Five judges of the Court of Seville will write the new sentence against Chaves and Griñán in the ERE Andalusia case

In the said government agreement, dated November 7, the president of the first section of the Court accepts that in addition to judges Pilar Llorente Vara and Encarnación Gómez Caselles – two of the three judges who were part of the court that judged and rendered judgment conviction in this procedure -, the magistrates of the first section Francisco de Asís Molina Crespo, Juan Jesús García Vélez and Patricia Fernández Franco are also part of the Chamber, with the presentation corresponding to Pilar Llorente.

This Agreement, as indicated in its text, is issued once the Agreement of the Permanent Commission of the General Council of the Judicial Power (CGPJ) which responded to the urgent request addressed to it has been communicated to the First Section of the Court. the Superior Court of Justice of Andalusia (TSJA) regarding the formation of the court which must pronounce the new sentence.

Concretely, the Directing Chamber of the TSJA raised a question about the possibility that Judge Encarnación Gómez, currently assigned to the Provincial Court of Alicante and in an administrative situation of voluntary leave, joins the Chamber for the issuance of the new resolution.

Taking into account that the object of the consultation is of a jurisdictional nature and that the Organic Law of the Judiciary (LOPJ) prohibits the CGPJ from giving instructions on the application and interpretation of the legal system, the Permanent Commission of the CGPJ responded at the TSJA. informing that “the obligation remains for the magistrate to attend the formation of a Chamber for the pronouncement of the new sentence”, in accordance with article 194.2.3. of the Code of Civil Procedure.

Difficulty and legal significance of the procedure

The president of the first section of the Court makes this decision taking into account several aspects, including the fact that the judge who pronounced the sentence, Juan Antonio Calle Peña, cannot be a member of the Chamber and that another judge must be named. to this function, as well as the content of article 199.2 of the Code of Civil Procedure, “which advises forming the Chamber with the magistrates necessary to form a majority”.

Likewise, he alludes to the content of article 197 of the Organic Law of the Judicial Power, “which authorizes a greater number of magistrates to be called to form a Chamber when this is deemed necessary for the administration of justice ( which in the present procedure is undeniable), due to its difficulty and its legal scope)”, to which is added that “the question to be deliberated, without prejudice to what the Chamber could understand, could be configured in the sense of ‘have a strict and exclusive objective of legal accommodation’. the factual basis already established for the situation and the reasoning arising from the judgment of the Constitutional Court.

In accordance with the government agreement issued, the enlarged Chamber must be constituted according to the procedure indicated, its constitution must be notified to the appearing parties and the appropriate resolutions must be adopted by it.

This Agreement was adopted in accordance with the resolution of the CGPJ and the interests of the TSJA and the Presidency of the Provincial Court on the basis of the governmental functions which, according to article 198.1 of the Organic Law of the Judiciary, correspond to the presidents of the sections .