The new alternative chief justice violates the law by not resigning from his special positions

legality of appointment Attorney and professor of civil law Vicente Gilarte As alternate President of the General Council of the Judiciary (CGPJ), he is being questioned by the Progressive Sector of the Administrative Body of Judges, since he has not handed over any document proving that he has resigned his private functions to take over, as he himself promised, the system of incompatibilities inherent in said office. Since there is no formal resignation from the private activities that Gilarty Performing her duties as a lawyer and a professor, the group asked yesterday not to hold the scheduled meeting of the Standing Committee of the Council, on the grounds that a person who does not properly assume the presidency cannot hold it, because they have not yet fulfilled the requirement to give up special positions that are not compatible with the exercise of office.

in parallel, Gilarty He has submitted a report prepared by Enrique Lucas, who is also a member of the council, in order to submit it for consideration during the plenary session, which meets on Tuesday. A debate that has reopened in the judiciary is whether a substitute president can carry out the functions of the office while maintaining all or part of his private activities as attorney and teacher. Guilarte took over due to age After retiring on the 19th of his predecessor, Rafael Mozo, Who also acted as a replacement for the outgoing former President of the Council and Supreme Court, Carlos Lesmes, who resigned on October 9 due to the failure to renew the Board of Judges, in his positions since 2018.

The resignation of Gilarte from his private activities is expressly assumed by this lawyer among the general agreements held on the 19th. EL PAÍS I repeatedly tried yesterday to contact the Alternate President of the Council to ask him about this circumstance. Via a letter, Gilarte called it “ridiculous” that he refused to give up these activities and added: “Tomorrow (for today) we will decide once and for all.”

Enrique Lucas’ report is dated last Saturday, July 22, one day before the election. Previously, in the last plenary session chaired by Rafael Mozzo, an item was included on the agenda consisting of Gilarte indicating whether he had accepted the position with the assumption of the obligation to comply with his noncompliance regime. In fact, there was no discussion because the new alternate president stated his assumption of the aforementioned legal text. But yesterday morning, the discussion was reconsidered because there was no documented evidence of this resignation. Executed as Professor of Constitutional Law and State Civil Administrator, Enrique Lucas reports that it is possible to estimate the existence of two phases in the exercise of the presidency by replacing Guilarte, being the oldest of the members.

The report confirms that “there is no legal impediment for the substitute member” to exercise “the powers of the head of the General Council of the Judiciary even if he does not have exclusive dedication,” under certain circumstances. and such circumstance is that it records that he “acts in this capacity as a substitute under the invitation he has received from a rule, or by decision of the hierarchical superior, or, as in this case, by general agreement,” that is, the plenary session of the judiciary.

However, the report finds that the replacement envisaged by Vicente Gilarte as the oldest member of the council “will be in one or two stages”. The first – and he adds – “began on July 20, after the retirement of the previous substitute member, and the second, will begin on the date fixed by the plenary session for his acquisition of the status of a permanent committee member.” The distinction is important because, according to this thesis, “the system of rewards and incompatibilities during the first stage (phase) is and will be (Gilarte’s) since he joined the Board of Directors as an attached member of the Disciplinary Committee.” Therefore, it will be “as of the date of its effective incorporation into the Standing Committee” when it “is on record in the payroll and will have the rights and obligations deriving from that position, including the incompatibilities applicable to it.”

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But it does add a new consideration that the progressive section of the Council flatly rejects. It is about emphasizing that during the first phase, “aside from the fact that the second phase is bearing fruit, the fact that member Vicente Gillarte is not a member of the Standing Committee is not an obstacle for him to preside over its sessions.” In furtherance of this criterion, Enrique Lucas points out that the President of the Council, who was replaced first by Mozzo and then by Gilarte, was not a member, but was directly elected to the presidency and, without holding any office, presided over a permanent position.

In view of the contradictions about the legal status of the rotating presidency, its derivatives regarding rewards and cases of incompatibility, the plenary session that the Council will hold today, Tuesday, seems controversial. In the judiciary, it is estimated that the different opinions about the reorganization of the presidency have a lot to do with the outcome of last Sunday’s elections. According to these sources, the conservative sector encouraged the idea that a stage has begun now, after the People’s Party has won the possibility of ruling, that the council will regain its functions and can begin to make appointments to key positions in the judicial organizational structure.

However, the 23-J finding makes it difficult to predict whether the case of the administrative body’s obstruction of judges will last longer or less. The conservative group would like Gilarte to continue in the presidency, but the party interested in his role has doubts about the conditions under which he can practice it, especially if it continues and forces him to spend a long period without devoting himself to his work as a lawyer and his teaching mission. And the progressive bloc, in turn, does not want the continuation of the new replacement president without fully accepting the inconsistency in the position. This group has the suspicion that at this point the Standing Committee – which exercises the essential functions of the Council – is to be renewed and a Guilarte-related nucleus is formed without the rotating chair taking over these discrepancies in turn.