A member of the Constitutional Court warns that the exemption of EREs goes against EU law

A member of the Constitutional Court warns that the exemption of EREs goes against EU law
A member of the Constitutional Court warns that the exemption of EREs goes against EU law

The judge of the conservative wing of the Constitutional Court (TC) Enrique Arnaldo has shown his opposition to the court of guarantees exonerating embezzlement of the Andalusian ERE case, considering that it goes against European Union Law and has insisted that lead to “leaving unpunished” conduct of “particular gravity”“. The magistrate Ricardo Enriquezfrom the same sector, assures that the court “has exceeded” its function of control.

Specifically, Arnaldo opposes the sentences handed down on the cases of former Employment Minister Antonio Fernández, former Finance Minister Carmen Martínez Aguayo, former Innovation Minister Francisco Vallejo, former Deputy Innovation Minister Jesús María Rodríguez Román and former IFA/IDEA Director Miguel Ángel Serrano Aguilar.

According to the court of guarantees this Wednesday, the magistrates Cesar Tolosa and Concepcion Espejel –also from the conservative wing– They have announced that they will present dissenting opinions. The progressive sector judge María Luisa Segoviano has announced a concurring dissenting opinion on the sentences relating to Vallejo, Serrago Aguilar and Rodríguez Román.

In his dissenting opinion, Arnaldo argues that “although the misappropriated public funds do not have a community origin, It cannot be ignored that the principles of European Union Law “On the control of public spending are very relevant to analyzing the regularity of the actions of the managers of public funds.”

In this sense, he understands that “it does not seem risky to affirm” that the management of the ERE “has been contrary not only to the principles of internal Constitutional Law, but also to the principles of European Union Law.” Thus, he assures that they call you «powerfully the attention“the “eloquent contrast between the enhanced protection that the European Union attributes to the crime of misappropriation of public funds and the response given” by the Constitutional Court in its rulings.

For this magistrate, the resolutions of the court of guarantees “ultimately lead to leave unpunished particularly serious conduct committed by certain political leaders in one of the most serious cases of institutionalized political corruption in Spain».

Rulers who enjoy a protective shield

In six of the seven rulings handed down so far by the Constitutional Court on EREs, the court has established, in general terms, that the preparation of draft laws and their approval as bills by the Parliament of Andalusia cannot constitute the crime of prevarication.

In his dissenting opinion, Arnaldo criticizes the argument that the budget law “protects everything and erases all criminal responsibility in the conduct of those involved in the specific part of the so-called ERE case in Andalusia.” And he asserts that This analysis “ignores” the “constitutional principles governing the actions of public administrations”especially relevant in terms of public spending and its control.”

«The objectivity of administrative action is thereby sacrificed, making it immune and unassailable, creating a space of impunity in which certain rulers enjoy a protective shield. “which rejects any control or oversight, which is irreconcilable with the nature of the constitutional and democratic State of Law,” he says.

Arnaldo insists that the Constitutional Court should have entirely rejected the appeals filed by former officials of the Andalusian Government convicted for the EREs, considering that neither the Seville Court nor the Constitutional Court committed the violations of fundamental rights that they alleged.

On the sidelines, the conservative magistrate Ricardo Enríquez has issued a dissenting vote against the ruling on Serrano Aguilar. In the document he maintains that the Constitutional Court, in determining the violation of the right to the presumption of innocence of this former official, “has exceeded the function of external control attributed to this court.” He also criticizes the fact that the Constitutional Court has interfered in a function that only corresponded to the Seville Court. by assuming “his own judgment of evaluation of the evidence”».

On June 19, when the first ruling of the Constitutional Court in favor of a person convicted of ERE was announced, Arnaldo, Enríquez and two other judges from the conservative wing – Concepción Espejel and César Tolosa – wrote a dissenting opinion in which they stated that the court’s decision caused institutional damage that would be difficult to repair because it meant invalidating the ruling on ERE, while warning that it generated a systemic risk of impunity.

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