It will be pronounced one day before the Council meets to address the appointments to the Constitutional
MADRID, 20 Nov. (EUROPA PRESS) -
The Supreme Court will decide this Wednesday whether to suspend Rafael Mozo as interim president of the General Council of the Judiciary (CGPJ), as requested in a precautionary manner by the only member who voted against his appointment, Wenceslao Olea, and the secretary of the Council , Jose Luis de Benito.
It is expected that the magistrates of the Contentious-Administrative Chamber rule on the precautionary measure -and not yet on the merits of the matter- after last October they rejected the very precautionary measure requested by Olea and De Benito in their appeals .
Specifically, the member and the secretary of the CGPJ challenged the agreement reached by the plenary session of the governing body of judges to designate Mozo --the oldest member-- their "alternate president", which meant dividing the leadership of the Judiciary, since magistrate Francisco Marín Castán has been acting as the Presidency of the Supreme Court (TS) since the resignation of Carlos Lesmes from both positions took effect.
The succession conflict broke out on Sunday, October 9, when Lesmes announced his resignation as president of the CGPJ and the TS -positions held by the same person- due to the lack of tangible progress in the negotiations between PSOE and PP to renew the body of government of the judges, as he had warned during the opening of the judicial year, on September 7.
Lesmes tried to tie up his succession by commissioning a report from the Technical Cabinet of the Supreme Court advising that Marín Castán would automatically replace him once his resignation was consummated, since he was the one who held the Vice Presidency of the TS.
The CGPJ, however, appointed its own president considering that Marín Castán lacked legitimacy to assume both presidencies because he has held the Vice-Presidency of the Supreme Court on an interim basis since 2019. For the same reasons, the members conceded that Mozo will not be able to act as maximum Supreme Court authority.
The plenary agreement that has been challenged before the Supreme Court went ahead with 16 of the 18 votes at stake. He only had the express rejection of Olea, who issued a particular vote, while the vocal Mar Cabrejas specifically absented himself from this vote because he did not agree with the enthronement of Mozo.
In his dissenting vote, Olea already explained that, in his opinion, splitting the presidencies of the CGPJ and the TS was illegal because the Constitution and the Organic Law of the Judiciary (LOPJ) impose that whoever exercises that of the Supreme Court must also perform that of the Council .
"Nothing more and nothing less than the Constitution is being violated," warned Olea, who in addition to being a member of the current CGPJ is a magistrate of the Contentious-Administrative Chamber.
Likewise, it revealed that Mozo "does not meet any" of the legal conditions to establish himself as president, that is, to be a member of the judicial career with the category of TS magistrate and meet the requirements to be president of the Chamber of the same, or be a lawyer of recognized competence with more than 25 years of seniority in the exercise of their profession.
In addition, Olea warned that with the appointment of Mozo the "legality" of the agreements adopted by the Council with this presidency was put at stake. Legal sources consulted by Europa Press have assured that this is one of the factors that is weighing in the negotiations to choose the two magistrates of the Constitutional Court that corresponds to designate the governing body of judges.
As they have explained, if the Supreme Court chose to provisionally suspend the enthronement of Mozo, it would question the legitimacy of the Plenary session headed by him and, therefore, the validity of the appointments to the Constitutional Court.
The progressive and conservative spokesmen of the CGPJ postponed their meeting until the same Wednesday in which the Supreme Court pronounces to continue the negotiations regarding the two magistrates of the Constitutional Court that the Council is responsible for appointing, although the sources consulted rule out that there is an agreement.
Just one day later, on Thursday, the CGPJ plans to hold its ordinary plenary session in November. Legal sources have advanced that it is possible that the matter of appointments will be on their agenda, but they have assured that it is "difficult" for an agreement to be reached that day because the conservatives have put on the table the need to change the method negotiation to avoid what they perceive as a "deal of trading cards".
The same sources have indicated that the expectation is that the CGPJ can name its candidates for the Constitutional Court throughout December and, in any case, before Christmas.
Until now, the progressive block had launched a first list with nine candidates that it reduced to one: José Manuel Bandrés. The conservative members handle another six names: Pablo Llarena, Julián Sánchez Melgar and Vicente Magro, from the Criminal Chamber of the TS; and César Tolosa, Inés Huerta and Diego Córdoba, of Administrative Litigation.
The sources consulted have pointed out that the best positioned so far are Pablo Lucas, the judge in charge of controlling the CNI, and Tolosa, the president of the Administrative Litigation Chamber of the Supreme Court.