The report prepared by the legal service of the Constitutional Court on the appeal for protection presented by the Ombudsman after the suspension of the 'grandchildren law' proposes its outright inadmissibility.
In the internal note distributed to the magistrates, to which EL MUNDO has had access, Ángel Gabilondo's appeal is considered "premature." "Given that the amparo process is a subsidiary means of protecting fundamental rights, this appeal must be considered premature, since it is proven that it was filed while there was still an open door for a ruling from the ordinary jurisdiction. The appeal, therefore, does not respect the principle of subsidiarity from which the requirement of exhaustion of the prior judicial remedy derives," the document reads.
The report, requested by the rapporteur magistrate Enrique Arnaldo, highlights that "the constant doctrine of this court in matters of precautionary protection maintains that not every violation of procedural rules and rights produced in the processes related to the adoption and execution of precautionary measures is susceptible to becoming the object of the amparo appeal."
In this sense, the text abounds in that "the constitutional doctrine has indicated that in general, the resolutions issued by incidental, precautionary or interlocutory means, despite the fact that all the challenging possibilities are pursued against them, cannot be subject to protection in the constitutional headquarters until the judicial process in which they were adopted is concluded since, through the substantiation of the same, they can be examined and repaired by the ordinary judicial bodies, consequently making the subsequent intervention of the Court unnecessary. Constitutional".
"Only" when the judicial procedure has ended due to "a firm and definitive resolution having been issued, can the judicial remedy be understood to have been exhausted and, consequently, it is possible to go before this Court to request protection."
The document also notes that "it is certainly unusual" for the Ombudsman to file appeals for protection since he has only filed eleven appeals for protection in the entire history of the institution, the last of them in 2015. "In none of them has the adoption of precautionary measures with respect to a judicial resolution been requested," the report emphasizes.
The Fourth Section of the Constitutional Court has decided this Monday unanimously to refer to the Plenary Session - made up of all the magistrates of the body - the decision on the admission or inadmissibility of the appeal for protection presented by the Ombudsman.
The judges María Luisa Balaguer, Ramón Sáez and Arnaldo have understood, after meeting this Monday, that it is appropriate to raise the matter to Plenary given its nature and entity.
For its part, the plenary session chaired by Cándido Conde-Pumpido plans to meet this Tuesday and decide as soon as possible on the admission or non-admission of the amparo.
The Ombudsman's appeal asks the TC to lift the voting restriction immediately. The amparo dedicates a good part of its argument to maintaining that it meets the requirements for the appeal to be admitted, in particular that it is no longer possible to combat the imposition of the precautionary measure within the Supreme Court procedure.
The appeal also considers that the Third Chamber of the Supreme Court has generated discrimination. "The precautionary measure, by affecting only those who, benefiting from the Democratic Memory Law, reside outside of Spain and are registered in the CERA registry [Census of Spanish Residents Absent], does not, on the contrary, affect those who benefit from the Democratic Memory Law, even having been beneficiaries of the presumption [of the Ministry of Justice], generates unequal treatment between those who are in the same conditions and only differ by their place of residence (the foreigner or Spain, respectively).
Gabilondo has asked the TC to revoke the suspension of the vote immediately, given the imminence of the electoral call. "The holding of general elections on November 29, 2026 entails a series of procedures and preclusive acts very close in time that, in this case, could not be fulfilled if the precautionary measure was not adopted immediately. Not adopting it would determine the impossibility of voting for the citizens affected by the questioned Supreme Court resolutions."
