The role of the Constitutional Court as a guarantor of fundamental rights and the Supreme Court’s ruling on the “ERE” (collective redundancy procedures)

Abstract

The article first addresses, in general terms and without regard to the specific case of the ERE, the position of the Constitutional Court’s jurisdiction regarding the guarantees of fundamental rights and its relationship with that of the judicial bodies, including the Supreme Court. The Constitutional Court’s position determines that, in matters of guarantees, it always prevails over the Supreme Court. However, over time, the Constitutional Court has moved from the casuistry of its first decisions on whether rights were violated or not by the judgments of the judiciary to a systematization of such reasons, establishing self-limiting criteria to avoid substituting judicial decisions for its own in matters where the interpretation of the laws in light of the facts could admit several legitimate options. This is a self-limitation and not a limit necessarily imposed by the Constitution.

Any criticism from the judicial bodies would thus be unfounded, except with regard to the specific determination of the facts and their description, reserved in principle to the judicial bodies present in the evidence. However, in its assessment and qualification of the proven facts, the Constitutional Court may disagree with the assessment made by the judicial bodies, although it must do so with prudence and restraint to avoid becoming in practice a third instance, not because it is forbidden to do so, if it clearly understands that there has been an infringement of fundamental rights, but because there may be cases of doubt in which both the interpretation of the Law and the subsumption of the facts in the laws have legitimate margins of interpretation.
Secondly, the issue is addressed of the specific rulings of the Constitutional Court on the ERE (Employment Regulations)—from 93/2024 to 103/2024—which declared the violation of the right to criminal legality and the presumption of innocence by the Supreme Court and the Provincial Court of Seville. On the one hand, it is explained how, both in their motivation and in the manner of issuing them, the Constitutional Court’s rulings scrupulously adhere to the traditional doctrine of the Constitutional Court. On the other hand, it establishes beyond a shadow of a doubt that the principle of criminal legality has been violated when the conviction for prevarication for the convicted persons’ participation in a draft law is based on an unreasonable interpretation of the concept of “resolution” in an “administrative matter”, which also ignores that the draft law ultimately became law. The same applies to the presumption of innocence, as there is no evidence whatsoever that the convicted knew that a high-ranking official was, in some cases, diverting public funds for purposes other than those intended.