Misc 21/06/2021

The 'phantom' appeal against pardons

The jurisprudence of the third chamber of the Supreme Court anticipates the inadmissibility of pardons

3 min
Image of the façade of the Supreme Court in Madrid

MadridOnce the decree of pardons is approved by the Council of Ministers, it remains to be clarified whether the appeal that the Popular Party, Vox and Ciudadanos can appeal against it in the Third Chamber, of the contentious-administrative, of the Supreme Court.

And the jurisprudence of this room raises in advance that an eventual appeal would be condemned to be inadmissible at the stage of processing for lack of active legitimacy.

Even in the case of Vox?

It also applies to Vox.

There is a key resolution.

It is the cassation appeal of the Spanish Socialist Workers' Party (PSOE) against the resolution of the third section of the Administrative Chamber of the National Court by which it denied its active legitimacy to appeal, in 2012, the first additional provision of Royal Decree-Law 12/2012 of the 30th March by which various tax and administrative measures aimed at reducing the public deficit were introduced. That provision introduced the special tax declaration, that of the tax amnesty of the Minister of Finance Cristóbal Montoro.

The full court of 34 magistrates - including Margarita Robles, current Minister of Defense - dismissed the appeal for lack of standing.

"“The general doctrine that is extracted from the active legitimation of legal persons is fully applicable to political parties. So that this type of associative form by itself is not a sufficient reason to recognize a general active legitimation or of simple interest of legality, to be able to appeal in the contentious-administrative order provisions of a general nature.The fact that it is a political party does not add a plus in order to determine its active legitimacy, nor does it allow extending the scope of the mandatory legitimate interest in a diffused way to the objectives or purposes of the general police interest of the party".

Does the interest that can be invoked for the fulfilment of legality legitimise an appeal?

"The mere interest of legality -says the sentence- does not constitute without more, sufficient legitimate interest to enable access to the jurisdiction...".

It adds: "The fact that the parties are the channel of political participation, and contribute to the formation of the popular will, is not enough to give them legitimacy to challenge any administrative capacity, if a specific connection with a concrete interest, action or functioning of the party is not appreciated... It is necessary that it can have repercussions, directly or indirectly, but in an effective and accredited way in the sphere of the political party, not in a hypothetical, abstract, general or potential way".


And the case of Vox? It is not a party to the pardon file. On this side there is no legitimation.

But could the fact that it has participated as a popular accusation in the trial of the Catalan independence bid be considered an effective and accredited repercussion to legitimize its possible appeal?

Precisely, being a popular accusation supposes a generic interest in compliance with the law in the legal system. That is to say: since he was not aggrieved -particular accusation- his appeal would be situated in the "mere interest of legality", which, according to the plenary session of the Third Chamber, does not allow for appeal.

And a more recent order, dated 31st July 2020, of the fourth section of the Administrative Chamber of the Supreme Court, ratifies the criteria of the plenary session of 3rd March 2014.

It refers to the challenge by PP and the MPs of Vox to the appointment of the then Vice-President Pablo Iglesias to the delegated commission for intelligence matters (National Intelligence Centre).

In both cases, the fourth section points out that recognizing the legitimacy of political parties and individual deputies to challenge any action of the government and the administration "would be tantamount to recognizing them a kind of covert popular action, which is not attributed to them by our legal system".

Neither PP, nor Ciudadanos, nor Vox, therefore, have the legal standing to appeal.

The kamikaze ruling of November 2013, on the other hand, qualifies the merits of the pardon decrees as untouchable.