• Justice: Judicial slap to Grande-Marlaska: he orders him to restore Civil Guard colonel Diego Pérez de los Cobos

  • Interior.Marlaska vetoes the promotion of Diego Pérez de los Cobos to general

The National Court has annulled the dismissal of Colonel Diego Pérez de los Cobos as head of the Civil Guard Command in Madrid and has condemned the Ministry of the Interior to re-enter the post.

The ruling of the Central Contentious-Administrative Court 8 concludes that the reason for the dismissal was not the loss of confidence, as argued by Minister Fernando Grande-Marlaska in Congress, but rather a retaliation for having maintained the secrecy demanded by the judge of the 8-M and not having informed superiors of the development of this investigation.

"This is not a dismissal due to loss of confidence; the dismissal is actually a disguised administrative sanction resulting from the fact that the dismissed Colonel did not carry out the openly illegal act that was expected of him," says magistrate Celestino Salgado.

"What is indisputable is that despite the legal duty of reserve and the express order of the Magistrate, the appellant was dismissed for not reporting the development of investigations and actions of the Civil Guard, within the operational framework and of the Judicial Police, for knowledge purposes, "he adds.

"Since there is no record of what information the appellant was considered to have communicated in his capacity as Head of the Madrid Command, we can only conclude that the reason for the discretionary dismissal decision was illegal, insofar as the dismissal was motivated for complying with what the law and the express judicial mandate ordered both the UOPJ [Judicial Police] and its superiors, not to report the development of the investigations and actions in progress; which, among other things, could have been constitutive of an illicit criminal ".

"The problem", continues the magistrate, "is that, as the action to be punished is not reprehensible because it does not constitute a fault or any infraction, it is camouflaged under the appearance of an alleged loss of confidence to avoid complying with the requirements and guarantees of the sanctioning procedure, but, nevertheless, it is executed with the forcefulness and immediacy of this procedure ".

In his ruling, which Interior has already announced that he will appeal, the magistrate indicates that even the fact of being a "discretionary" position would not have allowed Interior to act as it did.

"It is not controversial that the job in which he was dismissed is a freely appointed position, as it follows from current regulations. A different issue is that the termination of such freely appointed positions may occur, as indicated in the contested resolution, 'freely'; this interpretation [...] violates the applicable legislation and the consolidated jurisprudence that interprets it ".

For the magistrate, legality cannot be cornered by discretion, but, on the contrary, discretionary powers must be exercised within legality.

"Acting discretionary cannot be a means to violate the legality or undermine the legality to which we are all, ultimately, subject. That is why the exercise of discretionary powers is subject to jurisdictional control in the terms set forth", concludes.

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