On Might 28, 2020 we analyzed on this similar weblog the authorized circumstances of the dismissal of the Colonel Chief of the Madrid-Tres Cantos Command for such an anodyne purpose because the “lack of confidence”. We alluded to the start of political neutrality of public servants and to regulate the discretion of the general public powers, with an compulsory quotation within the latter case of “The battle towards the immunities of energy” by Mr. Eduardo García de Enterría.
On March 31, 2021, the Central Contentious-Administrative Court docket no. Eight of the Nationwide Court docket has issued Judgment 35/2021, by which estimate the useful resource filed by the appellant, annulling and nullifying the dismissal, condemning the Normal State Administration to re-entry of the appellant on the Headquarters of the Civil Guard Command of Madrid (Tres Cantos-Madrid), to the fee of the remuneration variations not obtained, and all this with specific imposition of the prices as much as a most of 1 thousand euros.
Even supposing the Judgment isn’t agency, given its precision and rigor all through 72 pages, along with the authorized establishments that it analyzes (primarily motivation and regulation fraud) and the significance of the matter for the overall curiosity, I permit myself to elaborate a remark to fly pen of its content material.
1.- The Court docket of Instruction no. 51 of Madrid investigated the attainable fee of felony acts of the Authorities Delegate in Madrid and the Director of the Heart for the Coordination of Well being Alerts and Emergencies of the Ministry of Well being, specifically the authorization of the demonstration of March 8, 2020 (the proceedings have been archived on June 12, 2020). The titular Justice of the Peace of the Court docket had reminded the members of the Civil Guard judicial police who have been investigating the case on due stealth to which they’re obliged by their standing as public staff.
2.- As a consequence of the press filtration of this investigation, on Might 22, 2020, the Normal Director of the Civil Guard requested data on the standing of the preliminary investigation course of, informing her that the Chief Colonel had no data in any respect.
3.- The Director Normal proposed to the Secretary of State the removing of the Colonel “for lack of confidence of this Normal Directorate and the Directorate Crew of the Ministry of the Inside, for not reporting on the event of investigations and actions of the Civil Guard within the operational framework and of the Judicial Police for data functions ”.
4.- The Secretary of State for Safety, by decision of Might 24, 2020, ordered the dismissal.
5.- The Hon. Mr. Lieutenant Normal of the Civil Guard, being Deputy Director of Operations, the Colonel participated within the dismissal and resigned from his place.
6.- The Colonel filed an enchantment, which was dismissed by the Minister of the Inside by a decision of July 28, 2020.
The grounds for contesting the declare
The enchantment made by the Colonel requested the precautionary suspension of the contested act, which was dismissed by Order of November 18, 2020.
In essence, the explanation why the appellant thought-about the dismissal invalid have been the next:
1.- Lack of motivation (artwork. 35 LPAC).
2.- Violation of the basic proper to entry public features (artwork. 23.2 EC).
3.- Violation of the basic proper to honor del applicant (artwork. 18 EC).
4.- Violation of the basic proper to legality sanctioning (artwork. 25 CE), alleging that the termination conceals a penalty consequent on the truth that the Colonel didn’t perform “the overtly unlawful act that was anticipated of him.”
5.- Energy deviation (artwork. 48 LPAC).
The opposition of the State Authorized Service
The State Lawyer opposed the declare, requesting its dismissal, alleging that freely appointed positions are freely revocable by the competent authorities for its project and that “the lack of confidence is an evaluation that corresponds to the competent authority, which can’t be topic to judicial overview by the subjective view of a decide” (sic).
In protection of the legality of the dismissal, he argues that senior managers have to know the actions for organizational functions, and that this minimal communication is authorized, important and anticipated from the place held by the appellant.
The basics of regulation
Within the third basis, the Justice of the Peace Decide dismisses the violation of the three alleged basic rights. It considers that the glory of the plaintiff has not been injured by controversial administrative act (fourth basis). It additionally understands that the termination of freely appointed positions don’t represent a disguised sanction, however they reply to an influence aside from disciplinary, which is the facility of group (fifth basis).
