Alberto Rodríguez in his recently lost seat in Congress. – Eduardo Parra / Europa Press
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Meritxell Batet withdrew Alberto Rodríguez from his status as a member of the United We Can Congress in Congress last Friday. He did so after receiving a notice from the Supreme Court in which its president, Manuel Marchena, warned that the disqualification was “mandatory.”
This decision led Rodríguez to announce on Saturday that he was also leaving Podemos, but not before thanking the party “these years have been very intense, with a lot of learning and receiving a lot of firewood.” In addition, he accused the PSOE of “stealing his act” as a member of parliament.
Along these lines, the member of Judges and Judges for Democracy, Joaquim Bosch, explained in a Twitter thread “the legal implications of a case that presents a certain complexity.”
1.- The withdrawal of his seat to the deputy Alberto Rodríguez has generated a huge controversy. Beyond political passions, I am going to try to explain the legal implications of a case that presents a certain complexity (thread).
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
The magistrate reports that, in the first place, Alberto Rodríguez was sentenced to a prison sentence of one month and 15 days and a special disqualification for the right to passive suffrage. This penalty was replaced by a fine. Bosch says that “this sentence could have two types of effects, one direct in the criminal sphere and the other indirect in the parliamentary sphere.”
2.- Rodríguez was sentenced to a prison sentence of one month and 15 days, replaced by a fine, and a special disqualification for the right to vote. This ruling could have two types of effects, one direct in the criminal sphere and the other indirect in the parliamentary sphere. pic.twitter.com/Tit3RLAoRR
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
He then clarifies that in the first area “the disqualification for passive suffrage does not make the deputy lose his position. It would only prevent him from running for elections during the time of the sentence.”
3.- In the criminal sphere, the disqualification for passive suffrage does not make the deputy lose office. It would only prevent him from running for election during the time of his sentence. Direct compliance with the ruling does not lead to the removal of the deputy.
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
And he points out that he could have lost his seat if he had been sentenced to special disqualification from public office. But this is not the case, the Supreme Court did not impose that penalty on him.
4.- Yes, a sentence to special disqualification from public office would have made him automatically lose his status as a deputy, because that effect is provided for in the law. But the Supreme Court did not condemn this disqualification.
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
And the magistrate shows how, indeed, there are differences in the two types of disqualification.
5.- The difference between the effects of both disqualifications can be verified in articles 42 and 44 of the Penal Code. There cannot be the same consequence for regulations that are different. pic.twitter.com/iE7XUBAZOP
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
Understanding this, we move on to the consequences in parliamentary waiting.
6.- On the other hand, the Supreme Court ruling may cause indirect effects in the parliamentary sphere. Article 6 of the Organic Law of the General Electoral Regime sets consequences for custodial sentences.
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
Article 6-2 of the Organic Law of the General Electoral Regime “indicates that those who have been sentenced in a final sentence to imprisonment are ineligible.” However, “Article 6-4 regulates that this circumstance (for example, a prison sentence) would be incompatible with the position.”
7.- Article 6-2 of this law indicates that those who have been sentenced in a final sentence to imprisonment are ineligible. And article 6-4 regulates that this circumstance (for example, a prison sentence) would be incompatible with the position. pic.twitter.com/R1lZwjMJMP
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
And, as Joaquim Bosch affirms, “here comes the most dubious question. Rodríguez was sentenced to a fine, but instead of a prison sentence. Which of the two sentences should be taken as the basis for assessing whether there is incompatibility? The initial or the definitive one? “.
8.- And here comes the most doubtful question. Rodríguez was sentenced to a fine, but in lieu of a prison sentence. Which of the two penalties should be taken as the basis for assessing whether there is incompatibility? The initial or the final?
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
The lawyers in Congress made it clear in “a highly motivated report”: the penalty that must prevail is that of a fine, which is the one that was finally applied to Alberto Rodríguez, “and the one that is analyzed in the parliamentary sphere.” Well, as Bosch remarks, “the opposite would be to give preference to a prison sentence that does not exist.”
9.- The lawyers of the Congress of Deputies, in a highly motivated report, consider that it is the fine, since it is actually applied and the one that is analyzed in the parliamentary sphere. The opposite would be to give preference to a prison sentence that does not exist.
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
However, “lawyers say that doubts must be resolved in the most favorable sense to the fundamental right to political participation, as repeatedly stated by the Constitutional Court.”
10.- The lawyers also say that doubts must be resolved in the most favorable sense to the fundamental right to political participation, as the Constitutional Court repeatedly points out. The doubts are visible, faced with an issue that is not clearly regulated.
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
11.- These assessments of the lawyers’ report are very reasonable, because political participation is a basic fundamental right in a democratic society. It should not be restricted, except in cases where there are clear rules limiting it.
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
And who solves those doubts? That is the crux of the matter: it is up to Meritxell Batet, not the Supreme, who “lacks powers” in this sense.
13.- The assessment of these doubts corresponds only to the president and the board of the Congress of Deputies, and to the Electoral Board, without prejudice to legal actions in the contentious-administrative sphere. There the criminal chamber of the Supreme Court lacks powers.
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
And the president of Congress decided to withdraw the seat from Alberto Rodríguez. As Joaquim Bosch suggests, “it would be important to explain why the judgment of the chamber’s lawyers has not been followed in a matter that generates legal controversy.”
14.- The president of the Congress of Deputies has agreed to withdraw the seat from Rodríguez. It would be important to explain why the judgment of the chamber’s lawyers has not been followed, in the face of an issue that generates legal controversy.
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
And ditch the member of Judges and Judges for Democracy with an ordago.
16. In recent years, political tensions have led to some extensive interpretations against the right to political participation. That is not positive for pluralism, for the quality of democracy and for our system of fundamental rights (end)
– Joaquim Bosch (@JoaquimBoschGra) October 23, 2021
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