The judge of the Superior Court of Justice of Madrid Jesús Santos Vijande wrote a concurring opinion in which, agreeing with his colleagues on the inadmissibility of the complaint of the President of the Government against judge Juan Carlos Peinado, he maintains that the Chamber, Furthermore, he should have decided “to open a separate room in order to determine, by reasoned agreement and after hearing the complainant, If filing the complaint involves procedural bad faith“, with the effects established in article 247 of the Code of Civil Procedure.
This precept – which applies to all types of proceedings – establishes that when a court considers that one of the parties involved in a proceeding has acted violate the rules of procedural good faithmay impose, after processing a file, a fine which can range from 180 to 6,000 euros.
Santos Vijande affirms that Sánchez’s criminal action against Judge Peinado “may lead to an abusive exercise of the right to file a complaint”, which “is not only an expression of imprudence in the procedure but, even more seriously , real bad faith in this procedure. “
According to him, this is so: “The manifestly untenable character of the complaint – and its extension – is incontestable, precisely with regard to the jurisprudential doctrine cited in the complaint itself”, which is why it “patent, even with glaring evidence, a reiterated abusive exercise of criminal action“.
She emphasizes in this regard that “it is impossible not to attach due importance to the fact that the complainant was assisted by the prosecution -whose technical qualification is beyond doubt-, therefore, with a very high probability, he could not help but know the unreasonable nature of his complaintthe exorbitant nature and contrary to the procedural good faith with which it carried out the criminal action”.
For the magistrate, it was “consistent” to open this separate room because the unanimous resolution of the TSJM proclaims that the complaint of the President of the Government “lacks any basis, is speculative, responds to prejudices and a fallacious objective“.
According to him, the decisions of Judge Peinado that Sánchez considers prevaricatory “do not even show signs of violation of the law, much less of distortion of the law, of legally indefensible voluntarism which defines the type of judicial prevarication”.
The decision to take Sánchez’s statement as a witness in person and not in writing is “expressly and categorically protected by current legislation”, he emphasizes.
The complaint against the instructor is based “both on a subversion of what is the subject of the investigation and on a blatant ignorance of what trafficking is influence is criminal and in its different modalities”.
But even if Peinado’s decisions had resulted in a procedural violation – “of which there is not the slightest indication”, he insists – “this hypothetical violation could not constitute a criminal offense due to its nature limited material, its minimal impact on the interests of justice; judgments of intention concerning the aim pursued by the accused, also lacking evidence.”
The dignity of the president
“I do not understand how the fact that its holder appears as a witness personally, and not in writing, before a magistrate who exercises his function in and with the guarantees of a rule of law, can harm the dignity of the Presidency of the Government'”, adds Santos Vijande, who recalls that the written declaration of certain authorities is a “procedural privilege”.
“That the written statement of the President of the Government cited as a witness has historically been granted as an expression of respect for the position he occupies, without doubt,” he adds. “But from there to postulate that the inappropriate non-observance of these precepts by a judge can undermine the dignity of the person concerned – not to mention constituting a
crime of prevarication – there is an abyss”.
The magistrate affirms that a complaint “as unfounded as that promoted by the president of the government of the Kingdom of Spain and materialized by the public prosecutor’s office” is not only “consciously free or arbitrary”but also “seriously undermines the climate of serenity and calm which must accompany the work of the judicial power”.
“We must not forget,” he concludes, “that those who embody the other powers of the State have, constitutionally and legally, a very special responsibility to contribute to the safeguarding of human rights.” quiet environment that requires the function of judging and to protect the very independence of judges and magistrates as the ultimate guarantors of the rule of law, of the real and effective existence, not chimerical or illusory, of the primacy of Law consubstantial with a rule of law.
