The member who challenged the appointment of Mozo as interim president of the CGPJ withdraws his appeal in the TS

Resignation to fight bicephaly in the Judiciary after the decision of the TS to keep Mozo in his position

The member of the General Council of the Judiciary (CGPJ) Wenceslao Olea has communicated this Wednesday to the Supreme Court (TS) that he is withdrawing the appeal he filed against the appointment of his colleague Rafael Mozo as interim president of the CGPJ, after the TS has rejected hours before provisionally suspend said appointment.

As reported by the high court, once he learned of the decision of the Contentious-Administrative Chamber of the Supreme Court to keep Mozo as interim president, Olea sent a letter to the same Chamber announcing that he was renouncing the challenge.

However, it should be remembered that the Third Chamber still has in its hands the appeal filed against the promotion of Mozo by the general secretary of the CGPJ, José Luis de Benito.

The Sixth Section of the Third Chamber has rejected this morning the precautionary measures raised by Olea and De Benito in their respective appeals, the same decision that it already adopted on October 18, when it studied the very precautionary measures, considering that there was no urgency in deciding on the eventual provisional suspension of Mozo because he was not causing "irreparable damage" to either of the two appellants.

Shortly before, early this Wednesday, the Sixth Section also rejected the abstention raised by José Manuel Bandrés after the secretary of the CGPJ pointed to a possible conflict of interest of this TS magistrate for being the candidate of the members progressives to the TC, with which it has participated in the second deliberation on precautionary measures.

A magistrate of said Section, Celsa Pico, has issued a dissenting vote, estimating that Bandrés's initiative to depart from the decisions regarding the appeals against Mozo should have been accepted, according to legal sources consulted by Europa Press.

In any case, the Supreme Court still has to rule on the merits of the appeal filed by De Benito against the agreement adopted on October 13 by the Plenary of the CGPJ, with which 16 of the 18 members promoted 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 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 been 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 (TC) that the CGPJ is responsible for appointing.