Concepción Sáez, member of the General Council of the Judiciary (CGPJ) at the proposal of Izquierda Unida, has signed a private vote in which he rejects the decision of the plenary session to reassign the two seats in the Supreme Court they occupied until last April, when the High Court annulled their appointments due to defects in form and gave a month to the governing body of the judges to execute that decision and repeat the adjudication process. Both magistrates were elected again this Monday for those positions in the Military Chamber by vast majority.
The Supreme Court annuls two appointments to the Judiciary for “dispensing with” the “legal requirements” in a “friendly compromise”
In the opinion of the vowel, who voted blank, the recent reform that prevents the CGPJ from appointing judges when it is in office – a situation that dates back to December 2018 – “disables” the plenary session to make these appointments, since that rule was already in place. force “at the time the sentence is handed down and executed.” The resolutions that declared both appointments null dated April 8 and the reform had entered into force on March 30.
In his letter, Sáez especially questions the lack of debate on the competence of the CGPJ in office to execute both resolutions. “It is incomprehensible that the president [Carlos Lesmes] decline to open a debate, in my opinion, essential to dissolve any reasonable doubt – which exists – about the effective capacity of the Plenary of the CGPJ in office to agree on discretionary appointments that have already been questioned and annulled once due to formal defects, and that it would be disastrous if they could become so again due to other defects of a similar nature ”, he maintains.
The annulled appointments of Cuesta and Marín were agreed on November 28, 2019. That is, when the CGPJ had already expired for almost a year. Consequently, Sáez defends that “even admitting in hypothetical terms that the retroaction of the effects of the nullities agreed by the Chamber [del Tribunal Supremo]”Would have placed the CGPJ on that date, the appointments should not have been made either because, as this vowel has been maintaining before the reform that prevents making appointments in office, the end of the ordinary mandate of the CGPJ determines, in their opinion,” the inability to validly exercise certain functions that during the ordinary mandate of the Board constitute the core of its powers, including and especially those relating to discretionary appointments ”.
On the other hand, the vowel also questions the “existence” of the military jurisdiction and affirms that “from the perspective of judicial policy, there is no reason whatsoever to support the presence of a Military Chamber” in the Supreme Court. In this sense, Sáez maintains that the matter itself lacks unique connotations and does not draw on its own methodology, but rather has to take it “on loan” from criminal, substantive and procedural law, and from administrative and contentious-administrative law; and it also questions the fact that military legal personnel “are inserted in a hierarchical structure incompatible with judicial independence.”