The Plenary of the General Council of the Judiciary has elected this Monday for vast majority Fernando Marín and Ricardo Cuesta as magistrates of the Military Chamber of the Supreme Court. The election takes place a month and a half after the entry into force of the reform – appealed to the Constitutional Court – that prevents the CGPJ from making appointments to high judicial positions due to being in an extension of mandate.
The CGPJ has made these appointments “in compulsory compliance” – sources from the Council said – of the sentences handed down by the Contentious-Administrative Chamber of the Supreme Court on April 8, when it annulled the appointment of Marín y Cuesta made in November 2019.
The Supreme Court found infractions “with invalidating effects of the entire subsequent process” consisting of the fact that the CGPJ omitted a procedure foreseen as mandatory in the bases of the contest: the request for reports on the candidates to the Government Chamber of the Central Military Court, to the president of the Fifth Chamber of the Supreme Court and to the Ministry of Defense, since the two positions belong to the quota reserved for military jurists .
The high court ordered the selective process to be rolled back to the time when the expected reports had to be requested. Once this requirement is fulfilled, the governing body of the judges has reappointed the same candidates this Thursday.
The robed general councilor Fernando Marín Castán has obtained 18 of the 21 votes of the members of the CGPJ. The members Roser Bach, Concepción Sáez and Enrique Lucas have voted blank.
The robed general councilor Ricardo Cuesta del Castillo has obtained 15 votes and the same members have voted blank. Carlos Melón, the candidate who appealed the appointments made initially in 2019, has had three votes.
Prior to the legal change
Despite the reform promoted by PSOE and Podemos that has altered the powers of the governing body of judges when it is in an extension of mandate (eliminating that of making appointments), the Supreme Court ordered the CGPJ to resolve the contest called to fill those two positions in the Military Chamber since it was long before the legal change carried out last March.
At the time that the high court ordered to roll back the selective process, convened in October 2019, the modification of the Organic Law of the Judiciary was not in force.
“The nullity [de los nombramientos de Marín y Cuesta] does not bring cause of any circumstance that concerns the applicants who were proposed by the Permanent Commission “but it is” the exclusive responsibility of the decision-making body “so that” it should not be detrimental to the legitimate interests of the applicants to be promoted to the vacancies in the Fifth Chamber of the Supreme Court so that their request is processed and resolved in accordance with the Law, “he argued.
In a later order in which it responded to a request for clarification made by the appellant, Carlos Melón, the Chamber once again affirmed the irrelevance of the legislative reform for this contentious and he reiterated that the sentences had to be executed on their own terms and within a fixed period of one month.
During the meeting of the Plenary of the CGPJ, Concepción Sáez has maintained that the appointments should not be carried out, despite what was ordered by the Supreme Court. The other members have not doubted that the constitutional obligation to comply with final judicial decisions concerns all its addressees and, in particular, the governing body of the Judiciary itself.