Sunday, January 29

The popular ones take their battle against Delgado to the Constitutional Court with the endorsement of two Supreme Court judges



The PP does not give up and will continue litigating against the appointment of the former minister Dolores Delgado as attorney general despite the setback he received last October in the Supreme Court, which rejected his appeal and the one promoted by Vox against this appointment by lack of standing of both formations to claim on this matter. Legal sources of the formation confirm to The Newspaper of Spain who will take the matter to constitutional Court after exhausting the way in the Supreme Court, which a few days ago inadmissible the incident of nullity filed against the initial decision.

This resolution, however, contains legal ammunition that the PP will use in his appeal before the Court of Guarantees and which is included in the particular votes that the magistrates sign Jose Luis Requero and Antonio Jesus Fonseca-Herrero, which were the two members of this court who voted against outright inadmissibility of the opposition’s appeals against the government’s appointment. The PP has a month to study these arguments and prepare its appeal before the TC, according to the same sources.

The two aforementioned magistrates, belonging to the conservative sector of the high court, coincide in pointing out that, when ruling on the lack of legitimacy of the appellant parties, their fundamental right to effective judicial protection was violated. Therefore, they consider that the incident of nullity should have been admitted.

This approach can be repeated in the case of the resources of the PP, Vox and Ciudadanos against the pardons of the convicted of sedition in the 1-O trial, which were also flatly rejected for lack of legitimacy. In this case, the parties have already rushed to announce that they will resort to the TC, and for this they also have the vision that the two magistrates who disagreed with the majority set out in their individual votes.

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In the case of Delgado’s appointment, Fonseca-Herrero says in his private vote, to which he has had access The Newspaper of Spain, which in this case “Specific connections of the action of the political party should have been appreciated appellant with the object of the contested act that allow affirming the existence of that typical relationship of the legitimizing interest of the Article 19.1 of the Contentious-Administrative Jurisdiction Law“.

constitutional doctrine

For this reason, this magistrate criticizes that the inadmissibility of the matter at hand entailed “an interpretation and restrictive application of legitimate interest (…) which does not conform to the constitutional doctrine”. According to this magistrate, said doctrine “supported by the ‘pro actione’ principle and for an adequate delimitation of the right to effective judicial protection, proscribes excessively rigorous interpretations of the procedural obstacles that prevent access to a first judicial decision on the merits”.

For this reason, Fonseca-Herrero believes that the incident of nullity should have been admitted for processing and an order issued “accepting the violation of article 24.1 of the fundamental rule – the right to effective judicial protection – in its aspect of access to jurisdiction“. This would have allowed, “to reinstate the actions at the time of dictating a new sentence that, analyzing the merits of the question raised and appreciating the lack of suitability of Doña Dolores Delgado“.

For his part, Requero agrees with his colleague that the sentence passed at the time with the support of the progressive sector of this body, and which shelved the possibility that the appointment of the attorney general would be annulled, violates the right to effective judicial protection “from the moment in which his judgment on the legitimacy remains in generic reasoning”.

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In his dissenting opinion on said sentence, this magistrate singled out the interest of the PP, “which should have had him as a legitimate party.” “Consequently, I understand that the incident should have been admitted for processing, an order should have been issued declaring the nullity of the proceedings, issuing a new sentence in which it was resolved on what was alleged for the purposes of legitimation and, with rejection of the cause of inadmissibility, have been resolved on the merits”.

Faced with these assessments, the majority of the Chamber, made up of the magistrates Cesar Toulouse (President of the Contentious-Administrative Chamber of the Supreme Court), Pablo Lucas, Celsa Pico, Luis María Díez-Picazo and Pilar Teso, notes that what the PP wants is for the court to carry out a new prosecution about what has already been resolved. “New prosecution that could not conclude more than in a complete reiteration, by this Chamber, of what is stated in the aforementioned resolution.”

“In short, what is evidenced by the present incident of annulment is a discrepancy of the appellant political party with the content of the sentence, which is the same when the appellants see their claims inadmissible or dismissed. Beyond this dissent, it is not revealed , in none of the invoked aspects of the judicial protection of article 24.1 of the Constitution”, they respond to the PP.

Scope of effective judicial protection

At this point, the Chamber reminds the appellant parties that “the fundamental right to effective judicial protection does not ensure the success of the claim to any of the parties“. It only assumes, he adds, “that such claims are examined by the corresponding jurisdictional body, and if they are procedurally admissible – which is not the case due to the lack of active legitimation -, based on them it is examined, then yes, the merits of the contentious-administrative appeal”

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In the sentence passed, and which is now refused to be annulled, the Supreme Court did not miss the opportunity to point out that its own jurisprudence was overwhelming when it came to declaring that “In general, the active legitimacy of political parties does not concur, to challenge any action of the different Public Administrations, and of the Governments corresponding, of the State, of the autonomous communities and of the local entities, that they consider that it is not in accordance with the legal system, except for those actions that affect the sphere of their rights and legitimate interests”.


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