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A conservative member of the Judiciary asks to appoint military judges despite the fact that the law prohibits it because it has expired

2023-01-25T15:39:24.272Z


The blockade of the Central Military Court divides a CGPJ in functions that the law prevents from filling vacancies in the Administration of Justice


Opening of the military judicial year of 2021. From left to right, General Gerónimo Domínguez;

the then president of the Central Military Court, Carlos Melón;

the then president of the Judiciary, Carlos Lesmes;

and the then State Attorney General, María José Segarra. Europa Press

In a preview of the situation to which the entire Administration of Justice will be led if the renewal of the General Council of the Judiciary (CGPJ), blocked by the PP, is not urgently undertaken, the military jurisdiction has already entered into a tailspin.

The Central Military Court (TMC), the highest body of military Justice below the Fifth Chamber of the Supreme Court, has been paralyzed since last December when the last of the active robed judges that made it up, General Auditor, went to reserve Francisco Pascual Sarria.

This means that cases cannot be brought against the military or civil guards of employment equal to or higher than commander, nor against judges, prosecutors or secretaries of the military jurisdiction, nor resolve appeals against decisions of the central togados courts nor appeals against disciplinary sanctions. serious imposed by the heads of the armies, the undersecretary or the director of the Civil Guard.

The territorial military tribunals and courts that deal with cases against the lowest echelons of the Armed Forces and the Civil Guard are still functioning, albeit in an increasingly precarious manner.

Faced with this situation, in December the General Council of the Judiciary commissioned two of its members, the conservative José María Macías Castaño, and the progressive Clara Martínez de Careaga, to propose formulas to unblock Military Justice.

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Faced with the impossibility of reaching an agreement, both have proposed radically different formulas.

The first, which is characterized by being the most active of the members of the conservative bloc against the measures taken by the Government, proposes to circumvent the March 2021 reform, which prohibits the Council of the Judiciary from assigning seats in courts and tribunals with the mandate expired, as it has been for four years now.

The opinion that Macías has of this reform is made clear by describing it as "spurious" and attributing to it the objective of "preventing the proper functioning of the CGPJ and, incidentally, harming the proper functioning of the courts."

To solve the problem, he proposes to reinterpret the article that allows the Council, even while in office, to appoint two Constitutional magistrates and "perform those other functions that are essential to guarantee the ordinary functioning of the body" (it is understood that of the CGPJ itself) in the sense that this provision enables him to appoint judges of the military jurisdiction (and presumably also of the ordinary one) by the usual mechanisms.

As an alternative, if this option is not accepted, it proposes calling competitions for the provision of substitutions in military courts and courts, "without prejudice to the fact that the Ministry of Defense later grants the corresponding service commissions to the designated military judges", all of this based on a report from the Council's Technical Office on September 14.

On the contrary, Martínez de Careaga considers that the prohibition to fill judicial vacancies when the Council's mandate has expired also affects substitutions, as the Technical Cabinet itself had concluded in a previous report, dated July 15.

The vocal warns that, even if substitutes were appointed in military courts, that would not solve the problem, since the law requires that there always be a robed judge in court and a courtroom cannot be formed with more than one substitute, for what the resolutions issued by a court formed in this way could be challenged for being the same "manifestly incompetent".

The member admits that this is an "exceptional" situation, but warns that it is not a problem that occurred, since the seriousness of the situation was already warned by the interim president of the Central Military Court last summer when it could have been resolved , “and could still be so now”, according to the letter, with the mere process of promoting him from auditor general (brigadier general) to robed counselor general (division general), which would have allowed him to remain active.

In reality, the problem began to take shape when, in October 2021, the president of the TMC, the robed general counselor, Carlos Melón, went to the reserve and the CGPJ could not name a replacement, so Pascual Sarriá took charge of the interim presidency.

The report of the progressive spokesman concludes that the Council cannot, "without violating the law", convene processes for the appointment of substitutes, much less holders, in the military jurisdiction, "not even taking advantage of the exceptional situation in which it finds itself the Central Military Court", for which reason it proposes to notify the Ministry of Defense so that it adopts the pertinent measures to prevent it from running out of general of the legal body.

Although she doesn't say so, she suggests that he promote her until December interim president.

Sources from the military jurisdiction allege, however, that this is impossible, because he has also gone to the reserve.

On the other hand, the option defended by the conservative member could lead to a clash with the Government if it understands, like Martínez de Careaga, that it is an open violation of the law that cut the powers of the CGPJ in office as a way of putting pressure on to the PP so that it complies with the Constitution and already undertakes its renewal.

The two reports were going to be addressed by the Permanent Commission of the Judiciary at its meeting last week, but their debate was initially postponed for this week.

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Source: elparis

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