It will decide on this precautionary measure after listening to all the parties involved
MADRID, 19 Oct. (EUROPA PRESS) –
The Contentious-Administrative Chamber of the Supreme Court (TS) has considered that there is no “urgency” for it to decide whether to suspend the appointment of Rafael Mozo as interim president of the General Council of the Judiciary (CGPJ) because it does not appreciate that it is causing ” irreparable damage” in the member who appealed said appointment, Wenceslao Olea.
In a decision advanced on Tuesday, the Sixth Section of the Third Chamber agreed to dismiss the very precautionary measures included in Olea’s appeal against the agreement reached last Thursday by the Plenary Session of the CGPJ to elevate Mozo as its “substitute president”, which It meant dividing the head of the Judiciary, since Judge Francisco Marín Castán has served as interim president of the TS since the resignation of Carlos Lesmes took effect.
In the order, known this Wednesday, it is explained that Olea warned that, if Mozo is allowed to act as “alternate president”, the CGPJ will function “with a composition contrary to law, thus presumably causing the nullity of thousands of resolutions on the judicial career, as well as other agreements of institutional and constitutional importance”.
However, the Sixth Section indicates that “it is not possible to grant what was requested” because “it is not proven that the contested agreement causes irreparable damage in the legal sphere of the appellant that makes it essential to adopt with special urgency and unprecedented part the precautionary measure that is aims to”.
Consequently, the magistrates, in a presentation by Eduardo Espín, agree to process Olea’s request to suspend Mozo’s appointment through the usual channel of precautionary measures, which implies listening to the parties. Thus, he gives transfer to the State Attorney for a period of ten days.
The Supreme Court has not yet ruled on the merits of the appeals filed by both Olea and the secretary of the CGPJ, José Luis de Benito, against the Plenary agreement, which went ahead with 16 of the 18 votes at stake, since Olea he was the only one who voted against and the other dissenting member, Mar Cabrejas, directly opted to absent himself from the vote, considering that it was illegal.
Olea then issued a separate vote in which he already advanced that, in his opinion, splitting the presidencies of the CGPJ and the TS is illegal because the Constitution and the Organic Law of the Judiciary (LOPJ) impose that whoever exercises that of the Supreme also carries out the of Council.
“Nothing more and nothing less than the Constitution is being violated,” warned Olea, who in addition to being a member of the current CGPJ is a magistrate of the Contentious-Administrative Chamber.
Likewise, it showed that Mozo “does not meet any” of the legal conditions to establish himself as president, that is, to be a member of the judicial career with the category of magistrate of the TS and meet the requirements to be president of the Chamber of the same, or be a lawyer of recognized competence with more than 25 years of seniority in the exercise of his profession.
Olea also warned that with the appointment of Mozo the “legality” of the agreements adopted by the Council from now on was at stake, thus anticipating a judicialization of the conflict that he finally materialized this week.
He also wanted to underline the “disastrous legal situation” that has been caused and, in particular, the “undesirable, confusing and tortuous situation” that the CGPJ is going through due to “a thoughtless legislator who has acted with spurious and imminent party interests”, alluding in this way to the reform promoted by the Government that prohibits the governing body of the judges from making discretionary appointments in the judicial leadership with an expired mandate.
The succession conflict was unleashed on October 9, when Lesmes announced his resignation as president of the CGPJ and TS –positions held by the same person– due to the lack of tangible progress in the negotiations between PSOE and PP to renew the body of government of the judges, as he had warned during the opening of the judicial year, on September 7.
Lesmes tried to leave his succession tied by commissioning a report from the Technical Office of the TS that would determine how he should be replaced. The experts concluded that the same person should replace him in both positions and pointed to Marín Castán for being the one who temporarily holds the Vice Presidency of the Supreme Court.
However, the CGPJ appointed its own president arguing that Marín Castán lacks legitimacy to assume both presidencies because he has held the Vice Presidency of the Supreme Court on an interim basis since 2019. For the same reasons, the members conceded that Mozo will not be able to act as the highest authority of the Supreme Court either. TS.
The bicephaly was staged on Tuesday during the inauguration of Dolores Delgado as court prosecutor in the TS. The act was presided over by Marín Castán, who occupied the main seat of the court; while Mozo sat in a secluded chair that is destined for the representatives of the Judicial Power who come dressed in robes to solemn celebrations.
