The magistrates Ricardo Enríquez, Enrique Arnaldo and César Tolosa have formulated individual votes against the decision adopted by the Plenary of the Constitutional Court where the magistrate Concepción Espejel was prevented from departing from the deliberation and decision of the appeal against the current Abortion Law.
The minority sector of the High Court considers that there were well-founded reasons for Espejel, who drafted an amendment in 2009 as a member of the General Council of the Judiciary, opposing the law on terms, to have withdrawn from the debate and vote to resolve the unconstitutionality appeal. filed by the Popular Party.
"Abstention is a due act because impartiality is, perhaps, the constitutive element of the judge's statute that can only deserve this title if it is impartial. In this sense, it should be remembered that the Constitutional Court has fully assumed the doctrine of the European Court of Human Rights which states that the right to an impartial judge, explicitly recognized in article 6.1 of the European Convention for the protection of human rights and fundamental freedoms, constitutes a fundamental guarantee of the administration of justice in a Rule of Law that conditions its very existence, since without an impartial judge there is not, properly speaking, a jurisdictional process", affirmed magistrates Arnaldo and Tolosa, appealing to the Strasbourg doctrine.
Both magistrates consider that "the recognition of this right requires, because the confidence that the courts must inspire in a democratic society is at stake, that it be guaranteed that there is no reasonable doubt about the existence of prejudices or preventions in the judge, that is to say , that their appearance of impartiality is guaranteed".
On the other hand, Judge Enríquez explains that there are few precedents in the history of the Constitutional Court where a magistrate who considers his impartiality affected is forced to resolve a matter. In this sense, it explains that "the very doctrine of this court has had the opportunity to highlight the difference of origin between the exercise of the power of abstention that corresponds to the judge or magistrate, and the right to challenge the parties to the process in which he acts, also in terms of constitutional magistrates, and he has done so in the sense of proclaiming a more restrictive degree in the control of challenges against abstentions, or what is the same, in accepting as a general rule the cause of abstention used by the magistrate or magistrate who feels concerned and thus have him or her separated from the matter, without entering the Plenary in a meticulous verification of the veracity of what is alleged, sufficing with its plausibility or formal fit in any of the causes of the law".
In this sense, Enríquez emphasizes that it is irrelevant from a legal point of view whether the opinion that Espejel prepared as a member of the Council was sent to the Government or not, since the determining factor is that the magistrate formed a prior criterion on the Abortion Law .
"The opinions contained in that amendment have not been expressed in a conference or academic publication prior to her appointment as a magistrate of this Court, which our doctrine rules out as a circumstance that could call into question her impartiality and the previous resolutions therein. It is, distinctly, a proposal for an alternative text presented in dialectical contrast with the opinion expressed both in the report prepared by the Commission for Studies and Reports, as well as by the members of the CGPJ who supported the latter in plenary, in relation to the draft law from which the contested norm is brought about. Therefore, in my opinion, it seems evident to infer that the abstained magistrate had a perfectly and solidly formed opinion on the matter whose study she had to address in the present appeal of Unconstitutionality, as she herself acknowledges when presenting her abstention document", explains judge Ricardo Enríquez in his vote .
"His position against the constitutionality of the current legal model on the voluntary interruption of pregnancy became clear in 2009 and it is notorious that his criteria have not changed over the years," Arnaldo and Tolosa emphasize.
These last two magistrates also allude to the fact that in other cases regarding a previous ruling on a matter, this same TC chaired by magistrate Cándido Conde-Pumpido has accepted the abstentions without any problem (this is the case for the example of the former high office of Moncloa Laura Díez or the former Minister of Justice Juan Carlos Campo). "It cannot fail to be remembered, since it has even had an important echo in the social communication media and has been conveniently disseminated, through press releases, through the website of the Constitutional Court, that this Court, in its current composition after its recent renewal, it has been accepting the abstention of some of its magistrates not only in appeals for amparo, but also in appeals and questions of unconstitutionality, and precisely based on the participation of the magistrate in the advisory function of the public body that in its day was part. And that request for abstention has been accepted without further discussion, as it is unequivocal and indisputable, as the magistrate has formed a prior criterion on the law whose constitutionality he must prosecute as a member of this court, "the individual votes collect.
In an order, the Plenary of the court rejects the abstention of the magistrate, arguing that the "mere fact" that a magistrate has "legal criteria on the issues that must be resolved" does not justify that he departs from the procedure. In addition, the progressive majority appeals to the fact that more than 12 years had passed.
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