CONSTITUTIONAL COURT OF SPAIN Office of the President Press Office

PRESS RELEASE No. 127/2018

THE CONSTITUTIONAL COURT REJECTS IN LIMINE THE AMPARO APPEALS BROUGHT BY ANNA GABRIEL AND MIREIA BOYA, ON THE ALLEGED LACK OF JURISDICTION OF THE SUPREME COURT, DUE TO THEIR FAILURE TO EXHAUST PRIOR JUDICIAL REMEDIES

The Plenary Session of the Constitutional Court has unanimously resolved to reject in limine the appeal for constitutional protection (“recurso de amparo”) brought by Anna Gabriel and Mireia Boya against the jurisdictional decree (“providencia”) dated January 29th and the decision (“auto”) dated April 10th 2018. These resolutions were rendered by the Admission Chamber in matters of Special Cases (“Sala de Admisión del Tribunal de Causas Especiales”), an organ of the Criminal Chamber of the Supreme Court. These two rulings had declared the objective and functional jurisdiction of the Supreme Court to investigate and judge the appellants.

The judgements of the Constitutional Court concerning Gabriel and Boya, which have been drafted by Magistrate Cándido Conde-Pumpido, consider that the allegation of a violation of the appellants’ right to an ordinary judge as predetermined by the law “is premature, given the procedural stage in which it has been raised. Indeed, there is still an appropriate judicial venue which allows to raise issues of this nature”. That judicial venue consists in “raising the substantial question alleged in the present amparo proceedings in the framework of the jurisdictional appeal before the Supreme Court itself. Thus, the Supreme Court will be able, at that point, to rule on the raised question once it has gathered all the relevant elements during the investigation and taking account of the content of the accusations”. Once that eventual decision is reached by the Supreme Court, it may be liable to an assessment from the standpoint of the right to an ordinary judge as predetermined by the law (article 24.2 of the Spanish Constitution [CE]).

In their amparo appeal, the plaintiffs, who are facing charges of rebellion, sedition, misuse of public funds and disobedience claimed that their fundamental rights to an independent and impartial court as predetermined by the law (article 24.2 CE), to an effective judicial protection (article 24.1 CE) and to an effective appeal mechanism (article 13 of the European Convention on Human Rights) had been violated.

The judgement of the Constitutional Court, which carried out a thorough analysis of the previous constitutional case-law concerning this matter, has stressed a jurisprudential interpretation according to which amparo appeals brought on the occasion of unfinished criminal proceedings must not be granted leave to proceed. However, there are some exceptions to this principle according to the constitutional case-law, namely: a) whenever judicial resolutions affect fundamental rights of a substantive character, such as liberty; b) whenever a violation of a fundamental procedural right is raised; c) in the cases of the revocation of acquittal judgements in criminal matters that allow for a new trial.

In those situations, the Court examines, prior to the exhaustion of criminal proceedings, whether the grounds for amparo invoked by the appellants in their appeal may correspond to those exceptional cases.

Thus, concerning the alleged violation of the impartiality of the Criminal Chamber of the Supreme Court, the judgement holds that prior judicial remedies have not been exhausted by the appellants, since “the appropriate judicial venue in order to resolve the doubts concerning judicial impartiality is the disqualification procedure established in the Organic Law on the Judiciary [Ley Orgánica del Poder Judicial]”.

Regarding the alleged violation of the right to an ordinary judge as predetermined by the law, founded on the appellants’ view that the jurisdiction ratione personae belonged to the High Court of Justice of Catalonia, and not to the Supreme Court, the judgement points out that “the appellants (one of whom is in absentia and the other formally charged with the said criminal offenses) still have the procedural opportunity to file, before the Supreme Court, a jurisdictional appeal based on the latter’s absence of jurisdiction”.

In this vein, the judgement underscores that the fundamental element in this case is that, “since the proceedings constitute a criminal case brought before the Criminal Chamber of the Supreme Court, it is not possible to use the usual venue of the so-called “question of jurisdiction”; not only because of the lack of any hierarchically higher court, but also because article 21 of the Criminal Procedure Code (“Ley de enjuiciamiento criminal”) prevents any judge, court or party to the proceedings from challenging the jurisdiction of the Supreme Court”. Consequently, “in order to question the jurisdiction of the Criminal Chamber of the Supreme Court, the proper criminal proceeding is the so-called preliminary motion to challenge jurisdiction (“declinatoria de competencia”), which must be filed before the Supreme Court itself”.

Madrid, 17 December 2018