The Central Court of Contentious-Administrative 8 of the National Court has annulled and annulled the dismissal of Diego Pérez de los Cobos as head of the Civil Guard Command in Madrid (Tres Cantos-Madrid) ordered on May 24 by Failure to report 8M investigation and has condemned the Ministry of the Interior to his reinstatement in the post.
The ruling establishes that the “motivation” that led to his dismissal was “illegal” because Pérez de los Cobos fulfilled his obligation by not reporting these investigations, which affected the then government delegate in Madrid, José Manuel Franco, because the instructor In that case, he had imposed the duty of reserve. In fact, the judge affirms that the colonel “could” have committed a crime if he had informed his superiors of the development of these actions. That investigation kept Franco charged for not having prohibited the mass meetings that took place in the nine days prior to the state of alarm, including the feminist march.
After hearing the ruling, a spokesman for the Ministry of the Interior has communicated that “from respect to judicial decisions, by disagreeing with the resolution (…) an appeal will be filed against it through the State Attorney.”
In the ruling, magistrate Celestino Salgado affirms that it is “indisputable” that “despite the legal duty of reserve and the express order of the magistrate to the Organic Unit of the Judicial Police (UOPJ), the appellant was dismissed for not reporting the development of investigations and actions of the Civil Guard, within the operational framework and of the Judicial Police, for knowledge purposes ”. In this way, he confirms that this was the true reason for the dismissal despite the fact that at first the Minister Fernando Grande Marlaska dissociated his dismissal from the investigation on the 8M.
“Not stating – adds the judge – in any way what information it was considered that the appellant should have communicated in his capacity as Head of the Madrid Command, we can only conclude that the reason for the discretionary decision to dismiss was illegal, insofar as that the dismissal was motivated by complying with what the law and the express judicial mandate ordered both the UOPJ and its superiors, not to report on the development of the investigations and actions in progress; which, among other things, could have constituted a criminal offense ”.
In his judgment, the magistrate points out that it is “a clear deviant exercise of the discretionary power that appears expressly included in the administrative file itself —proposal of cessation and resolution of the appeal—, against what is customary and that has motivated that the misuse of power is hardly appreciated by the courts ”.
“It is true that the decision to dismiss Colonel Pérez de los Cobos is revealed in the proposal of the General Director of the Corps, addressed to the Secretary of State for Security, for – we repeat once again – not reporting on the development of investigations and actions of the Civil Guard, within the operational framework and of the Judicial Police, for the purpose of knowledge; investigations that by the applicable legislation and by the express orders issued by the titular magistrate of the Court of Instruction No. 51 of Madrid, were subject to the duty of reserve both the UOPJ and their superiors, in this case Mr. Pérez de los Cobos ” .
For the magistrate, legality cannot be cornered by discretion, but, on the contrary, discretionary powers must be exercised within legality. “Acting discretionary cannot be a means to undermine the legality or undermine the legality to which we are all, ultimately, subject. That is why the exercise of discretionary powers is subject to jurisdictional control in the terms set forth “, he concludes.
After the dismissal was made public, the Minister of the Interior, Fernando Grande-Marlaska, went so far as to say in public that this dismissal responded to a broader restructuring within the Civil Guard and that his was a position of “confidence” of the Secretary of State for Security, denying at all times that it was linked to a controversial report delivered to the judge who was investigating the government delegate in Madrid at that time.
Days later, the proposal for the dismissal of Pérez de los Cobos was made public, which the general director of the Civil Guard, María Gámez, sent to the number two of the Interior and that it reflects that the reason for the dismissal was “the loss of confidence of the General Directorate and the Directorate Team of the Ministry of the Interior, not reporting on the development of investigations and actions of the Civil Guard, within the operational framework and of the Guard Civil, and Judicial Police, for the purpose of knowledge. ”The note was dated Sunday, May 24. That same night, the director telephoned Pérez de los Cobos to inform him of her dismissal.
After knowing the content of that note, the Interior Ministry released a comment from an official spokesperson who assured that Gámez’s proposal and the minister’s statements are compatible. “The dismissal of Colonel Pérez de los Cobos, as has been explained repeatedly, is part of the process of remodeling the Civil Guard and is specified, as specified in the dismissal proposal, due to a loss of confidence derived from , among others, because the procedure for communicating actions was breached, for the sole purpose of knowledge, not their content, which is due to the Civil Guard management through the chain of command, “he says.