May 12, 2021

The Supreme Court annuls two appointments to the Judiciary for “dispensing with” the “legal requirements” in a “friendly compromise”



The Supreme Court has annulled the appointments of two magistrates of the Military Chamber of the same court as a consequence of the two “infractions” detected in the procedure to fill both positions, which the General Council of the Judiciary (CGPJ) awarded in November 2019 – with the term expired – to justices Ricardo Cuesta and Fernando Marín. It is, on the one hand, irregularities in the making of shortlists, of which candidates considered “suitable” were left out; and, on the other, of the omission of three mandatory reports established in the call

In the ruling on the appointment of Fernando Marín, the judges of the Sixth Section of the Contentious-Administrative Chamber question that the Permanent Commission – in charge of choosing the shortlists of applicants on which the Plenary later decides – proposed only two candidates for each of the squares despite the fact that he considered four “suitable” and “with very similar potentialities”. “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 speculations about the selection of each one of them. the pairs ”, says the resolution.

On the other hand, the judges understand 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 indicates that once its requirement has been included in the bases with a mandatory character, this element of the procedure cannot be dispensed with a month and a half later. “Regardless of the reason why the reports were not requested, it cannot be admitted that in such a short period of time they would have gone from being useful to expendable to the point of not even being requested,” the judges maintain.

According to the ruling, these two “procedural infractions” have “invalidating effects” on the entire subsequent process and on the agreements challenged by a candidate for the positions called, the presiding auditor of the Central Military Court, Carlos Melón Muñoz, who was included in a of the two proposals to fill the positions that were raised to the Plenary. Specifically, in which Ricardo Cuesta would be chosen. The judgments agree that both procedures should be rolled back to the moment in which the Permanent Commission decided the applicants that it raised to the Plenary so that it could decide who promoted for the vacant positions.

Both sentences were handed down on April 8, just a few days after the reform that prevents the CGPJ from making appointments with expired mandate, a situation in which this body has been since December 2018. However, the resolution indicates that this reform cannot affect final judgments that take actions back to a time prior to the approval of that reform. Consequently, it gives the CGPJ a period of one month for the procedure to be repeated “in accordance with the law” in the circumstances and conditions existing at that time and “with respect to the legitimate interests of the subjects affected by the irregular action of the aforementioned Council. ”.

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