The door is once again opened for the Constitutional Court to rule on the suspension of voting for those naturalized through the 'grandchildren law' before the November 29 elections.
Three affected citizens and represented by the office of Baltasar Garzón have presented a brief to the Supreme Court asking that the precautionary measures that paralyze the right to active suffrage of 163,020 naturalized citizens be annulled. The legal figure used, an incident of nullity of actions, is presented as a prior step to requesting protection in the Constitutional Court. Sources from the office estimate that the times could add up and the matter could reach the TC before the elections.
If the claims of these three Spanish citizens were met, the guarantee body could provisionally annul the precautionary measure adopted by the Supreme Court, which would allow those naturalized to vote through the 'grandchildren law' in the elections called by Pedro Sánchez. Afterwards, the Constitutional Court should begin to analyze the merits of the matter. If nationalized citizens were not allowed to vote in the 29N elections but the Constitutional Court finally considered that the suspension of their right to vote was contrary to the law, this would open a way to try to challenge the electoral process.
In any case, before the matter reaches the TC, the Third Chamber of the Supreme Court must respond to the incident of nullity, upholding it or discarding it. Sources from Baltasar Garzón's office, ILOCAD, estimate that "it is likely that next week the Supreme Court will have ruled."
They also confirm that their intention is, in the event that the Supreme Court rejects their brief, to go to the TC. The Constitutional Court is not part of the ordinary jurisdiction, it is not integrated into the Judicial Branch. Its function is to act as the maximum guarantor of the constitution and protect the fundamental rights contained in the Magna Carta. To fulfill this last purpose there is a tool called appeal for protection.
For a citizen to ask the Constitutional Court to protect them against the violation of their fundamental rights derived from the actions of justice, the jurisdictional route must first have been exhausted. These three citizens cannot go to the TC if they have not exhausted all possible avenues before the Supreme Court. That is why the presentation of an incident of annulment is essential, as confirmed by sources from his defense and others from the Supreme Court.
When the incident has been resolved, the three citizens may, in addition to requesting protection, request the Constitutional Court to adopt a precautionary measure that immediately annuls the suspension decreed by the Supreme Court, also as a precautionary measure.
The frustrated appeal of the Ombudsman
This week, the Plenary of the Constitutional Court rejected the admission of an appeal for protection presented by the Ombudsman, which claimed exactly the same thing as these three nationalized citizens: annulling the suspension of the right to vote provisionally decreed by the Supreme Court and paralyzing it provisionally before making the final decision on the matter. Ten of the twelve judges of the Plenary Session rejected the admission due to the "premature" nature of the writing of the Defender Ángel Gabilondo.
The guarantee body stated that the jurisdictional avenue had not yet been exhausted and highlighted that the Supreme Court kept a period open for those harmed by the precautionary measures to appear and present the corresponding allegations. That period ended on Thursday. Among those represented are those represented by Baltasar Garzón's office, who are preparing the ground to go to the Constitutional Court in a different scenario.
The Supreme Court's decision
The Supreme Court keeps a procedure open to determine the legality of the instruction issued by the Ministry of Justice to limit the system of nationalization of foreigners under the 'grandchildren law'. The rule gives the possibility of obtaining nationality to foreigners of Spanish descent who fled the country during the civil war and Franco's regime for political, ideological, religious or sexual identity reasons. The senior official of Justice Sofía Puente issued an instruction that established the way to determine the status of political exile. The instruction presumes this condition to all Spaniards who left the country between 1936 and 1955.
The Supreme Court is studying this instruction and, in the meantime, has agreed to provisionally suspend the right to vote of those who became nationalized in this way. The precautionary decision entails, in the opinion of Garzón's office, a violation of the right to active suffrage, the principle of equality and the right to effective judicial protection.
"Neither the Spanish Constitution nor the organic law of the General Electoral Regime contemplate the possibility of suspension of the right to active suffrage," maintains the brief presented to the Supreme Court, which was accessed by 20 minutes. He adds that a "material defenselessness" has been "consummated", given that the adoption of precautionary measures took place before those affected could appear, despite the fact that they "directly affect" their right to active suffrage.
The firm's lawyer maintains that "the orders adopted regarding precautionary measures are arbitrary." He even argues that the precautionary measures are "illegal, because the right to active suffrage cannot be suspended by a direct judicial resolution, much less by an order of precautionary measures in the contentious-administrative field."
