The National Court supports Marlaska's decision to dismiss Colonel Pérez de los Cobos

The Contentious Chamber of the National Court has overturned this Tuesday the ruling that, on March 31, concluded that the dismissal, on May 24, 2020, of Colonel Diego Pérez de los Cobos as the highest head of the Civil Guard in Madrid was “illegal” and ordered the Ministry of the Interior to reinstate him in his post, as the judicial body has advanced through a note. The decision, which can still be appealed before the Supreme Court, is an oxygen balloon for Minister Fernando Grande-Marlaska, who was asked by the opposition to resign en bloc when the first judicial ruling was known. Interior dismissed the colonel for “loss of confidence” after leaking to the press details of an investigation by the Civil Guard on the celebration of the Women’s Day demonstration in Madrid on March 8 of last year and its alleged relationship with the spread of the covid-19.

The Fifth Section of the Contentious-Administrative Chamber has declared this Wednesday “the conformity to law” of the dismissal of Pérez de los Cobos. The judgment, for which Judge Jesús Nicolás García Paredes has been the rapporteur and unanimously signed by all the magistrates, upholds the appeal made by the State Attorney, on behalf of the Ministry of the Interior, and revokes the judgment of March 31 of 2021.

This new judgment invokes previous resolutions to indicate the applicable norms and the criteria that have been followed when resolving the challenges to dismissals – and appointments – in freely appointed posts in the Civil Guard, distinguishing between the suitability to occupy the position, which in The case is not discussed, and the trust placed by the authority that made the appointment at the time and that, in the event of loss of said trust, orders the dismissal, and in the latter case the reasons for the loss of trust must be stated, but existing limits to judicial review.

Therefore, the court rules out the existence of misuse of power and finds that the termination decision has sufficient grounds: “Given that the loss of confidence is due to the ‘non-information’ of the ‘development’, not of the content of ‘investigations and actions’ carried out by the Civil Guard; all this, in the broad and, at times, confusing operational and judicial police framework ”. The court concludes that Pérez de los Cobos, “having broken trust, the declaration of reincorporation to the destination makes no sense.”

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Grande-Marlaska at first attributed the removal of Pérez de los Cobos to a simple “change of equipment”, but in subsequent public appearances he linked the dismissal to a “loss of confidence” due to the leakage of data contained in a police document of the case 8-M. In fact, in the letter with which his dismissal was communicated, it was detailed that it had been taken for “not reporting the development of investigations and actions of the Civil Guard, in the operational framework and of the Judicial Police, for the purpose of knowledge”, in reference to those inquiries. The agents who carried out that investigation, belonging to the Madrid Command, acted under the direction of the head of the Court of Instruction number 51 of Madrid, Carmen Rodríguez-Medel, who was investigating the then delegate of the Government in Madrid, José Manuel Franco for prevarication , for authorizing the holding of mass events on the dates prior to the declaration of the state of alarm. The judge finally closed the case.

In its appeal, the Interior used five reasons to challenge the March 31 ruling, considering that the dismissal of the high command was in accordance with the law and the “misuse of power” that the magistrate pointed out in his decision did not occur. The first was that, contrary to what the judge maintains in his ruling, the cessation of a Civil Guard command when he occupies a position of free designation, such as that of head of the armed institute in Madrid, is not governed by the general regulations applicable to public employees, but by “a special regime” that is justified “in the principles of discipline or objectivity that characterize the armed Institute”. In this sense, the State Bar emphasized that the removal of Pérez de los Cobos was “due to loss of confidence” and, therefore, fully adjusted to the special legal regime applicable to the Civil Guards.

The Interior also alleged that current legislation “does not prevent” a Civil Guard command from receiving information from his subordinates on “incidents” of an investigation and that, in turn, this “communicates it to the chain of command of the Ministry of the Interior ”Especially in cases with media significance and involving people of public importance, as was this case. The letter emphasized that the Interior never asked the colonel for information on the content of the reports, but only that he be notified when documents were delivered, something that, the appeal insisted, is “perfectly compatible with the communication of incidents.” And he highlights that when he was asked for information, it was after the leak to the press of the existence of the report in which Fernando Simón, director of the Center for the Coordination of Health Alerts and Emergencies of the Ministry of Health, was implicated and then a visible face of the measures of the government against the pandemic. “The Ministry of the Interior had to learn from the press of a circumstance (the delivery of the proceedings) that it hoped to have learned through the chain of command,” the appeal states.

Pérez de los Cobos requested his re-entry as head of the Civil Guard in Madrid, but the Interior rejected it pending the decision to be final, so the high command went to the National Court. “The colonel has been suffering irreversible damage that cannot be repaired for almost a year,” argued the defense of Pérez de los Cobos. However, the judge rejected his request last May, considering that, if the Government’s appeal were finally successful, the re-entry of the high command would “cause damage” to the people who make up the chain of command of the Civil Guard both in the Command of the Civil Guard. Madrid and in the Intervention of Weapons and Explosives, where Pérez de los Cobos is currently stationed.

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