The first section of the contentious-administrative chamber of the Superior Court of Justice of the Canary Islands (TSJC) has ruled in favor of an opponent of the 15 positions of the Local Police of Arrecife and has dismissed the appeal filed by the City Council, which is ordered to pay the costs. The TSJC thus confirms a ruling, from October 2012, which annulled an administrative act of the City Council, through which the appeal filed by this opponent against his qualification as unfit was dismissed.
The TSJC chamber "fully" shares the arguments of the court of first instance regarding "the absolute lack of motivation for the exclusion of the appellant, for not having passed the second test of the third exercise." "The lack of motivation goes beyond the violation of ordinary legality and enters into the violation of the fundamental right of constitutionally protected defense, as the claim is exercised without knowing the reasons why the Qualifying Tribunal excluded him from the list of approved candidates," it indicates in its ruling.
In this sense, it recalls that the Arrecife City Council based its decision on this report from the Qualifying Tribunal to resolve by decree of the Mayor, dated October 14, 2011, which dismissed the claim of this opponent. The TSJC considers that in this report "not a single reference is made to the specific case." In this sense, it assures that it is limited to "collecting the grade that was granted to the first and second of the topics presented" by this affected person and to "transcribing the bases of the call, related to the second test of the third exercise."
The report on which the City Council based its rejection of the appeal filed by this opponent does not have a reference, "however minimal, to the particular circumstances that determined that the qualification of the second topic" was 3.75 points, which determined that it was not necessary to continue with the correction of this person's exams.
Lack of motivation "evident"
"The lack of motivation is so evident at first glance that it makes any other consideration unnecessary in the face of what is a requirement of the selection processes as a true guarantee of respect for the principles of equality, merit and capacity and, as is obvious, as a guarantee of the fundamental right of defense and even as a guarantee of control by the Courts of Justice of the exercise of the technical discretion of the Qualifying Tribunals as a concept diametrically opposed to arbitrariness," the chamber points out in its judicial ruling.
The Consistory filed an appeal against the judgment of first instance in which it denounced the "error" of the judge, since the excluded applicant "had not requested the correction or revision of his exercise." However, the TSJC recalls that the opponent stated in a letter to the City Council, on September 29, 2011, that he was challenging the list of suitable and unsuitable candidates, so the request for revision of the exam "was deductible, without any interpretive effort."
"It is evident that challenging does not only mean that information is requested, but that it involves exercising the means of challenge conferred by the legal system and claiming the revision of the exam because it is understood that there is an error in the qualification and that it must be declared suitable. He also requested it in relation to the evaluated exercises of the applicants who had been declared suitable," insists the TSJC, which dismisses the City Council's appeal against the judgment of first instance, which ruled in favor of the opponent.
The affected person does not know what will happen from now on after this ruling, against which no ordinary or extraordinary appeal for cassation is possible. Furthermore, he considers that "the problem is that there are no correction criteria" so the Consistory is not able to resolve this issue, despite the two rulings against it.
Only 10 people passed the test
These oppositions, held in 2011 under the Mayoralty of Cándido Reguera, were very controversial and, even, the unions of the Local Police of Arrecife assured that they were studying to file an appeal understanding that the process had not been "neither transparent nor clean." Of the 15 positions announced, finally only 10 people passed the tests of 308 applicants and the 13 appeals that were filed were dismissed.
At that time, the then councilor of the Local Police of Arrecife, Cristina Marrero, pointed out that "everything was in order." "If they believe that they have to go to the Courts, let them go, but I trust the technicians and that everything has been done with total regularity. There is a court that is the one that evaluates the candidates and they will have their minutes and they will be able to demonstrate what they are asked," she indicated at the time.
