The Supreme Court urges the Government to “dispel any hint of arbitrariness” in its decision not to promote Pérez de los Cobos

Colonel Diego Pérez de los Cobos upon his arrival at the National Court to testify in the trial against the leadership of the Mossos for 1-O, in 2020.KIKE PARA

Last week, the Supreme Court ruled in favor of Colonel Diego Pérez de los Cobos because the Executive did not sufficiently motivate its decision to elect three other candidates for generals of the Civil Guard and not promote him. To reach this conclusion, the Contentious-Administrative Chamber not only took into account that the reports from the director of the Civil Guard and the Minister of Defense did not justify why Pérez de los Cobos was not promoted even though he had been number one in the prior evaluation procedure, but the court does not rule out that the Government’s decision is linked to the dismissal of the colonel as head of the Madrid Command, which occurred in May 2020 and was subsequently annulled by the Supreme Court. The Litigation Chamber does not clearly say that the dismissal influenced the decision not to promote the colonel, but it does say that there is “a hint of arbitrariness” that must be “dispelled.”

The Supreme Court reported on September 19 of its decision to annul the royal decrees appointing three generals of this body, from October 2021, which had been challenged by Pérez de los Cobos as he considered himself relegated in promotions to which he claimed to be entitled. . But the court had not yet notified the sentences with the arguments that led to that conclusion. In the first of these sentences, released this Tuesday, the court recalls that Pérez de los Cobos was dismissed as head of the Civil Guard in Madrid and maintains that this fact “also has an obvious relevance that singles him out and qualifies him.” “This fact affects the lawsuit in such a way that the irregularities noted are more than mere formal or procedural infractions, especially after this Chamber has firmly annulled that dismissal in which a serious illegality was committed regarding facts that are not the case. remember,” the court warns.

Throughout the sentence, the magistrates point out that Pérez de los Cobos was number one in the classification, a conclusion reached after a complex and rigorous process. “Such classification is not decisive in the promotion decision, it does not cancel or, at least, predetermine the power of proposal of the Director General of the Civil Guard and the Ministry of Defense, nor the decision-making power of the Council of Ministers, but its value It is obvious and requires consideration,” emphasizes the court, which considers that the fact that the selection of the promoted does not coincide with the result of the prior evaluation requires greater justification. “If a suitability other than that established in the evaluation process is assessed, it will be necessary for there to be some data or element that allows it to be identified and justified. And, if this different suitability resulted directly from the specific position to which the promoted parties were going to access and perform, some element of assessment should exist in the administrative file,” the court states.

The Supreme Court reproaches the Directorate of the Civil Guard that its report, required by law, was limited to submitting to the Ministry of Defense the result of the selection process. “You must make your own assessment of both the results of the evaluations and the elements that are considered necessary for the Council of Ministers to decide and assess the suitability of the promoted person based, not on their free decision, but, as provided in article 73.1, of the results of the evaluations for promotion and the suitability to occupy the positions or vacant positions in which the promotion materializes.” Furthermore, the court adds, after the intervention of the General Director of the Civil Guard “the reasons for the proposal of the Minister of Defense regarding the suitability of the promoted colonel for the specific vacancy that determines the promotion are not recorded.”

The Supreme Court, by annulling the promotions, does not force the procedure to start from scratch, but it does take it back to the moment prior to the report from the Directorate of the Civil Guard, which it urges to write an opinion in which it assesses the previous evaluation carried out. by the Superior Council of the Civil Guard on the suitability of those who are going to be promoted, the order of priority and the procedure followed. And, in turn, so that the Ministry of Defense, after hearing the Ministry of the Interior, is the one who makes a promotion proposal to the Council of Ministers in which it assesses “the priority and suitability for the performance of the vacant post of Brigadier General in those in which the contested promotion was finalized with respect to those evaluated and, especially, with respect to the plaintiff,” in reference to Pérez de los Cobos.

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