The Supreme Court has notified this Thursday the sentence where it annuls the controversial dismissal of Colonel Diego Pérez de los Cobos for being illegal. The Chamber, unanimously, considers that the reason given by the Ministry of the Interior led by Fernando Grande-Marlaska to suddenly dismiss the high command of the Civil Guard for loss of confidence "is confusing" and "contrary to the function of the Judicial Police", which could not inform the Government of the cause of 8-M because the judge investigating the case had expressly ordered the agents to maintain reservations.
The judges recall that "the Judicial Police is included in the Administration in article 126 of the Constitution, which places it under the jurisdiction of the judges and courts and the Public Prosecutor's Office in the functions of investigating crimes as a guarantee of the independence and effectiveness of Justice".
The events date back to the spring of 2020, when the Executive was concerned about the investigation opened by the head of the Investigating Court Number 51 of Madrid, Judge Carmen Rodríguez-Medel, who had decided to investigate the responsibility of the central government in the celebration of the 8-M feminist march in the midst of the explosion of the coronavirus.
The former government delegate in Madrid, José Manuel Francos, was accused and the nerves in the Executive were in crescendo. In this context, the Ministry of Marlaska requests information on the judicial proceedings. The judge had ordered the head of the Madrid Command, Pérez de los Cobos, an absolute reserve about the investigations. After the high command complied with the order given by the instructor, the Interior dismissed him in a sudden manner, alleging loss of confidence.
In its sentence, the Supreme Court emphasizes that the colonel "was under the orders of the magistrate who directed the investigation without government interference being admissible, and even less if the magistrate had ordered absolute confidentiality and that only she was informed."
In addition, the magistrates of the Contentious-Administrative Chamber reiterate that the jurisprudence of the High Court "requires not only the formal motivation for the cessation of the post or destination of free appointment for reasons of professional suitability but also the requirement that such Motivation is not vague, imprecise or ritualistic, based on opaque, standardized expressions, but rather gives a reason why the professional confidence that motivated the appointment has declined and why the conditions are no longer met to carry out a post meeting their requirements ". Likewise, the court - made up of a majority of magistrates with a progressive sensibility - makes clear the applicability of the aforementioned jurisprudence to members of the Civil Guard regarding the dismissal in freely designated destinations.
On the other hand, the High Court -in a ruling presented by magistrate José Luis Requero- recalls that in this case "the initiative for dismissal did not come from the commanders and did not respond to a negative assessment of the appellant's professionalism and suitability".
Consequently, the Third Chamber of the Supreme Court upholds the appeal against the judgment of the National Court of September 15, 2021 that had confirmed the dismissal of Pérez de los Cobos as head of the Madrid Command and cancels it.
In contrast, the magistrates confirm the first sentence of the Central Court for Administrative Litigation of the National Court, which affirmed that the dismissal was a reprisal for the decision of Pérez de la Cobos to comply with the order of the judge who was investigating the case of 8 -M. Interior is now obliged to comply with this last sentence that will be executed in the next few days when it is final. Marlaska has to reinstate the colonel in office and pay him the salaries not received during this time.
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