I Think It Is Quite Unlikely That SC Can Annul The Pardons

Judge Pilar Llop Cuenca , a 48-year-old from Madrid, has been a regional deputy, a government delegate for gender violence, a senator, president of the Senate and is now Minister of Justice . He says that his work in the three branches of the State (judicial first; legislative, later; and executive now) has given him a “360-degree vision” to analyze current affairs.

In his answers, verbose as a judgment of the Supreme Court, he places respect for the procedures first, explains how he sees the facts and after several results and considerations, he dictates the verdict.

Question. Do you hope to renew the Council of the Judiciary in this legislature?

Answer. Nobody could foresee that some parliamentary group could be unfair with the Constitution and block the renewal. We must ask that the Constitution be complied with and that it be done with the current system, which is valid, constitutional and endorsed by an organic law that the PP itself respected and complied with when it governed and proceeded to appoint the members of Parliament, which is where it belongs.

This blockade creates a very bad image for SpainAs we saw in the last report on the rule of law by [EU Justice Commissioner Didier] Reynders. I met with him as soon as I arrived at the ministry and what the commissioner says is that the body should be renewed and then a debate on other models of advice of the Judiciary be opened. I already say that the Government of Spain defends the current model.

Q. Will you open a debate once the current Judicial Power is renewed?

R. Never avoid any debate. Of the European countries where there are councils similar to ours, the Spanish model is the one that gives that body the greatest independence and powers. If the Judicial Power is considered a power of the State, it is also of the citizens, who have something to say when deciding who will be the people represented in the Council of the Judicial Power.

This is a body that, among other things, appoints the Supreme Court justices. In the case of La manada, there was an absolute disaffection of the citizens towards a judicial resolution, a citizenry that did not understand that a legal interpretation had been made that did not correspond to reality and that was later restored in the interpretation by the Supreme Court..

That is why the Council of the Judiciary is so important, as it also decides on the disciplinary responsibility of judges, on the training of male and female judges, and of course citizens have something to say about all this. Another thing is that Parliament decides to change the model. That cannot be a bill that comes out of the Government, it has to be a bill that comes out of Parliament. Citizens, through their representatives, must decide which model they want.

P. But do you agree to open that debate before the renewal?

R. The debate is already open. Another thing is if we want a parliamentary debate to take place, which I think would be the right thing to do.

Q. If the Judiciary is renewed, would you like a woman to be elected as president of that body and of the Supreme Court?

R. It is clear that in the Supreme Court there is an underrepresentation of women, when there is also no reason why women are not represented in a percentage that reflects the very society in which we live. We are a little more than half of the population and we have to occupy public and decision-making spaces in the way in which our society is represented. It is a decision of pure democracy.

The question you are asking me is a necessity, I think it is obviously a question of democracy, which we have now or at any other time, but if it were now it would be very opportune, that once and for all there would be a woman who could preside over the General Council of the Judiciary and the Supreme Court. It is not a matter of electing women because they are women, but rather that, given equal merits, the sex that is less represented is chosen,

Q. Your predecessor announced several times an agreement with the PP to renew the council, but it never came true. Have you already spoken with the PP? Can you announce an agreement?

R. I am scrupulous with the division of powers. The renewal of the council cannot be an agreement of the Government, nor a party-to-party agreement, it is an agreement of the political forces represented in Congress and the Senate. Now, the more avenues of dialogue that can be opened , the better , provided they are aimed at reaching an agreement.

Conditions cannot be put forward when what is being done is to breach the Constitution, I ask that the Constitution be complied with, that there be a high view and a sense of State. This institutional blockade generates damage to the image of the institutions that should not be allowed in any way. So I ask that the PP proceed to unblock this situation.

P. The Constitutional Court is issuing very relevant sentences when a third of its members have expired for almost two years. And with one less magistrate, who resigned last October and has not been replaced …

R. My absolute respect for the Constitutional resolutions. That goes without saying. But you have to be realistic with the situation we have. There are 12 magistrates of the Constitutional, right now there is a vacancy and what also happens is that the casting vote of the president of the Constitutional can not operate. What is being generated is a dysfunction in the constitutional body, the guarantor of the Constitution, the guarantor of the rights and freedoms of citizens, the renewal of the Constitutional Court is also essential.

Q. You and President Sánchez maintain that the alarm decree that imposed the home confinement was in accordance with constitutional parameters , contrary to what the Constitutional Court understands. If the health crisis of March 2020 were to be repeated, would you once again opt for the alarm decree to confine the population?

R.Hopefully a similar situation will not occur again. The Constitutional Court has already ruled, but it is clear that it has been an internally controversial ruling where there have been five individual votes that have chosen because the appropriate legal instrument was the state of alarm and not the state of exception, and here I repeat, with a vacancy uncovered and where the casting vote of the president of the Constitutional Court, who understood that the corresponding state of alarm was, has not been able to operate.

But here I want to reflect on the circumstances in which the state of alarm occurred. When the interpretation of the right to freedom of movement is made, if it was a suspension of that right or was it a limitation, by the six magistrates who understand that what existed was a state of exception, They are situated in a perspective of 1981, when the Law of the state of alarm, exception and siege was enacted.

