Madrid/Santa Cruz de Tenerife 9 (Europa Press)
The Constitutional Court is set to decide next week on the appeal put forth by the Government of Pedro Sánchez regarding the migrant minors protocol sanctioned by the Canarian Executive.
Legal sources consulted by Europa Press suggest that the majority of the Court is likely to support the position of Judge Ricardo Enriquez from the Conservative Wing, who recommends partially accepting the government’s appeal, arguing that the care of minors is fundamentally a matter of social welfare and therefore falls under state jurisdiction.
Moncloa contested the second, third, and sixth sections of the Canary Islands Government Agreement dated September 2, 2024, concerning migrant minors, as well as the resolution from the General Directorate for Children’s Protection and Families dated September 10, which establishes the territorial protocol for these minors in the Canary Islands.
The Court of Guarantees accepted the appeal for processing on October 8, simultaneously ordering the suspension of the validity and application of the contested provisions, even though they had already been invalidated by a ruling from the Superior Court of Justice of the Canary Islands.
The new protocol stipulates that prior to handing over the minor to the island authorities, a thorough identification review must be conducted, their registration in the registry of unaccompanied foreign minors (RMENA) is required, along with an administrative resolution for individual allocation or location from the relevant State authority, with a prior hearing conducted in the child’s mother tongue or another language they understand, and with the involvement of the prosecutor.
Upon confirmation of available spaces, the reception of the minor by the Autonomous Community will occur at police stations operated by the Autonomous Police of the Canary Islands or at designated sites where sufficient accommodations exist.
The Prosecutor’s Office, which took the matter to the ordinary jurisdiction on September 18, argues that this protocol denotes a “lack of immediate attention” to the evident vulnerability faced by migrants arriving by sea to the archipelago’s shores.
Specifically, it cites violations of the fundamental right to equality as recognised in Article 14 of the Constitution and in the Convention on the Rights of the Child, as well as the fundamental right to moral integrity detailed in Article 15 of the Constitution.
Minister Ángel Víctor Torres declared on September 24 that the Government would present the Canarian protocol to the TC following a ruling from the State Council asserting that “there are sufficient legal grounds” to do so.
The State Council noted that “the challenges which may arise in identifying and determining the ages” of these migrants, alongside “the inadequacy or congestion of local resources available to support them,” do not provide reasonable justification for the autonomous community to refuse the reception of minors located within their jurisdiction or delay the immediate assistance they might need.
Amnesty for Junqueras
Meanwhile, the TC appears poised to accept the appeal lodged by former vice president of the Generalitat of Catalonia and ERC leader, Oriol Junqueras, against the Supreme Court’s (TS) refusal to enforce the amnesty law.
As detailed in the agenda, from Tuesday onwards, the judges will also deliberate on the admission of appeals filed by former Conssellers Raül Romeva and Dolors Bassa.
Both leaders, like Junqueras, have appealed against two Supreme Court decisions: the one from July 1, which denied the application of amnesty; and that from September 30, where the Court reaffirmed its ruling by dismissing their petitions.
Legal sources consulted by Europa Press indicate that the majority of the Court seems ready to admit these appeals for processing, which would lead to further deliberation on the merits of the case in upcoming plenary sessions, determining whether the Supreme Court’s ruling was lawful. It should be noted that so far, all issues related to the ‘procés’ have been accepted for examination.
However, the sources caution that before progressing with the amparo appeals of those convicted in the ‘procés,’ a formal hurdle might be raised, as neither the challenge against conservative magistrate José María Macías nor the abstention of progressive Juan Carlos Campo has extended to these appeals.
Campo voluntarily recused himself after previously declaring during his time as Justice Minister that he believed the amnesty was “clearly unconstitutional,” while the progressive majority, when he served on the General Council of the Judiciary (CGPJ), expressed opposition to the law in two documents of institutional significance.
The plenary accepted both the abstention from Campo and the challenge against Macías regarding the unconstitutionality question presented by the TS and then extended them to the other three issues—all stemming from the Superior Court of Justice of Catalonia (TSJC)—along with the 16 unconstitutionality claims filed by the PP and the governments and assemblies of the autonomous communities under its control.
Technically, the extension was not agreed for the amparo appeals, which subsequently reached the Constitutional Court, as Junqueras and the other convicted individuals had to await the resolution of their case by the Supreme Court before presenting them. Therefore, consulting sources warn that this process could delay the admission of Junqueras, Romeva, and Bassa’s requested amparo.
Convicted for embezzlement
Conservative magistrate César Tolosa is responsible for drafting the providence in which Junqueras and Romeva will receive a response; while the President of the Court, the progressive magistrate Cándido Conde-Pumpido, serves as the reporter for Bassa’s case.
The three leaders convicted in the ‘procés’ have approached the Court of Guarantees, claiming that the Supreme’s decision infringed upon their fundamental rights. Last July, the judges presiding over the Catalan independence trial in the TS rejected the amnesty for those convicted of embezzlement regarding the illegal referendum of 1-O, asserting that they had gained personal benefits and negatively impacted the financial interests of the European Union.
This Supreme Court refusal directly impacted Junqueras, Romeva, and Bassa, as all three had been convicted of embezzlement. The high court’s determination not to apply the law upheld the disqualification sentences imposed upon them.
This measure—also implemented by the instructor of the ‘procés’ Pablo Llarena—extended to former Catalan president Carles Puigdemont and ex-councillors Toni Comín and Lluís Puig, who remain subject to active national arrest warrants.
It is also notable that the Supreme Court presented a matter of unconstitutionality regarding the Amnesty law, but this was focused on the crime of public disorder. The magistrates indicated that they acted from their “absolute conviction” that the norm violates “at least” the right to equality and the principle of legal certainty.
