Friday, December 3

Another conflict with the Supreme Court



I am not a criminal lawyer, so I do not have sufficient elements of judgment to affirm that it is absolutely evident that a sentence of deprivation of liberty such as the one imposed, of forty-five days and replaced by a legal imperative by a fine, automatically implies the permanence of the sentence. disqualification from public office and the supervening ineligibility that is claimed in application of the electoral legislation. But I am a proceduralist and I am clear that it is the Judicial Branch that is responsible for judging and enforcing what is judged and that it is the courts that have the competence to interpret the law, not the Legislative Branch, and much less the opinions of the lawyers in Congress. or those of the jurists who can be consulted. I do not find any rule in the law that says that it is the latter who determine how the law is applied and whether or not a sentence is carried out. Hence, to speak of prevarication of the TS or Batet, as Belarra has done, should imply his immediate dismissal from the position he undeservedly occupies. Qualifying the Supreme Court as a prevaricator for interpreting the law, which is its function, against a lawyer or different jurists, is absurd; that some media respond to this request, borders on the grotesque.

It is the Supreme Court who decides the way in which the criminal offenses should be applied and how they should be applied and, in the face of its decisions, there is no room for interpretations that lead to neglect, regardless of whether the interested parties may appeal to the appropriate national and international authorities. the Constitutional Court or the ECHR in this case. As simple as that.

The sentence passed, firm, was clear and did not allow any interpretation other than the mandatory execution of the disqualification of the deputy. That the lawyers understand that what the Supreme Court orders is not applicable, resorting to ponderous arguments and that they conclude in the possibility of not executing what is judicially ordered or that various jurists believe that the court’s decision is inappropriate, is not a reason for the breach of a sentence. If this were the case, any convicted person, based on a report or specialized articles or journalistic interviews, would disobey the sentences that affect them. I am concerned that some media are pointing to these theses that question the legitimacy of the Supreme Court in the fulfillment of its constitutional function and indirectly support UP’s thesis of the prevarication of a body that applies the law and interprets it. Prudence is required in those who create opinion.

That does not mean that you cannot give your opinion, something normal at the University and that judicial decisions are discussed and criticized. And, in this sense, I insist on it and in the face of the extreme positions that are held, it is not a matter without complexity to decide whether a substituted sentence of deprivation of liberty, even if it is by legal imperative, by a fine entails the maintenance of the disqualification from the exercise of public office and the supervening ineligibility established by the electoral regulations. And it is true that, although the sentence assigned is deprivation of liberty, the effective one, even by legal determination, is that of a fine. A favorable interpretation of the right to vote, as should be done with any fundamental right, would make it necessary to understand that disqualification is not appropriate. What the report maintains is not absurd, and various university colleagues affirm.

But it is also true that the fine was not the penalty corresponding to the crime committed and that the fine that replaced it was for humanitarian reasons, to avoid the criminogenic effects of the short prison sentences. That the penalty was that corresponding to the crime and that the fine was only an alternative form of compliance. Nor is it unfounded what the Supreme Court maintains.

Both positions, then, can be sustained and neither is arbitrary or unfounded. Because, this is the most important thing and what makes the issue complex is that there is no express rule in the Penal Code that establishes the rule in this specific case. Those that regulate the matter must be interpreted and this task is the responsibility of the Supreme Court.

But it is the TS that has the legitimacy to interpret the norm. And the Legislative Power, if it deems it appropriate, to change it for the future. If you do so, sure that the TS will submit to the law and will comply with it. That is the scheme of the division of powers that UP does not seem to understand.

In short, the debate, interesting from the legal point of view, prevented it from becoming a reason for not executing the sentence after the firm and clear decision of the Supreme Court, which leaves little margin for doubt. Final sentences are executed according to their operative part, they are not interpreted and they are disobeyed (art. 118 CE).

Enforce the sentence, as is required in a state of law and has already been done. Let’s legally discuss the controversial issue, which is controversial and admits of various interpretations, but putting opinions in their place. And the interested party may appeal to the competent authorities if he considers it appropriate. Those are the ways. Not disobedience to the Supreme Court.


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