The provisional detention order with communication for the former secretary of organization of the PSOE, Santos Cerdán, issued on June 30 by an examining judge of the Supreme Court, quickly eclipsed the attention given to another order issued by the Extremadura High Court (TSJ). In this second, its competence to continue prosecuting a deputy of the Assembly of that community, Miguel Ángel Gallardo Miranda, was declined. In this order is addressed the reasoned exposure submitted by the presiding magistrate of Investigating Court No. 3 of Badajoz, in which, in addition to the indications of criminality obtained against the deputy in an ongoing case, the suitability of parliamentary immunity as a consequence of “the manner, means and haste in which the status of deputy is obtained” was questioned, noting that it could constitute conduct constituting a fraud of the law.
The investigating magistrate highlights that a series of maneuvers by Gallardo Miranda have taken place to obtain the deputy’s seat and the guarantee of immunity, which brings with it, for the purpose of transferring his processing from the Investigating Court and the Provincial Court of Badajoz to the TSJ. And she suggests that the guarantee of parliamentary immunity should not depend on the automatic application of art. 18.2 of the Extremadura Statute of Autonomy, but on how the office was reached.
“A significant prejudice is detected in the exposure of both judicial bodies regarding the appointment of parliamentarians throughout the legislature versus the appointment to offices after elections, when in both cases the same electoral will determines and legitimizes which candidates will be deputies”
In the case of autonomous parliament members, the proclamation of elect status makes the deputy enjoy his rights and prerogatives (art. 15.2 of the Regulations of the Assembly of Extremadura). From that moment, the bodies competent to prosecute a deputy shall be the TSJ of the Community or the Supreme Court, depending on the territorial scope of the criminal conduct. The end of the mandate entails the end of that special competence, unless for the sake of the process the body, for good reason, retained the competence. The Constitutional Court (TC) left that door open because the most common form of fraud had consisted of delaying the immunity for as long as possible and when the end of the instruction was approaching, resigning the office so that the matter would return or be received by the court with ordinary jurisdiction, significantly delaying the resolution of the matter. Therefore, initially, the TSJ of Extremadura, which recognizes itself competent to prosecute deputies in statutory terms, lacked precedent for its decision.
That lack of doctrinal ground is evident from the outset of the Order, which becomes entangled with an excess of explanations that go beyond the incident, to later focus on the elements by which, in their view, the fraud of law occurs. To the extent that the fraud file seeks to exclude the application of the legal norm of jurisdiction, the body scrutinizes the magistrate’s arguments and reiterates time and again the enabling rules to determine whether the conduct of the named deputy sought, through a biased path, “to alter the competence of the ordinary judge predetermined by law”; or, in their own words, “fraud of the law is not presumed, it must be deduced from earlier, contemporaneous or subsequent elements”.
In the behavior of the body, the statements made in Judgment 122/2021 by the Constitutional Court weigh heavily to justify the continuation of the Supreme Court’s competence in prosecuting the acts of the procés. Among other conditions, it requires that “the interpretation and application of the norms of jurisdiction carried out by the ordinary jurisdictional body be grounded in law, that is, not arbitrary, manifestly irrational or a consequence of a patent factual error (…), for if that were the case, the effect of such improper application of the norm would undermine the legislative monopoly in the prior determination of the jurisdictional body that must hear the case”.
For the judicial bodies the chain resignations of candidates ahead of Gallardo Miranda on the electoral list are suspect and do not respect ordinary legality. Including the resignation of the deputy who vacates a seat in the Assembly and her appointment as an elected official in a short period, between May 19 and 21, just one day before the investigating magistrate ordered the opening of the oral trial. Certainly, that these are clearly questionable actions does not automatically mean they are illegal.
From the outset, there is a notable bias in the exposure of both judicial bodies regarding the appointment of parliamentarians during the legislature versus the appointment to offices after elections, when in both cases the same electoral will determines and legitimizes which candidates will be deputies. Our electoral laws do not contemplate partial elections when vacancies occur; with party-list voting, a system has been enabled whereby when a vacancy is verified, the next unappointed candidate on the electoral list is named as deputy-elect; this is also regulated by Extremadura Electoral Law (art, 19.2). Vacancies are known to the Assembly Board, which requests the appointment of the candidate corresponding to the Junta Electoral de Extremadura (JEEx), and this body undertakes to proclaim the elect candidate, facilitate the corresponding accreditation and notify their appointment to the Chamber. Therefore, the only body with competence to proclaim a deputy-elect in the Extremadura arrangement is the JEEx.
The second fraud indicator arises from the fact that candidates occupying the 19th, 20th, 21st and 22nd positions via an individual notarial act, who sign voluntarily, renounce continuing to be candidates, i.e., their rights to be someday named deputies-elect. There is no specific regime for the instruments that may be used in that renunciation. Sometimes the interested parties notify it directly to the electoral board by an appropriate channel. On this occasion, a declaratory document validated by a public notary has been used, and the JEEx, again, the sole competent body, has accepted the resignations. The Order hints that the candidates who renounce remaining in the candidacy do not do so freely. Again, while congratulating the TSJ for uncovering the unwritten rules of the internal functioning of the parties, one must bear in mind that the candidates could not have renounced, the legal system protected them, and the manner of abandoning the candidacy has not been different from many other cases.
“The consequence of the Order maintaining the jurisdictional competence of the Investigating Court and the Provincial Court is evident: the TSJ has abdicated its competence, violating the law, relying on a criterion of intentionality and inventing procedures that do not exist”
Finally, an erroneous argument that recurs in different parts of the Order concerns the alleged competences of the Assembly’s Board in this entire process. The Board receives the resignation of a deputy and, once decision freedom is verified, notifies the vacancy to the JEEx. The people who resign as candidates relate only to the electoral body and are not obliged to resign before the Board; that requirement is not found in the articles of any of our parliamentary regulations. And, of course, the JEEx does not have to issue credentials to candidates who have resigned before it so that they can ratify their resignation before the Chamber’s Board. Legislation only requires that credentials be issued to the corresponding candidate according to their placement order. Moreover, if the Board erred and proclaimed a candidate elected incorrectly, those affected have the right to challenge the proclamation before the Administrative-Contentious chamber of the TSJ and, if applicable, by electoral appeal before the Constitutional Court. The Order notes that the conduct of those affected amounts to fraud against voters, which is true, since they voted for a candidacy organized in an order they cannot alter. But, the punishment for the party’s conduct that supported the candidacy will only correspond to the electorate body of the province of Badajoz in the May 2027 elections.
The consequence of the Order maintaining the jurisdictional competence of the Investigating Court and the Provincial Court is evident: the TSJ has abdicated its competence, violating the law, relying on a criterion of intentionality and inventing procedures, allegedly unfulfilled, that do not exist in our electoral or parliamentary law. It does so, moreover, without recognizing the agreement issued by the JEEx, which has carried out a legality check of the resignations of the candidates and has proclaimed Gallardo Miranda as deputy-elect.
Moreover, it has given rise to a situation of clear discrimination in the exercise of the representative public office, Art. 23 of the Constitution. Its decision has deprived of an essential element of the ius in officium, the immunity, to a deputy of the sixty-five who comprise the Extremadura Assembly; because, as Constitutional Court Judgment 22/1997 recalls, immunity not only affects jurisdictional competences, but clearly affects the statute of parliamentarians to which it is recognized.
