional associations. And so on.

Judge Pablo Llarena has opened the door to a deluge of complaints that could flood the Supreme Court. From anywhere in Catalonia a complaint can be activated and everyone will be legitimized, because not a single person has not been attacked by the ruling, even if there are citizens who do not feel it as such.

The Supreme Court will have to cope with this as a result of the investigating judge's ruling. But the legal consequences of his decision do not end there.

Lack of impartiality

With the ruling, judge Pablo Llarena has revealed his lack of impartiality and, consequently, the invalidity of everything he has investigated to date. Right now the lawyers of those who are being investigated by the Supreme Court, whether or not the examining judge has issued preventive measures against them, may register their writs denouncing the lack of impartiality of the investigating judge and, as a result, calling for the declaration of invalidity of all that he has investigated. Obviously they can also request the lifting of all precautionary measures that have been adopted, including imprisonment. These are the consequences of that enormous constitutional botch-up: the ruling issued on Friday by Judge Pablo Llarena.


4. Why it's prevarication

Javier Pérez Royo
13 Mar 2018 21:07

On February 28, I published an article entitled "Prevarication against Democracy", in which I warned that a decision by judge Pablo Llanera that prevented the candidate proposed by the President of the Parliament from attending the investiture session would be a prevaricating decision. The prevarication was consummated last Friday with the judge's decision that the reader almost certainly knows.

Given that the accusation that I am making is serious, I will try to explain it, out of respect for the Judiciary and also for readers.

The crime of prevarication amounts to a defaulting of the principle of democratic legitimacy of power. Within the Constitutional State there is no exception to the principle of democratic legitimacy. Any exception - any - is a contravention of the principle.

In the case of powers of a political, legislative and executive nature, democratic legitimation is visible. Citizens elect the Parliament and then the Parliament elects the President of the Government.

In the case of powers of a legal nature - those of the judiciary -, democratic legitimation is not visible. Hence, the judge must make it visible every time he or she acts. That is why judgments, judicial decisions, "will always be justified," says article 120.3 CE. The justification of judicial decisions is, above all, a requirement of the principle of democratic legitimacy. It also fulfils the function of not creating the defendant's defencelessness. But the visibility of democratic legitimation comes first. It is the way in which the judge has to prove that he acts as a "power of the State".

In each step the judge has to demonstrate that it is the "general will" and not his "personal will" that prevails in his or her decision. And he or she has to do it by interpreting the legal norm that is relevant to the issue on which he has to decide. And this has to be done by also making use of the rules of interpretation that are generally accepted in the world of law.

In last Friday's ruling there is absolutely none of this in the part relating to the judge's decision to prevent the candidate proposed by the President of the Parliament from being able to attend the investiture session. I do not agree with the first part of the ruling regarding the extension of the provisional detention, but in that part there is the appropriate legal reasoning. In the second part of the ruling, there is no legal reasoning. There is a semblance of reasoning, which is not the same.

The investiture of the President, like that of any of the other Presidents of Autonomous Communities, is part of the so-called "constitutionality bloc", that is, part of the combination of the Constitution and the Statute of Autonomy. No other legal norm can penetrate this domain, in which there is what could be called a "constitutional reservation". Only the constitutive norms of the "bloc of constitutionality" can regulate it.

Any decision that is made about the investiture process has therefore to be based on those rules and nothing other than those rules. There is no other relevant norm for the judge to rest his argument on.

And what the "block of constitutionality" says is crystal clear. Article 152 of the Constitution requires that the president of a Autonomous Community must be a member of Parliament. The prime minister of the Government of the Nation does not have to be one, but the president of a Community does.

The Statute of Autonomy requires that he or she be proposed by the Speaker, after talks with the spokespersons of each of the parliamentary groups and, after the investiture debate, an outright majority is required in the first ballot and a simple majority forty-eight hours later.

Obviously, though the "constitutionality bloc" does not say anything about it, it is understood that the proposed candidate must be in possession of the right to vote, that is, he or she has not been deprived of it by a final court judgment.

