Tuesday, July 5

Back with the Court of Auditors and the process

Can accounting responsibility be demanded from the protagonists of some administrative acts in the exercise of the competences that they had attributed by the Statute of Autonomy and the legislation for its development without having previously destroyed the “presumption of legitimacy” of such administrative acts ? Can even a process of accounting prosecution be opened without such destruction of the presumption of legitimacy of the acts that are at the origin of said prosecution?

These questions are relevant to the prosecution by the Court of Accounts of Carles Puigdemont, Oriol Junqueras, Andreu Mas-Colell and several dozen other Catalan nationalist politicians for their participation in the referendum of October 1, 2017.

There is no doubt that the people whom the Court of Auditors has subjected to “accounting prosecution” have been the protagonists of various administrative acts in the exercise of the powers of the positions they held. The Court of Auditors identifies what these acts are, evaluates the amount thereof and then demands the responsibility corresponding to said evaluation.

Can the Court of Auditors act in this way? Can it demand accountability from the protagonists of said acts without having previously been appealed to the contentious-administrative jurisdiction and their presumption of legitimacy having been destroyed by a decision of the judicial power? Wouldn’t it have been necessary for the corresponding appeals to have been filed before the Contentious-Administrative Chamber of the Superior Court of Justice of Catalonia as a preliminary step for the exercise of accounting prosecution?

Organic Law 2/1982, of May 12, of the Court of Accounts, in Chapter III, “Accounting prosecution”, expressly says in article 16, b), that “the prosecution of: the questions submitted to the contentious-administrative jurisdiction “.

Obviously in this precept the legislator refers to the issues “susceptible to be submitted” to the contentious-administrative jurisdiction and not those that are already subject to said jurisdiction. The LO 2/1982 itself, in article 18.1 expressly says that “the accounting jurisdiction is compatible with respect to the same facts … with the actions of the criminal jurisdiction”, but it does not say so with respect to the contentious-administrative jurisdiction. Unlike. From the joint reading of articles 16, b) and 18.1 of LO 2/1982 just transcribed, no other conclusion can be drawn.

The Court of Accounts cannot “open” an “accounting procedure” with respect to administrative acts whose “presumption of legitimacy” has not previously been destroyed. Regarding the acts that are at the origin in this case of the “accounting prosecution” by the Court of Accounts, no contentious-administrative appeal has been filed. Therefore, they continue to be “allegedly legitimate acts” and as such they cannot generate liability of any kind.

The Court of Accounts has jumped over the contentious-administrative jurisdiction and launched an “accounting prosecution” without the inexcusable judicial budget to be able to do so. He has decided for himself that the acts for which he subjected his actors to “accounting prosecution” no longer had a presumption of legitimacy. And it is not like that. The presumption of legitimacy of the administrative act is the equivalent of the presumption of innocence in the criminal process. It cannot be assumed that it has already been destroyed, but must be unequivocally certified that such destruction has occurred.

The Court of Accounts has acted simultaneously as a Contentious-Administrative Court and as an Accounting Court, exceeding the exercise of the function entrusted to it by the Constitution and its Organic Law. It has taken for granted the destruction of the presumption of legitimacy of the acts of the people whom it is prosecuting in the accounting, without such destruction having been agreed upon by the person who can only do so, the contentious-administrative jurisdiction.

In my opinion, the passive protagonists of the accounting prosecution by the Court of Auditors should file a contentious-administrative appeal against such prosecution, requesting the nullity of everything acted by the Court of Auditors for failure to destroy the presumption of legitimacy of the acts for which they are being prosecuted.

In the world of law you can discuss “almost” everything, but not everything. It is the indisputability of a few things that allows us to civilly discuss all the others. And this is one of them. In this case, the decision of the Contentious-Administrative Chamber of the Superior Court of Justice of Catalonia destroying the “presumption of legitimacy” of the administrative acts is an unavoidable presupposition for an “accounting trial” to be opened by the Court of Accounts. against the protagonists of the same.

The Court of Auditors can make a “Report”, like the one requested by the Congress-Senate Mixed Commission at the end of 2017, in order to clarify whether the funds destined for Catalan foreign action had been used “in accordance with the principles of “economy, effectiveness and efficiency” and to express an opinion in that Report that the Catalan authorities have carried out a deviant exercise from the functions assigned to them, but they cannot convert that Report into an “Accounting Judgment.” For this, it is necessary, that prior to the contentious-administrative jurisdiction, which is the only one that can destroy the presumption of legitimacy of administrative acts, has opened the door to do so.

In accounting prosecution for administrative acts, the intervention of the judiciary is required before said prosecution can begin. It is an inexcusable requirement, the absence of which renders the action of the Court of Auditors null and void.