The Supreme Court considers that the explanations given by the Ministry of the Interior to dismiss Colonel Diego Pérez de los Cobos as head of the Civil Guard in Madrid were "confusing" and were based "on reasons other than those adduced to justify it."
This is what the high court says in the sentence in which it argues its decision, known this Tuesday, to consider the dismissal of the colonel illegal.
The dismissal occurred in May 2020, days after the dispatch, without prior knowledge of the Interior, of a report from the Civil Guard to the judge who was investigating the call for mass acts such as the 8-M demonstration, Day of Women, shortly before the state of alarm for covid-19 was declared.
According to the Supreme,
The sentence of the National Court that has now been confirmed by the Fourth Section of the Contentious-Administrative Chamber ordered the Interior to return the colonel to the position from which he was dismissed and pay him compensation for the salary he had stopped receiving since his dismissal .
The resolution of the high court does not modify anything in that ruling, so the ministry will have to execute both impositions.
Since the Supreme Court's decision became known, Minister Fernando Grande-Marlaska has suggested that "the objective reasons" that led him to lose confidence in Pérez de los Cobos and determined his dismissal are still maintained.
In an intervention in Congress on Wednesday, he linked that mistrust to the role that the high command had in controlling the reserved funds during the so-called Operation Kitchen,
The Interior resolution with which the dismissal of Pérez de los Cobos was formalized indicated the "loss of confidence" of the General Directorate of the Civil Guard (headed at the time by María Gámez, who resigned last week) and of the management team of the ministry "for not reporting the development of investigations and actions of the Civil Guard in the operational framework and of the Judicial Police for information purposes."
The Supreme Court ruling, for which Judge José Luis Requero has been a rapporteur, considers that this argument is not enough to comply with the legal requirement of motivating the dismissal of discretionary charges, according to the repeated interpretation that the court has given in similar cases.
Interior, according to the Supreme Court, should have explained why the "professional trust" that led to his appointment as head of the Madrid command was lost and why "the conditions are no longer met to carry out a post meeting their requirements."
The magistrates admit that in any dismissal from a discretionary position there will be a nucleus "of free appreciation that is not for the judge" to assess, but this does not mean, adds the court, that it may be considered whether "the facts on which the decision was based are true." supervening loss of suitability”.
"If it is required that the reason for the dismissal be made explicit - and it has been done - it cannot be excluded without further ado that it can be prosecuted," says the court, which corrects the magistrates of the National Court who endorsed the dismissal of the colonel on appeal. pointing out, among other arguments,
In the case of Pérez de los Cobos, the reason given by the Interior was not only "confused", points out the Supreme Court, but also "contrary to the function of the Judicial Police, because what the higher bodies of the Ministry of the Interior did not know and about what it is said that the appellant did not report, were the 'investigations and actions of the UOPJ [Organic Unit of the Judicial Police]', which was expressly prohibited by the magistrate who directed the investigation”.
The magistrates recall that the Judicial Police "was under the orders of the magistrate who directed the investigation without government interference being admissible, and even less if the magistrate had ordered absolute secrecy and that only she be informed."
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