Jesús María Santos, one of the judges of the Superior Court of Justice of Madrid (TSJM) who has been part of the shortlist that has the complaint is inadmissible of the president of the Government, Pedro Sanchezagainst the judge Juan Carlos Peinadowho is investigating his wife, has issued a dissenting opinion in which he indicates that a separate piece should have been opened for investigate whether there was procedural bad faith when presenting it. He was interested in questioning the complainant, that is, Pedro Sánchez, and he defined the complaint as “consciously gratuitous or arbitrary.”
This is reflected in his dissenting opinion, in which the magistrate points out that although he agrees with his fellow judges with inadmissing the complaint, he wants to emphasize that it is “quite defensible” that the filing of the same “may entail a abusive exercise of the right to complain“.
“This Chamber should have considered examining whether the inadmissible complaint shows, even with clamorous evidence, a repeated abusive exercise of criminal action, in violation of procedural good faith,” he indicates, adding that “the complainant has been assisted by the Attorney’s Office. of the State so, with very high probability, he could not avoid knowing the unreason of the complaint, the exorbitant character and contrary to the procedural good faith with which he was carrying out the criminal action.” He also remembers that this possible procedural bad faith would mean, according to the Criminal Procedure Law (LECrim), a fine for Pedro Sánchez who would range from 180 euros to 6,000 euros.
There is no “twisting of the right”
After this, he emphasizes that in the present case the Peinado resolutions, by which the president filed the complaint for a possible prevarication of the judge, “they don’t even show signs of legal infringement and even less the twisting of the law (…) that defines the type of judicial prevarication”.
Next, he focuses on the fact that the complaint attacks the judge’s actions, such as summoning the president in person, which are “expressly and categorically” protected by current legislation, and recalls that the conduct for which Peinado is investigating Begoña Gómez They are not inseparable from her husband’s position. He adds that Sánchez does not have to have been aware of them either due to “his presidential position.”
The magistrate explains that the fact that the object of the investigation is limited to Begoña Gómez’s conduct since her husband was President of the Government “in no way does it mean that these conducts are inseparable from the position that the husband of the person under investigation holds” nor that he can have knowledge only because of his position.
And he emphasizes that even if there had been a violation of procedural law by Peinado, which he maintains is not the case, it would not be a crime of prevarication “due to its limited material entity.” He also wonders “how it can harm the dignity of the Presidency of the Government if its holder appears as a witness personally, and not in writing, before a magistrate who performs his duties.”
Copies of Sánchez’s statement
On the other hand, and in reference to the extension of Sánchez’s complaint due to the judge’s resolution in which he agreed to issue a copy of Sánchez’s statement to give to the parties, this magistrate explains that Peinado’s decision “is nothing but expression of scrupulous respect of the principle of contradiction”.
He points out that the assumption that the judge agreed to send a copy to the parties knowing that it would be leaked to the media “is an obvious judgment of intentions of which all comments are unnecessary.” And he adds that Peinado in his own providence seriously warned against possible leaks.
For all this, he points out that the complaint promoted by the President of the Government and materialized by the State Attorney’s Office “is consciously gratuitous or arbitrary” and “seriously undermines the climate of serenity and calm that should accompany the work of the Judiciary.” Thus, it concludes that the Chamber should have opened a separate piece to determine “through a reasoned agreement and after hearing the complainant whether the filing of the complaint entails abuse of law or procedural bad faith“.
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