It will decide on the precautionary measure requested by a member and the secretary of the CGPJ after listening to the parties
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” to the two people who have appealed said appointment, the member Wenceslao Olea and the secretary of the CGPJ, José Luis de Benito.
Both Olea and De Benito appealed the agreement adopted by the plenary session last Thursday with which the CGPJ chose Mozo –the oldest member– as its “substitute president” and asked the high court in their respective challenges that, as precautionary measure, suspend this designation.
The Sixth Section of the Third Chamber already rejected on Tuesday the extremely precautionary measures demanded by Olea and, in another order signed this Wednesday, it has done the same with De Benito’s request.
In both cases, the magistrates indicate that “it is not possible to access 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 presentations by Eduardo Espín and Octavio Herrero, agree to process the requests to suspend the appointment of Mozo through the usual channel of precautionary measures, which implies listening to the parties. Thus, they give transfer to the State Attorney for a period of ten days.
According to the judicial resolution, De Benito warned in his appeal that “maintaining the enforceability of the agreements challenged here would entail the cause of very serious irreparable damage of an imminent nature for the activity of a constitutional body of the relevance of the CGPJ.”
“Such damage is immediate and imminent,” he said, because the “radical nullity” that he appreciated in Mozo’s appointment will be projected on all the decisions that the CGPJ adopts from now on.
Along the same lines, 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 as well as other agreements of institutional and constitutional importance”.
THE QUESTION OF LEGITIMATION
The Supreme Court has not yet ruled on the merits of the appeals against the Plenary agreement, which went ahead with 16 of the 18 votes at stake, since Olea was the only one who voted against and the other discordant member, Mar Cabrejas, He directly chose to absent himself from the vote, considering that it was illegal.
One of the problems raised by both resources, according to the legal sources consulted by Europa Press, is that it is not clear that Olea and De Benito can challenge the Plenary agreement because article 20.a) of the Law Regulating the Contentious Jurisdiction- Administrative Law (LRJCA) establishes that “the bodies of the same and the members of its collegiate bodies cannot file a contentious-administrative appeal against the activity of a public administration.”
Although the legitimacy of Olea and De Benito will be an issue to be resolved later by the Third Chamber, the secretary of the CGPJ already advanced in his appeal to this debate alleging that “professional and institutional interests concur” in his person that he considers sufficient to exempt the application of the aforementioned provision.
Specifically, according to the order issued this Wednesday, De Benito stated that “the nullity of the challenged act will affect the legitimate and valid exercise of his powers as Secretary General of the Judiciary.”
OLEA’S ARGUMENTS
On the same day the 13th, Olea 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 the Supreme also performs that of the 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.
BICEFALIA IN THE JUDICIAL POWER
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.
