An internal report handled by the General Council of the Judiciary warns of the “imminent blockade” of the Government Chamber of the Central Military Court (TMC) due to the next transfer to the reserve of its president and the inability to fill their vacancy and that of other robed members Due to the reform promoted by the Government, which prohibits the CGPJ from making discretionary appointments due to being in an extension of mandate.
The impact of this reform in the military jurisdiction is expected much more intense than in the ordinary jurisdiction, where most judicial appointments are regulated and there are effective replacement mechanisms for discretionary positions.
The Government Chamber of the Central Military Court is in charge of exercising the military judicial disciplinary power and inspecting the military jurisdictional bodies. When its operation is paralyzed no disciplinary responsibility could be demanded to the vocals and robed judges.
It also corresponds to appoint the vocals and robed judges who provisionally, as substitutes, have to take over the work of the incumbents in cases of licenses, withdrawals or vacancies. As the Government Chamber cannot function, substitutions cannot be agreed either, with the consequent repercussions on the functioning of the military judicial bodies, starting with the Central Military Court (TMC) itself.
The military jurisdiction knows of the crimes included in the Military Penal Code. The Central Military Court (there is only one) judges the military with employment superior to commander or lieutenant commander. Those with less employment than these are judged by the Territorial Military Courts (TMT), of which there are five in different demarcations.
The Central Court Courts instruct the procedures before the TMC. There are two, both based in Madrid. The 18 Territorial Robed Courts that are distributed throughout Spain instruct the processes before the TMT.
In 2016, the Organic Law on Competition and Organization of the Military Jurisdiction was amended to attribute to the General Council of the Judiciary the competence to make the discretionary appointments of military courts and tribunals. It was one more step in the integration of this jurisdiction into the Judiciary.
The CGPJ currently has three vacancies for robed members in the TMC and TMT and two for robed judges. They will be joined by the next October 26 the vacancy of the current president of the Central Military Court, General Councilor Carlos Melón.
None of these positions can be covered because the reform of the Organic Law of the Judicial Power promoted by PSOE and United We Can, in force since last March, prevents him from making discretionary appointments.
For any appointment, in addition, the Government Chamber of the TMC must be heard, which from October will be inoperative. The Government Chamber is made up of the president of the TMC and the members in active service, but currently there is only one, the general auditor Pascual Sarría.
The law that regulates the military jurisdiction has another peculiarity consisting in that “There is no substitution” for the robed members of the Government Chamber of the Central Military Court.
The governing body of the military justice will thus be inoperative from the transfer to the reserve of Carlos Melón, since it cannot function with a single active robed member and there is no legal possibility of appointing substitutes in the vacant positions.
According to the informant sources, the opinion of the CGPJ affirms without palliative that this situation poses “a serious short-term problem“.
The functioning of the TMC Courtroom may also be compromised. At present, it is chaired by Melón and is made up of the only existing active robed member (who could replace the president when he goes to reserve in four weeks) and by two robed members in reserve status. But these will go into retirement during the next year.
CGPJ sources indicate that the report that analyzes the effect of the March reform on the military jurisdiction advises against attending the appeal as substitutes for robed members of the territorial military courts to integrate them into the TMC Chamber of Justice and thus be able to form the Government Chamber with them. It considers that this mechanism would conflict with the prohibition of substitution of robed members of the governing body established by the current Organic Law on Competition and Organization of the Military Jurisdiction in its article 42.
It does suggest, instead, the possibility for the CGPJ to assume the functions of the Government Chamber of the TMC due to its hierarchical position and while the current exceptional situation lasts.
It also refers to the convenience that the current Government Chamber of the Central Military Court anticipate as far as possible the adoption of the necessary agreements to guarantee the functioning of the military judicial bodies.
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