The Central Contentious-Administrative Court number 8 of the National High Court has agreed with Colonel of the Civil Guard Diego Pérez de los Cobos and has ordered the Ministry of the Interior led by Fernando Grande-Marlaska to readmit him in the position from which he was dismissed last May at the head of the Madrid Commandery: he considers that the dismissal was due to not reporting an ongoing investigation, that is, an “illegal motivation”.
In a sentence notified this Wednesday, Magistrate Celestino Salgado annuls the resolution of the Secretary of State for Security on May 24 that led to the dismissal of Pérez de los Cobos due to loss of confidence considering that “it is not in accordance with the law” and condemns the Administration to reinstate him and furthermore, pay you the salary amounts that you have stopped receiving since then and assume the costs of the procedure.
The claim, once the path was exhausted in the Ministry of the Interior, ended up in the National Court, which now agrees with him in every way: the dismissal was, according to the judge, for not informing the Interior of the Civil Guard investigations in the open judicial case on the feminist demonstrations of March 8 and in which she had a duty of reserve reinforced by an express order from the judge, Carmen Rodríguez Medel.
«What is indisputable is that despite the legal duty of reserve and the express order of the Magistrate to the Judicial Police Unit (UOPJ), the appellant was dismissed for not reporting the development of investigations and actions of the Civil Guard ”, indicates the magistrate.
As he explains, “not including what information it was considered that the appellant should have communicated in his capacity as Head of the Madrid Command,” the conclusion must be that “The reason for the discretionary dismissal decision was illegal.”
“The dismissal was motivated by complying with what the law and the express judicial mandate ordered both the UOPJ and its superiors, not to report on the development of the investigations and actions in progress.” This, he adds, “It could have been constitutive of a criminal offense.”
Diversion of discretionary power
In his sentence, he points out that this is «A clear deviant exercise of discretionary power which appears expressly included in the administrative file itself – a proposal for termination and resolution of the appeal – contrary to what is customary and which has led to the fact that the misuse of power is hardly appreciated by the courts ”.
«It is true that the decision to dismiss Colonel Pérez de los Cobos is revealed in the proposal of the General Director of the Corps, addressed to the Secretary of State for Security, for not reporting on the development of investigations and actions of the Civil Guard, in the operational framework and Judicial Police, for knowledge purposes; investigations that by the applicable legislation and by the express orders issued by the Magistrate of Instruction Court No. 51 of Madrid, were subject to the duty of reserve (…) HWe have concluded that this motivation is illegal », stresses.
For the magistrate, legality cannot be cornered by the discretion available in this case to the Ministry of the Interior to agree to dismissals and appointments, but, on the contrary, discretionary powers must be exercised within the law.
“The Acting discretionary cannot be a means to violate legality or undermine legality to which we are all, ultimately, subject. That is why the exercise of discretionary powers is subject to jurisdictional control in the terms set forth, “he concludes.
George is Digismak’s reported cum editor with 13 years of experience in Journalism