A Central Contentious-Administrative Court of Madrid believes that the dismissal of Colonel Tienda was not sufficiently motivated by the Interior
He Colonel José María Tienda Serrano will have to be restored as head of the Provincial Command of the Civil Guard in Santa Cruz de Tenerifeaccording to a ruling of the Central Contentious-Administrative Court number 7 of Madrid, in which the magistrate-judge Eduardo Ángel Perdiguero argues that the resolution signed by the sSecretary of State for SecurityRafael Pérez Ruiz, on March 8 of this year by which the dismissal was decreed was not motivated enough so that the command of the Armed Institute could defend itself.
The sentence was signed on October 26 and It is not final, since an appeal can be filed against it. in the same judicial body within fifteen days following notification to the parties. In this way, Tenerife produces a case similar to that of Civil Guard colonel Diego Pérez de los Coboswho was dismissed from the Madrid Command Headquarters for not informing the Minister of the Interior, Fernando Grande-Marlaska, of a judicial investigation to determine whether the 8-M demonstration in Madrid could have contributed to an expansion of covid-19. The Supreme Court decided three years later that Pérez de los Cobos should return to the position of head of Command, which occurred last July.
Corruption cases
The dismissal of Colonel José María Tienda from his position at the head of the Command occurred in the midst of two cases of corruption. The first was the Mediator casein which the alleged payments made by businessmen to former PSOE politiciansto an intermediary and to Civil Guard Division General Francisco Espinosa Navas in exchange for benefits for their commercial companies.
And the second was the one called Barracks casefor which a Canarian businessman, Ángel Ramón Tejera de León, known as mon and under the command of the Civil Guard for the numerous orders and concessions that the builder received for carrying out, sometimes partially or defectively, renovation or maintenance work in barracks houses and facilities of the armed institute.
Colonel Tienda Serrano appears in a conversation with General Espinosa Navas, in the investigation of the Mediator case, in which they talk about a “cousin.” In the absence of being able to confirm it, one of the suspicions of the Internal Affairs of the Civil Guard is that both were referring to Tejera de León.
In the investigation of the Barracks case, internal affairs includes works that the businessman Mon carried out in the offices of the Armed Institute in the province of Santa Cruz de Tenerife between 2014 and 2021, most of them through direct awards. In other contracts, his competitor in the job awarding contest was a partner. Ángel Ramón Tejera de León is the link between both corruption issues: the Mediator case and the Barracks case.
However, so far there is no evidence that José María Tienda Serrano has been called to testify as an investigator in any of these matters.
Appeal appeal
Following his dismissal on March 8, Colonel Tienda presented a appeal to the Ministry of the Interior, which was dismissed on May 25. The former head of the Civil Guard Command of Santa Cruz de Tenerife then decided to file a contentious-administrative appeal. Tienda Serrano based his claim on the fact that, for his dismissal, the established legal procedure was not followed, there was no motivation and there was a misuse of power.
The State lawyer opposed the appeal and requested confirmation of the resolution of the Ministry of the Interior, with the arguments that the Head of Command is a freely appointed position, “so it can be dismissed due to loss of trust due to inappropriate behavior.” copy”.
In its writing, the State Attorney’s Office states that there was a “succinct motivation” in the resolution of the termination of the Store, so there was no helplessness for the colonel. He also rejected that there was a misuse of power, since it is not explained what different purpose was sought with the dismissal of Tienda.
The magistrate-judge Eduardo Ángel Perdiguero states that the ruling 1183/2022 of September 27 of the Supreme Court states that “the legal framework of the Civil Guard does not prevent, but rather confirms, the application of our doctrine on the motivation of the acts discretionary in general, and those that take the form of dismissal from positions accessed through the free appointment system in the Civil Guard.
The magistrate remembers that The jurisprudence of the Supreme Court requires not only a formal motivation, but that it “not be vague, imprecise or ritualistic.”. In addition, he points out that he must “express the reasons why personal confidence in performing the position has declined and the reasons why the conditions to continue performing the discretionary position are no longer met.”
The ruling recalls that in the report issued by the Human Resources Service of the General Directorate of the Civil Guard, the dismissal derives from the loss of confidence due to “non-exemplary behavior.” “This general formula is not specified in individualized facts that allow the appellant to defend himself against them and, therefore, against dismissal,” the ruling clarifies.
Given these circumstances, the judge determines that the resolution of the Ministry of the Interior is not motivated enoughso it must be annulled and, in this way, the contentious-administrative appeal formulated by Colonel José María Tienda Serrano is upheld.
The costs of the process are imposed on the Ministry of the Interior, pursuant to article 139.1 of the Law Regulating Contentious-Administrative Jurisdiction.
Remunerations
The Court’s ruling declares the right of Colonel José María Tienda to re-enter the position from which he was dismissedhead of the Santa Cruz de Tenerife Command, and to be paid the salary differences not collected since the date on which the dismissal became effective.
Tienda joined the Headquarters of the Provincial Command of Santa Cruz de Tenerife in 2012. Shortly before his dismissal was decreed in March, he had requested a change of destination to a lower category position, to the Plana Mayor Zone, where He would not have had any responsibilities or commands in his charge, so he would have been totally relegated from his main activity.
Part of Colonel Tienda’s career in the Civil Guard was linked to the Helicopter Unit (UHEL) and in his eleven years as head of the Provincial Command of Santa Cruz de Tenerife he was characterized by his discretion.