The "swallow it" without pain or glory of the new candidates to the Constitutional Court


“With its limitations, with some swallow them, it is possible that it will be achieved.” The phrase of the PSOE deputy for Gipuzkoa, Odón Elorza, was heard this Tuesday in the appointments committee Congress and refers to the renewal of four magistrates of the Constitutional Court. More specifically, of the half proposed by the Popular Party, Enrique Arnaldo and Concepción Espejel, considered as close to the formation chaired by Pablo Casado. This Tuesday, however, the existence of the agreement between the PP and the PSOE brought back the image of previous consensuses in which even the political and parliamentary militancy of the candidates has been ignored for the sake of renewal.

Elorza brought up “swallow it” to praise the agreement as a “solution to a problem that was a tremendous block of the constitutional bodies. “At the end of the meeting it was the deputy of the PP, Isabel Borrego, who reproached him for that expression.” I don’t understand the expression that we have heard before, a swallow it. In which the presumption of innocence is broken or in which what is written in the media becomes reality? “He questioned. This act”.

The “swallow it” that Elorza and Borrego referred to comes and goes in all the renewal negotiations of this type of organization between the two majority parties. A negotiation that until a few years ago was limited to including minority parties but that with the current parliamentary arithmetic becomes somewhat more complex. But it has always consisted, when the agreement has been reached, in overlooking some characteristics of the candidates that in another context have been considered disqualifying.

In the case of Enrique Arnaldo, it was settled this Tuesday with a “his candidacy generates distrust when it comes to guaranteeing impartiality in the Constitutional Court” by Elorza and a battery of questions about whether he had legally combined his activity as a lawyer with his I work as a lawyer for the Congress of Deputies. He did not say it in his speech but many of those works for which he asked for compatibility, as explained by the SER string, were largely billed to public administrations led by the PP but also to some led by the PSOE, Canary Coalition, CiU and Izquierda Unida.

Nor was he much more incisive in the case of Concepción Espejel. The president of the Criminal Chamber of the National Court was removed from several trials in the Gürtel case for having been proposed at the time as a member of the General Council of the Judiciary (CGPJ) by the PP and voted, among others, by Luis Bárcenas when he was a senator for Cantabria. The PSOE did not sign his request for recusal but threatened to do so in 2015. Yesterday the socialist Francisco Aranda spoke of “doubts, differences” but decided that he was giving him a “presumption of impartiality in an exercise of respect that the high court deserves.” United We Can, represented by Txema Guijarro, limited itself to allude to Arnaldo’s participation in the trial for the murder of several Jesuits Spaniards in El Salvador in 1989 and did not comment on the suitability of Concepción Espejel.

Enrique Arnaldo’s “swallow it” includes appearances without criminal consequences in the summaries of Palma Arena and Lezo. The first involved an accusation for collaborating with Jaume Matas in money laundering and was settled with a prescription file of the facts. Arnaldo himself addressed the matter at the end of his speech, demanding that his presumption of innocence be respected. “I never imagined that I was going to be forced to vindicate the presumption of innocence in parliament (…). My time in a court was limited to testifying in a process and I was exonerated when the judge issued the order of file”, he claimed. And he claimed that when someone is exonerated by the judge he does not become “an eternal suspect.”

What he did not comment on was his appearance, this time without imputation, in the phone jabs of the Lezo case. He spoke then with the former president of the Community of Madrid and supposed leader of the plot, Ignacio González, and claimed to be moving “so that the new prosecutor is good.” Edmundo Bal mentioned this episode in passing and Arnaldo made no specific reference. There was also no mention of an appearance revealed a few days ago by Radio Madrid: which has been part of the Center for Bullfighting Affairs of the Community of Madrid since March of last year.

Something similar happened with Concepción Espejel, who dedicated her final speech to denouncing that the reasons for her challenge in the Gürtel case have been twisted to draw a closeness with the Popular Party that is not real. A ceasefire that also reflects the intervention of the representative of the Popular Party, Isabel Borrego. Regarding Juan Ramón Sáez, a member of the CGPJ at the time at the proposal of IU, he limited himself to saying that he is a “qualified professional who can carry out his function independently.” On Inmaculada Montalbán, member of the same Council at the proposal of the PSOE at the time, she even took it for “insurance” that she will be able to exercise independently in the court of guarantees.

The sifted criticisms that Espejel and Arnaldo have heard this Tuesday are reminiscent of the most serious that the judge heard Jose Ricardo de Prada when in 2018 he was a candidate for the CGPJ. Magistrate of the National Court, he is attributed the harshest sentences of the judgment of the Gürtel case about the PP and its ‘box B’ that led to the motion of censure that removed Mariano Rajoy from Moncloa. His name, then included in the list of jurists, was wielded by the PP for more than two years to dry dock the renovation of the CGPJ.

That November 16, 2018 was Carlos Rojas, ‘popular’ deputy for Granada, who explained his “swallow it”. “I do not share part of your career (…) there are many prestigious jurists with more prestige than you (…). It is good for the Spanish justice that you stop doing what you were doing; that is, for a few years you will stop passing sentences, “he said.

That day few candidates for vocal and substitutes heard such harsh words. Simeó Miquel Roé, one of the candidates presented by United We Can and a member of one of the Electoral Syndicates set up by the pro-independence movement to endorse the results of the illegal referendum of 2017, he received softer criticism than those leveled on De Prada.

De Prada’s crime had been nothing less than condemning the PP as responsible for profit for the activity of the Gürtel plot by financing electoral campaigns with corrupt money in Majadahonda and Pozuelo de Alarcón. Even so, at first the agreement between PP and PSOE included entering the governing body of the judges as a jurist of recognized prestige. Its suitability, however, was never put to a vote. Manuel Marchena resigned to preside over the CGPJ after the leak of the messages in which Ignacio Cosidó boasted that with his appointment the PP was going to control “from behind” the Criminal Chamber of the Supreme Court. So the matches they withdrew their candidates and started a lock that continues to this day.

Except for surprise, this partial renovation of the Constitutional Court will come to fruition and there will be four new magistrates at the headquarters of Domenico Scarlatti. A first movement in a card game that could end with the coalition government achieving that both the Constitutional and the CGPJ have a progressive majority that right now, thanks to the blockade of the PP to renew both institutions, is far away. But many things depend on the negotiations between Félix Bolaños (PSOE) and Teodoro García Egea (PP).

The first is the possible renewal of the CGPJ. One month after the third anniversary of the end of the current term, both parties have not revealed whether there will be consensus to relieve Carlos Lesmes and his 20 members, although the positions they seem closer than half a year ago. A renewal of the Council would not only renew the plenary session: it would also unblock dozens of appointments in the Supreme Court and other territorial courts that threaten to collapse the cassational funnel of Justice.

A new renewed CGPJ with a greater weight of the progressive sector opens another door towards the next renewal of the Constitutional Court. In June of next year the mandate of three magistrates from the conservative bloc —Pedro García-Trevijano, Santiago Martínez-Vares and Antonio Narváez— and another one from the progressive bloc, Juan Antonio Xiol, will expire. But its renewal will not have to go through the winding path of a negotiation between parties: two appointments depend on the CGPJ and another two from the government itself.

The process with little mystery that the four candidates have successfully passed this Tuesday, therefore, can have considerable effects beyond a renewal that does not change the current arithmetic of the Constitutional Court. All this while waiting to know how the negotiations are progressing to overcome a blockade in the CGPJ that has already dwarfed the one that also starred in the PP between 2006 and 2008 to avoid losing the majority that had facilitated the parliamentary dominance of José María Aznar in the 2001 renovation.

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