This is all the "constitutionality bloc" says and this is only what the judge may take into consideration when making a decision about a candidate proposed by the Speaker of the Parliament for the investiture. I do not think it needs to be remembered that the Constitution and the Statute of Autonomy are legal norms and that they are the supreme norms of the legal structure and that it is not they that have to be interpreted in accordance with ordinary laws, but quite the opposite: ordinary laws have to be interpreted in accordance with them.

What judge Pablo Llanera did in last Friday's ruling was quite the contrary. In the second part of the ruling there is no legal reasoning. There is legal charlatanism, which is quite different. There is not a single reference to the Constitution and the Statute of Autonomy, as if they were not directly applicable legal norms. In this case they are not only directly applicable, but applicable to the exclusion of all others. It is a classic case of prevarication*. The investigating judge has made up his mind to prevent candidate Jordi Sánchez from attending the investiture session because his heart told him to do so, but not for any legally relevant reason.

A judge's prevarication* cannot constrain the investiture of the President of the Generalitat.

* =  "Prevarication" is an abuse of authority, an offence committed when an authority, judge / lawyer or public official issues an arbitrary resolution in an administrative or court affair, in the knowledge that this resolution is unfair, and therefore violates the duties of the public servant.

Such acts are displays of abuse of authority.



The EAW* is going to backfire like a boomerang against Spain's judiciary, who are going to suffer an evident discredit.
The judge qualifies as a crime of rebellion conduct in which the central element of the criminal category of that crime is not present: violence.
Javier Pérez Royo
30 Mar 2018 21:45

The EAW is an instrument of both intra- and inter-judicial cooperation. It is intra-judicial because only judges participate in it. At the point of departure is the judge issuing the EAW. At the point of arrival is the receiving judge who has to decide whether to accept it in the same terms in which it was issued or not. It is also inter-judicial in that the judge at the place of departure is from a country other than the judge at the plaace of arrival.
The purpose of the EAW is clear: to leave the governments of the various countries out of the operation. Only a judge has to make the decision on another judge's request for a given citizen to be handed over, in order to proceed criminally against him or her. The EAW is based on trust. It is based on the assumption that all judges in the countries in which the cooperation instrument operates act as judges are expected to in a democratic lawful State. It is understood that nobody is going to try to take anyone for a ride, that is, to legally qualify certain deeds in s qay rhat is different from the one that is appropriate to them. It is assumed, therefore, that no judge will request authorization to criminally prosecute a citizen for conduct that is not constitutive of the crime for which he or she is intended to be prosecuted in accordance with the account of the facts viven by the issuing judge. Said in a few words, it is presumed that no judge will issue a EAW in fraud of law.

Yet this is precisely what Judge Pablo Llanera has done in issuing the EAW against Carles Puigdemont and four other Catalan nationalist leaders. The judge qualifies as a crime of rebellion conduct in which the central element of the criminal category of the crime, violence, is not present.

For there to be a crime of rebellion there has to be a "violent uprising", an expression that, in the practically unanimous interpretation of the doctrine, is not the result of juxtaposing an adjective to the noun, but that "violent uprising" is an inseparable set. The crime of rebellion is a violent uprising, in which the violence has to be present before the uprising begins, from the moment it is prepared, and that does not disappear throughout its development. It is not a matter of violent episodes occurring, but of there being practically nothing but violence.

And this violent uprising simply has not existed. There have been violent episodes of a very varied nature, which may or may not amount to crimes but which can in no case be a crime of rebellion. And this is very clear when reading the successive writs issued by the investigating judge.

Fortunately, it will be jurisdictional bodies of four democratic countries that will have to make pronouncements. Each of them independently. It is not a collegiate body that will intervene, but four independent bodies. But it escapes no-one and particularly the judges of the four countries that are going to have to make the decision, that this goes beyond the specific case that is being submitted to their consideration. What they are going to decide is the European canon of the crime of rebellion, that is to say, what must be understood by rebellion in 21st century European democracy.

Though each judicial body will make the decision independently, everyone is aware that this is a matter that European (and not just European) public opinion is following closely, and that they are expected to define the European common denominator of the crime of rebellion.

And that common denominator cannot be the one that appears in Judge Pablo Llanera's decision and EAW. This fraud of law will be exposed in the decisions of the four European jurisdictional bodies in an unequivocal and uncontestable manner.

