NewsWorldLesmes prepares his departure from the CGPJ: they ask...

Lesmes prepares his departure from the CGPJ: they ask for a technical report that supports his resignation

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According to the statement made public by the institution in the face of the blockade it has suffered for more than 4 years, Lesmes has requested a technical report that clarifies who will have to replace him if he leaves, as he has implied, after the inability of the parties to reach an agreement to urgently renew 2 magistrates of the TC. The Supreme makes it explicit that the Council is in office, which determines that a new president cannot be elected; and that the vice-presidency of the high court is vacant after the dismissal due to retirement in October 2019 of its holder, Ángel Juanes, and that since then the position has been filled temporarily or in office by the oldest president of the Supreme Court Chamber – currently the president of the First Chamber, Francisco Marín Castán-, Lesmes requested the Technical Cabinet of the governing body of the judges to examine the substitution mechanisms in the presidency of the Supreme Court and the CGPJ. The content of this technical report1/ Both the The Constitution and the Organic Law of the Judiciary conceive the presidency of the Supreme Court and the General Council of the Judiciary as a joint and inseparable ownership, which excludes the possibility of articulating different ways of substitution: through the Vice President of the Supreme Court or whoever exercises his functions in the presidency of the Supreme Court and by the oldest member in the presidency of the CGPJ .2/ Excluding the double substitution route, this must be provided as a single channel through the vice-presidency of the Supreme Court, to whose head the Organic Law of the Judiciary (LOPJ) attributes in its articles 590 and 591.1 the function of substituting the president.3/ Any shadow of doubt on this point is cleared up by reading the ruling of the Constitutional Court 191/2016, which examined the constitutionality of the substitution regime provided for in the aforementioned articles of the LOPJ and concluded that “(…) none violation of the Constitution is to appreciate that the legislator has provided that the replacement of the President of the Supreme Court by the Vice President of the same will be, when appropriate, not only for the Supreme Court, but also for the General Council of the Judiciary, maintaining thus -perhaps not the only option, but constitutionally unobjectionable- the conjunction in a single holder, for cases of substitution, of the presidency of one and the other organ no, conjunction that, in general, the Constitution has wanted”.4/ The substitution and interim exercise of the position of vice president by the president of the Chamber of the Supreme Court most senior after the dismissal of Juanes took place ope legis (by virtue of the law) and without the need for any act or agreement in accordance with the rule established in article 208.1 LOPJ . This means that the substitute performs the position in office and, therefore, temporarily performs all the functions of the same, including the function of substitution of the Presidency of the Supreme Court and the General Council of the Judiciary provided for in articles 590 and 591.1 LOPJ. 5/ The substitution of the president of the Supreme Court and of the General Council of the Judiciary by the person who temporarily exercises the functions of vice-president of the Supreme Court takes place, as happens in the latter, ope legis (in this case, by virtue of the provisions of article 590 LOPJ) and automatically, without the need for any act or agreement. Therefore, it is outside the limitation of powers of the Council in functions established by Organic Law 4/2021. The president of the Supreme Court and of the General Council of the Judiciary will report the report to the members of the Governing Chamber of the high court in the session that this body will hold next Monday the 26th and to the members of the CGPJ during the ordinary plenary session set for next Thursday the 29th.

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