June 18, 2021

The Judicial Branch reappoints the same judges whose appointment was annulled by the Supreme Court

Ricardo Cuesta and Fernando Marín will once again be magistrates of the Supreme Court. The General Council of the Judiciary (CGPJ), with broad support, has agreed in an ordinary plenary session held this Monday to assign them again the two places in the Military Chamber that they occupied until last April, when the High Court annulled their appointments after verifying various irregularities in the adjudication procedure and gave the judges’ governing body a month to repeat it.

The Senate definitively approves the reform that prevents the Judiciary from making appointments in office

The Senate definitively approves the reform that prevents the Judiciary from making appointments in office

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Although the judgments that declared these appointments null and void were handed down ten days after the entry into force of the reform that prevents the CGPJ from making appointments with expired mandate -Situation in which this body has been since December 2018-, the Supreme Court indicated that this reform could not affect final sentences that would take actions back to a time prior to their approval. And he gave the CGPJ a period of one month to repeat the procedure “in accordance with the law” in the circumstances and conditions existing at that time. At the request of one of the candidates, the Chamber even issued a subsequent order in which it pointed out the “irrelevance for the litigation” of this reform and reiterated that the sentences had to be executed on their own terms within the established period.

This mandate has been accepted by the majority of the plenary session to approve the allocation of places. The election of Fernando Marín has gone ahead with 18 votes in favor and that of Ricardo Cuesta with 15, since three members – Nuria Díaz, Carmen Llombart and Wenceslao Olea – have supported Carlos Melón, who was the candidate who challenged before the Supreme Court both appointments. In addition, the members Roser Bach, Enrique Lucas and Concepción Sáez, belonging to the progressive sector, have voted blank in both appointments.

“Friendly compromise”

The judges of the Sixth Section of the Contentious-Administrative Chamber annulled the appointments of Cuesta and Marín that the CGPJ had made in November 2019 – with the mandate expired – after having found irregularities in the preparation of the shortlists, of which candidates considered “suitable” were left out; and the omission of three mandatory reports established in the bases of the call.

In the ruling on the appointment of Marín, the magistrates question that the Permanent Commission – in charge of choosing the list of candidates on which the Plenary later decides – proposed only two candidates for each of the positions despite the fact that it considered “suitable” and “with very similar potentialities” to four. “What they could not do was simply dispense with the legal requirements and make a friendly compromise with both positions, two candidates for each of them, a decision that opens the door to all kinds of possible speculation about the selection of each one of them. the pairs “, maintains the resolution.

On the other hand, the judges understood that the CGPJ also violated the procedure to fill said positions by omitting the process of collecting three mandatory reports – from the Government Chamber of the Central Military Court, the President of the Fifth Chamber of the Supreme Court and the Ministry of Defense – contemplated in the bases of the call. The Chamber indicated that once its requirement is included in the bases as mandatory, this element of the procedure cannot be dispensed with a month and a half later. “Whatever the reason for the reports not being requested, it cannot be admitted that in such a short period of time they had gone from being useful to expendable to the point of not even being requested,” the judges maintained.


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