On Could 28, 2020 we analyzed on this identical weblog the authorized circumstances of the dismissal of the Colonel Chief of the Madrid-Tres Cantos Command for such an anodyne cause because the “lack of confidence”. We alluded to the start of political neutrality of public servants and to manage the discretion of the general public powers, with an compulsory quotation within the latter case of “The struggle 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 Basic State Administration to re-entry of the appellant on the Headquarters of the Civil Guard Command of Madrid (Tres Cantos-Madrid), to the cost of the remuneration variations not acquired, and all this with specific imposition of the prices as much as a most of 1 thousand euros.
Even supposing the Judgment is just not 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 enable myself to elaborate a remark to fly pen of its content material.
1.- The Court docket of Instruction no. 51 of Madrid investigated the doable fee of prison acts of the Authorities Delegate in Madrid and the Director of the Middle 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the Ministry of Well being, specifically the authorization of the demonstration of March 8, 2020 (the proceedings have been archived on June 12, 2020).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 their situation as public staff obliges them.
2.- As a consequence of the press filtration of this investigation, on Could 22, 2020, the Basic Director of the Civil Guard requested info on the standing of the preliminary investigation course of, informing her that the Chief Colonel had no information in any way.
3.- The Director Basic proposed to the Secretary of State the removing of the Colonel “for lack of confidence of this Basic Directorate and the Directorate Group 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 information functions ”.
4.- The Secretary of State for Safety, by decision of Could 24, 2020, ordered the dismissal.
5.- The Hon. Mr. Lieutenant Basic 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 of the dismissal invalid have been the next:
1.- Lack of motivation (artwork. 35 LPAC).
2.- Violation of the elementary proper to entry public capabilities (artwork. 23.2 EC).
3.- Violation of the elemental proper to honor del applicant (artwork. 18 EC).
4.- Violation of the elemental proper to legality sanctioning (Artwork. 25 CE), alleging that the termination conceals a penalty that’s consequent on the truth that the Colonel didn’t perform “the brazenly 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 his or her task 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 must know the actions for organizational functions, and that this minimal communication is authorized, important and anticipated from the place held by the appellant.
The Fundamentals of Legislation
Within the third basis, the Justice of the Peace Decide dismisses the violation of the three alleged elementary rights. It considers that the honour 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 apart from disciplinary, which is the ability 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’s not for the Court docket to inquire what’s the explanation for a termination of free appointment, however “for the Administration to make it express and to take action in phrases prone of management.”
Alternatively, “regardless of the argumentative efforts deployed 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 sources 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 accordance with the Civil Guard Personnel Regime Legislation, Sure, there may be motivation in termination, and that such motivation is adequate. 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 Basic; On this sense, and admitting that there isn’t any 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 get together 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. Probably the most hanging 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 contains the testimony of H.E. Mr. Lieutenant Basic, who gives the knowledge that the Director Basic had been knowledgeable on three events of the existence of the investigation for info functions: particularly, that the investigating Justice of the Peace had been requested the chance for the The investigation was transferred to the UCO because of the relevance of the fees beneath investigation, which it didn’t conform to and subsequently 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 Could 24 at 9:33 p.m. he acquired a name from the Director Basic 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 reported to the Director Basic that the Colonel was not conscious of mentioned 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 info enable the Justice of the Peace to succeed in the conclusion that the explanation for the discretionary dismissal resolution 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 prison 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 obligation of reserve. Because of this, the choice of the cessation is unlawful, as a result of “legality can’t be cornered by discretion”.
I end as I began. The Judgment is just not 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 individuals who respect the authorized system. And I am unable to cease remembering the instance of the Hon. Mr. Lieutenant Basic to submit your resignation having to speak the termination to the Colonel, an finish that remembers the same occasion of the Duke of Ahumada and that undoubtedly confirms that honor it continues to be the primary foreign money of the Civil Guard.
Picture supply: RTVE