MADRID, Spain – The Constitutional Court on Wednesday refused to admit the Ombudsman’s appeal against the Supreme Court’s decision to suspend the voting rights of those naturalised under the grandchildren’s law, with only two of the twelve plenary magistrates, progressive Ramón Sáez and former PSOE justice minister Juan Carlos Campo, supporting admission of the appeal.
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The vast majority of magistrates thus sided with the rapporteur, Enrique Arnaldo, who proposed in his draft ruling to reject admission of the appeal as premature. According to the ten plenary magistrates, Ombudsman Ángel Gabilondo acted hastily in filing the amparo appeal, as the ordinary jurisdictional route has not yet been exhausted, with appeals still possible before the Supreme Court. In a plenary accustomed to splitting into blocs, seven progressive and five conservative, on votes of major political significance, the consensus aroused by Arnaldo’s draft is unusual, with the two dissenting magistrates announcing they will file a dissenting opinion against the majority decision. With Wednesday’s decision, the Constitutional Court closes the door to correcting the Supreme Court in a ruling that will have a direct bearing on the 29 November elections.
The controversy originates in the grandchildren’s law approved in 2022, which grants the right to Spanish nationality to foreigners descended from Spaniards exiled for political reasons during the Civil War and Francoism. Once the norm was approved, the Ministry of Justice had to determine how the status of exile is certified, with the task falling to the director-general of Legal Security and Public Faith, Sofía Puente, who through an instruction issued in October 2022 established that the condition would be presumed for all Spaniards who left the country between 18 July 1936 and 31 December 1955, an instruction that is the object of the judicial controversy the Supreme Court must resolve.
On 8 September the Supreme Court decided to provisionally suspend the voting rights of those naturalised unless they documentarily prove that their ancestors had to go into exile and lost their nationality for political, ideological, belief or sexual orientation reasons, a suspension to remain in force until the Supreme Court rules on the merits of the matter, which will certainly happen after the elections. The Supreme Court’s step means that only those who certify that their ancestors were exiled for political reasons are allowed to register in the Electoral Census of Absent Residents, with the court ordering the Central Electoral Board to require this supporting documentation from those responsible for consular registries.
The Ombudsman, in an unusual decision, chose to file an amparo appeal before the Constitutional Court and ask it to provisionally suspend the precautionary measure adopted by the Supreme Court, thus allowing Spaniards naturalised under the grandchildren’s law to vote in the November elections. In the Ombudsman’s view, the decisions adopted by the Supreme Court generate a new situation, namely the suspension of the exercise of the active vote of national citizens who enjoy an acquired right, which generates undoubted legal uncertainty, with the appellant highlighting the constitutional relevance of what he raises given that the irreversible injury of the fundamental right to active suffrage is at stake. The Constitutional Court, however, stresses that the Supreme Court keeps in force until Friday a deadline for possible affected parties to appear in the proceedings, meaning the jurisdictional route has not been exhausted for the moment.
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The Constitutional Court is not a conventional court, forming part neither of the judiciary nor of ordinary jurisdiction, and one of its roles is to protect against possible violations of fundamental rights through the amparo appeal, including when that violation derives from an act of a court, but to resolve an amparo against a court’s decision the Constitutional Court must wait for the appellant to have exhausted the ordinary route.