Abuse of trust always ends up having to be paid for. The EAW is going to backfire like a boomerang against the Spanish judiciary, who are going to suffer an evident discredit.

* EAW = European Arrest Warrant

En fraude de ley

La euroorden se va a volver como un boomerang contra la justicia española, que va a sufrir un descrédito evidente

El juez califica como delito de rebelión conductas en las que no está presente el elemento central del tipo penal de ese delito: la violencia

Javier Pérez Royo

La  euroorden es simultáneamente un instrumento de cooperación intra e interjudicial. Es intrajudicial porque en ella intervienen únicamente jueces. En el punto de partida está el juez emisor de la euroorden. En el punto de llegada está el juez receptor que tiene que decidir si la acepta en los mismos términos en que ha sido emitida o no. Es también interjudicial porque el juez que está en el punto de partida es de un país distinto al del juez que está en el punto de llegada.
La finalidad de la  euroorden  es clara: se trata de dejar a los  gobiernos de los distintos países fuera de la operación. Únicamente un juez debe tomar la decisión acerca de la solicitud de otro juez para que un determinado ciudadano le sea entregado, a fin de proceder penalmente contra él.
La  euroorden descansa en la confianza. Descansa en la presunción de que todos los jueces de los países en los que opera dicho instrumento de colaboración actúan como se espera que lo haga un juez en un Estado democrático de Derecho. Se entiende que nadie va a intentar dar gato por liebre, es decir, dar una calificación jurídica a unos hechos distinta de la que les corresponde. Se presume, por tanto, que ningún juez va a pedir autorización para perseguir penalmente a un ciudadano por una conducta que no es constitutiva del delito por el que se le pretende procesar de acuerdo con el relato de los hechos construido por el propio juez emisor.  Dicho en pocas palabras, se presume que ningún juez va a emitir una euroorden  en fraude de ley.
Y sin embargo, esto es, justamente, lo que ha hecho el juez Pablo Llanera al dictar la euroorden contra Carles Puigdemont y otros cuatro dirigentes nacionalistas catalanes. El juez califica como delito de rebelión conductas en las que no está presente el elemento central del tipo penal de dicho delito que es la violencia.
Para que exista un delito de rebelión es necesario que se produzca un "alzamiento violento", expresión que, en la interpretación prácticamente unánime de la doctrina, no es el resultado de yuxtaponer un adjetivo al sustantivo, sino que "alzamiento violento"  es un conjunto inescindible. El delito de rebelión es un alzamiento violento, en el que la violencia tiene que estar desde antes de que empiece el alzamiento, desde el momento preparatorio del mismo y  del que no desaparece durante todo su desarrollo. No se trata de que haya episodios violentos, sino de que no haya prácticamente nada más que violencia
Y este  alzamiento violento simplemente no ha existido. Ha habido episodios violentos de muy diferente entidad, que pueden ser o no constitutivos de delito, pero que, en ningún caso, pueden serlo del delito de rebelión. Y esto resulta meridianamente claro a partir de  la lectura de los autos sucesivos que ha dictado el juez instructor.
Afortunadamente van a ser órganos jurisdiccionales de cuatro países democráticos los que va a tener que pronunciarse. Cada uno de ellos es independiente. No es un órgano colegiado el que va a intervenir, sino cuatro órganos independientes. Pero a nadie se le oculta y menos que a nadie, a los jueces de esos cuatro países que van a tener que tomar la decisión, que la misma va más allá del caso concreto que se somete a su consideración. Lo que van a decidir es el canon europeo del delito de rebelión, es decir, qué debe entenderse por rebelión en la democracia europea del siglo XXI.
Aunque cada órgano judicial va a tomar la decisión de manera independiente, todos son conscientes de que se trata de un asunto del que está pendiente la opinión pública europea, y no solamente la europea, que espera de ellos que definan el común denominador europeo del delito de rebelión.
Y ese común denominador  no puede ser el que figura en los autos y en la euroorden del Juez Pablo Llanera. El fraude de ley va a quedar retratado en las decisiones de los cuatro órganos jurisdiccionales europeos de manera inequívoca e inapelable.
El abuso de confianza se acaba pagando siempre. La  euroorden se va a volver como un boomerang contra la justicia española, que va a sufrir un descrédito evidente.

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