If this same situation had occurred at that time, 40 years ago, there would have been a total collapse of the State: Parliament would not have been able to function, a health, economic collapse, of the Judicial Power and of the courts and tribunals that would not have been able to hold virtual trials, as they have been holding now thanks to all the legislative development that has been done; Citizens would have been confined to our homes without having information about what was happening.

And yet that has not happened. Because we have been present, maybe not physically, but we have been present in working meetings, Parliament has been able to function through videoconferences … There are people who have had a very bad time and have not been able to continue with their normal activity, but for that a social shield has been developed to attend to their needs.

That collapse of the state has not occurred now, it would have occurred at that time [in 1981]. We must reflect on the right to freedom of movement and place ourselves in the current perspective, with the development of new technologies, which will allow us to get out of this crisis as soon as possible and with the least possible damage.

Q. Are you afraid that the Constitutional Court will address the sentence of the abortion law with the presentation prepared by the former PP deputy and magistrate Andrés Ollero?

R. I cannot venture what the Constitutional resolution may be, but what I can say is that now, when there is no clamor to reform the system of the current abortion law, which is a law of terms that when it was made placed us at the level of other democratically advanced countries in respecting the rights and dignity of women, the freedom to decide on their motherhood, which is something absolutely personal that women have and which corresponds to us by our very nature. Now is not the time that we have to touch on this issue. When it was tried by [Alberto] Ruiz-Gallardón, it cost him the position of minister.

This would mean an absolute setback for women’s health and reproductive rights, they would go underground, putting the lives and physical integrity of women at risk … What we have to do is advance rights. Spain is a country that has defended the equality of women and men, it is an advanced country that has made the most progressive laws in history when the PSOE has been in government: the law against gender violence; the equality law of 2007; In this legislature we have approved the euthanasia law, the law on violence against children and adolescents, the amendment of the Civil and Procedural Code for the recognition of the rights of people with disabilities, we are working on trans and rights law LGTBI, in the law against sexual violence.

What you ask me to go back and go back on women’s rights would, of course, take an unprecedented step backwards. Spain is a country that has defended the equality of women and men, it is an advanced country that has made the most progressive laws in history when the PSOE has been in government: the law against gender violence; the equality law of 2007; In this legislature we have approved the euthanasia law, the law on violence against children and adolescents, the amendment of the Civil and Procedural Code for the recognition of the rights of people with disabilities, we are working on trans and rights law LGTBI, in the law against sexual violence.

What you ask me to go back and go back on women’s rights would, of course, take an unprecedented step backwards. It is an advanced country that has made the most progressive laws in history when the PSOE has been in government: the law against gender violence; the equality law of 2007; In this legislature we have approved the euthanasia law, the law on violence against children and adolescents, the amendment of the Civil and Procedural Code for the recognition of the rights of people with disabilities, we are working on trans and rights law LGTBI, in the law against sexual violence. What you ask me to go back and go back on women’s rights would, of course, take an unprecedented step backwards.

It is an advanced country that has made the most progressive laws in history when the PSOE has been in government: the law against gender violence; the equality law of 2007; In this legislature we have approved the euthanasia law, the law on violence against children and adolescents, the amendment of the Civil and Procedural Code for the recognition of the rights of people with disabilities, we are working on trans and rights law LGTBI, in the law against sexual violence.

What you ask me to go back and go back on women’s rights would, of course, take an unprecedented step backwards. the modification of the Civil and Procedural Code for the recognition of the rights of people with disabilities, we are working on the trans law and on LGTBI rights, on the law against sexual violence.

P. Two magistrates of the Constitutional have signed individual votes against the sentence that endorsed the sentences of the Supreme Court to the leaders of the procés . Those two magistrates considered the penalties for sedition disproportionate. Have they definitively put the reform project on the crime of sedition on hold ?

A. It is definitely not parked. But I would like to separate the debate on the reform of the Penal Code, not only regarding the crime of rebellion and sedition, but also regarding other conducts, from the issue of Catalonia. A study is being carried out in the Ministry of Justice aimed at a better regulation of these crimes to adapt them to other democratic countries, and the rule of law in our environment, and analyzing the proportionality in the penalties for these crimes.

It has not been parked, but let us remember that the President of the Government has said that currently there are not the necessary majorities in Congress and the Senate to be able to approve a reform of these characteristics, but the work is being done.

Q. Can the Contentious Chamber of the Supreme Court annul the pardons of the Government to the Catalan independence leaders?

R. I do not know what the Administrative Litigation Chamber is going to do, but I sincerely believe that it is quite unlikely that this will happen from a legal point of view.

Q. If former President Carles Puigdemont returns to Spain, will he be arrested?

R. We must await the decision of the European Court of Justice on the preliminary ruling that Judge Llarena has raised, which will shed light on the action of the Belgian courts in relation to the Euroorder, whose compliance should be automatic and not be subject to any type of question on reciprocity in the legislation of one country and another. The decision of the High Court of European Justice will set a precedent for all the countries of the Union and for the application to be given to the arrest warrants.