The Prosecutor’s Office of the Supreme Court (TS) does not see it necessary for the magistrates of the Fourth Section of the Contentious-Administrative Chamber to order that all records of registrations, cancellations and registrations in the census of Spaniards abroad (CERA) be preserved in full as a precautionary measure, as Hazte Oír has requested. In his allegations, to which LA RAZÓN has had access, the prosecutor opposes the measure “because there are no reasons to think that these do not exist or will be destroyed.”
The Public Ministry has opposed in its entirety – as has the Central Electoral Board (JEC) – the battery of precautionary measures requested by the association, which demands that the Chamber preserve these files from October 2022.
In that document, the prosecutor also does not believe that the Chamber should convey an “express order” to identify “the date and nature of the discharges” based on the presumption of exile established by the Ministry of Justice’s instruction to all those Spaniards who left our country between 1936 and 1955. “If not common sense, the report itself that in the file the Electoral Census Office (OCE) sends to the JEC shows that this information is available, given the statistical data offered,” he points out.
Likewise, it does not seem “admissible to convert this Chamber into an administrative control body to ensure that, neither during the course of the procedure nor in the future, it has to render monthly accounts on registrations, cancellations and census variations”, another of Hazte Oír’s precautionary requests. “This is a Chamber of Justice and does not correspond to the management and supervision functions that precisely the LOREG (Organic Law of the General Electoral Regime entrusts to the JEC), he emphasizes.
“Completely inadequate”
The association has also urged the Supreme Court to establish control over the assignments of those who have obtained nationality “to constituencies other than their last residence”, a measure that the Prosecutor’s Office sees as “completely inadequate, both because it is unrelated to any peremptory nature and because it is not related to the request made in the appeal, where what is urged is that an instruction be issued on municipal assignment.” “As if that were not enough,” adds the Supreme Court prosecutor Francisco Moreno, “it is precisely on this matter that the agreement that is being challenged has positively focused,” given that the JEC did rule on this matter, despite declaring itself incompetent (with four votes against) to rule on the precautionary stoppage of registrations in the foreign census that the high court did agree to later.
Nor is it justified, explains the Public Ministry, “why it should be agreed as a precautionary measure that from this moment on the JEC has a control tool designed and executed that, like a dashboard, monitors previous or future registrations.” Something that, in any case – he points out – could be “a final pronouncement of the Chamber” if the magistrates mostly appreciated “a deficit in supervision and direction of the Electoral Board over the Electoral Census Office, reaching the criterion of establishing that obligation to do.”
“Good governance” measures
In short, it concludes with respect to the requested precautionary measures that “neither all of them as a whole nor any in particular” deserve “a positive ruling by the Chamber.” Some because, he maintains, “they have nothing to do with precautionary matters” and others because in his opinion “they seem more like rules of good governance or good administration that allow a service to leave adequate traceability of its actions in order to facilitate auditing and control, which is not easy to marry with the purpose of this procedure.”
For the prosecutor, it is not even an easy task to “identify a clear connection between the measures requested and the claims of the appeal, outside of that which refers to the approval of an audit plan, which necessarily requires a trace of what is going to be audited and which is almost inherent to the Administration itself.” Well, for the Public Prosecutor’s Office, “it cannot be conceived” that it, “and of course the Electoral Census Office, “is issuing acts that imply the registration of the census without the appropriate procedure reflected in files that, logically, must be preserved.”
Nor does the Central Electoral Board see reasons to agree to any of the proposed precautionary measures, since a good part of them – the lawyer for the Cortes Generales and the JEC assures in his arguments – “would be subsumed in the precautionary measure already adopted by this Chamber.” Among them, of course, the suspension of registrations in the CERA due to the “grandchildren law” and the breakdown of the files resulting from the presumption of exile in the Justice circular.
The JEC vindicates itself: its action “has not ended”
On the other hand, it points out that the conservation of administrative files and documentation “already constitutes a legal obligation imposed on the Administration” both by the Law of the Common Administrative Procedure of Public Administrations and by the Law of the Legal Regime of the Public Sector.
The JEC defends its actions in this matter – now appealed before the Supreme Court by Iustitia Europa, Vox and Hazte Oír. Not only “did he not renounce acting nor abdicate his powers,” he defends, but he made “clear use of them by exercising those of direction and supervision of the Electoral Census Office attributed to him by law, “even though this exercise has not occurred in the sense expected by the appellant.”
And it especially emphasizes that the exercise of its powers “has not ended” since the Electoral Board “keeps open the possibility of future actions based on the response of the Census Office to its requests for information and proposed instructions to the Consular Offices.”