The secretary of the CGPJ pointed to a possible conflict of interest because Bandrés is the candidate of the progressive members for the TC
The Sixth Section of the Contentious-Administrative Chamber of the Supreme Court (TS) has agreed this Wednesday to keep magistrate José Manuel Bandrés in court that will decide in the next few hours whether to agree to the precautionary suspension of Rafael Mozo as interim president of the General Council of the Judiciary (CGPJ).
As reported by the TS, the Sixth Section has rejected the abstention raised by Bandrés just before entering into the deliberation of the precautionary measure requested by the CGPJ member Wenceslao Olea and the secretary of the Council, José Luis de Benito, in their respects appeals against Mozo's appointment.
Legal sources indicated to Europa Press that Bandrés chose to abstain from this deliberation after the secretary of the CGPJ pointed to a possible conflict of interest since this magistrate is the candidate of the progressive members of the Council for the Constitutional Court (TC).
After resolving this matter, the Sixth Section, made up of Bandrés himself, Eduardo Espín, Celsa Pico, José Antonio Montero and Octavio Juan Herrero, has begun to study the precautionary suspension claimed by Olea and De Benito.
The member and the secretary of the CGPJ challenged the agreement adopted on October 13 by the Plenary of the CGPJ, with which 16 of the 18 members enthroned Mozo as "alternate president" of the Council for being the oldest member.
This decision caused a bicephaly in the Judiciary, since while Mozo acts as interim president of the CGPJ, magistrate Francisco Marín Castán does the same in the TS, two positions that in normal circumstances are exercised by the same person.
The succession conflict broke out on Sunday, October 9, when Carlos Lesmes announced his resignation as president of the CGPJ and the TS due to the lack of tangible progress in the negotiations between PSOE and PP to renew the governing body of judges, as had warned during the opening of the judicial year, on September 7.
Lesmes tried to tie up his succession by entrusting the Technical Cabinet of the Supreme Court with a report advising that Marín Castán would automatically replace him once his resignation was consummated, since he is the one who exercises the Vice Presidency of the TS.
However, the CGPJ chose its own president considering that Marín Castán lacks legitimacy to assume both presidencies because he has held the Vice Presidency of the TS on an interim basis since 2019. For the same reasons, the members conceded that Mozo will not be able to act as the highest authority either. of the ST.
THE AGREEMENT OF THE CHALLENGED CGPJ
Mozo's promotion only had the express rejection of Olea, who issued a particular vote, while the member Mar Cabrejas specifically absented herself from this vote because she did not agree with this substitute presidency.
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. The legal sources consulted by Europa Press indicate that this is one of the factors that is weighing in the negotiations to choose the two magistrates of the Constitutional Court that the CGPJ is responsible for appointing.
WITH THE VIEW ON THE CONSTITUTIONAL
As they have explained, if the Supreme Court chose to provisionally suspend Mozo's interim presidency, it would question the legitimacy of the Plenary session headed by him and, therefore, the very validity of the appointments to the TC.
The progressive and conservative negotiators of the CGPJ postponed until 1:00 p.m. this Wednesday the contacts aimed at appointing the duo for the TC, thus giving the Supreme Court time to resolve the precautionary measures.
Sources from the governing body of the judges rule out in any case that the two names for the guarantee court come out of the meeting on November 23. The matter also appears in the plenary session on Thursday, but the sources see it equally difficult for there to be white smoke. However, they ensure that the expectation is to make these appointments throughout December and, in any case, before Christmas.
Until now, the progressive bloc had launched a first list with nine candidates that it reduced to one: 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 aforementioned sources point 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 TS.