The Judgment dedicates the sixth foundation to the allegations of the State Lawyer. On the one hand, it admits – citing enchantment from the Supreme Court docket – that it isn’t for the Court docket to inquire what’s the reason for a termination of free appointment, however “for the Administration to make it express and to take action in phrases prone of management.”
Then again, “regardless of the argumentative efforts made by the Hon. Mr. State Lawyer ”, the Justice of the Peace explains that all through the executive file there may be not the slightest reference to the necessity for human assets applications within the Natural Unit of the Judicial Police of Madrid.
The Sentence dedicates its seventh, eighth and ninth foundations to motivation. You perceive that, in line with the Civil Guard Personnel Regime Regulation, Sure, there may be motivation in termination, and that such motivation is enough. For the Justice of the Peace, the decision of the Secretary of State has a motivation in alliunde, by reference to the proposal of the Director Normal; On this sense, and admitting that there isn’t a principle within the authorized system that imposes a priori a sure extension or a sure approach of reasoning, it’s true that the motivation for the termination exists, is express and has been identified by the celebration to the item to have the ability to submit the executive act to judicial management.
The tenth basis explains the management of discretionary acts of the Administration and its historic evolution from the enchantment for extra of energy and the doctrine of the French Council of State. Essentially the most putting facet of this basis is that the plaintiff Colonel cited García de Enterría in his look and “the siege of judicial immunity from discretion.” The eleventh analyzes within the summary the speculation of the misuse of energy.
The twelfth basis consists of the testimony of H.E. Mr. Lieutenant Normal, who supplies the data that as much as three events the Director Normal had been knowledgeable of the existence of the investigation for data functions: particularly, that the investigating Justice of the Peace had been given the chance to have the The investigation was transferred to the UCO as a result of relevance of the costs underneath investigation, which it didn’t comply with and due to this fact adopted within the case by the judicial police unit of the Madrid Command; or that witnesses have been being summoned by phone to keep away from bodily contact in the course of the pandemic.
The witness additionally factors out that on Might 24 at 9:33 p.m. he obtained a name from the Normal Director of the Civil Guard, who requested him if he was conscious of the supply of investigation proceedings in relation to the demonstrations that passed off in Madrid in March 2020, replying that he was unaware of it and that he would discover out by the chain of command. At 9:53 a.m. the next day, he knowledgeable the Director Normal that the Colonel was not conscious of the proceedings requested by the Justice of the Peace. In a 13-minute dialog, the Director advised him that she was going to dismiss the Colonel.
These information permit the Justice of the Peace to achieve the conclusion that the rationale for the discretionary dismissal choice was unlawful, “insofar because the dismissal was motivated by complying with what the regulation and the specific judicial order ordered. (…) That’s, not reporting on the event of the investigations and actions in progress; which, amongst different issues, might have constituted a felony offense ”.
The Judgment is conclusive when stating that “we face a clear deviant train of discretionary energy”, Consisting of not reporting the event of investigations and actions of the Civil Guard which, by the relevant laws and by the specific orders issued by the Justice of the Peace of the 51st Court docket of Madrid, have been topic to the responsibility of reserve. For that reason, the choice of the cessation is against the law, as a result of “legality can’t be cornered by discretion”.
I end as I began. The Judgment isn’t remaining and an enchantment has already been introduced by the State Authorized Service; For my part, it’s a very well-argued Judgment, not exempt from a rigorous evaluation of the authorized figures that it analyzes, primarily the discretion, the motivation and the misuse of energy.
In any case, it has a notable curiosity for the functioning of the establishments: the relations between the Authorities and the Judicial Energy, and between the political institution and the Civil Guard, two points that have an effect on the waterline of the rule of regulation. I notably have my opinion of what occurred, which exceeds a authorized examine like the current one. I restrict myself to saying that compliance with the regulation can by no means give rise to an unfavorable act or encumbrance for many who respect the authorized system. And I am unable to cease remembering the instance of the Hon. Mr. Lieutenant Normal to submit your resignation having to speak the termination to the Colonel, an finish that recollects an identical occasion of the Duke of Ahumada and that undoubtedly confirms that the honor it continues to be the principle forex of the Civil Guard.
Picture supply: RTVE