The General Council of the Judiciary has decided to suspend Judge Rafael Lis from his duties for six months, considering it proven that he committed a "very serious" offense in the processing of a case in which he had an "indirect interest". Lis's wife, Margarita Alejo Hervás, was at that time the lawyer of Juan Francisco Rosa, and the case being handled by the judge was being used by Rosa and other defendants in the Unión case to try to stop that procedure. As the Prosecutor's Office warned at the time, Rafael Lis turned that case into a "proscribed instruction of the instruction" of Unión.
In its resolution, dated September 27, the Council makes it clear how unusual it is to impose a sanction of this type, since they are only applied when the action of a judge has been "manifest, inexcusable, evident, palpable and clearly demonstrative that the minimum required diligence has been omitted." In this case, the reason is that Lis continued to carry out proceedings in that case after a challenge incident had been filed against him in October 2014, precisely because of his marital relationship with Rosa's lawyer, which required him to immediately withdraw from the procedure.
However, almost 20 days after receiving that challenge incident, Lis issued an order separating an extension of the complaint from another of the defendants in Unión from the case. It was Luis Lleó who presented that extension of the complaint, and he did so just the day after the challenge incident against Lis was registered. And when the judge separated it from the case and sent it to the Dean's Office for distribution, it returned to his Court and he continued to investigate it himself, opening new proceedings. And all this despite the fact that the Provincial Court had already resolved the challenge incident by then and had removed him from the main case, due to the existence of "doubts about his impartiality."
These same facts, also including that in the Dean's Office there is not even a trace of the entry of that complaint or how it returned to Lis's Court, and that the new case was kept hidden from the Prosecutor's Office and the court clerk, are also being investigated in a criminal case opened in the Superior Court of Justice of the Canary Islands, which admitted a complaint against Lis and is investigating him for three alleged crimes of malfeasance, falsification of a public document and malicious delay in the administration of justice. But in addition, in parallel, this disciplinary file opened by the General Council of the Judiciary has just been resolved, which focuses only on the fact that Lis continued to intervene in a case from which he was obliged to withdraw.
"He doubly perverted the guarantee that the challenge attends to"
"He was prohibited from behaving in the way he did," states the resolution of the Disciplinary Commission of the CGPJ. In addition, it adds that Judge Lis's attitude "had the effect of doubly perverting the guarantee that the challenge attends to", and that it is "essential in a State of Law" to ensure the impartiality of judges. On the one hand, he made "the time and effects of the challenge" depend on his will, by delaying his response to that incident and by continuing to carry out proceedings in the case. On the other hand, he "caused the breakdown of part of the process in which his impartiality was being discussed, managing through a new distribution to become aware of that separate piece again, for which he had to be challenged for the second time and definitively removed from it."
In the allegations he presented in his defense within this disciplinary file, the judge did not deny the facts, but argued that "they do not constitute any administrative infraction." Specifically, the magistrate argued that the regulations did not oblige him to withdraw from the procedure until the deadline for submitting allegations to the challenge incident had passed and until the clerk sent the case to the judge who was going to replace him in that instruction. "In no case can he be sanctioned for a matter susceptible to interpretative discrepancy," the judge argued. However, the Council responds forcefully, denying that any interpretation is possible on this issue.
"It is not a legal interpretation or application in which there is room for appreciation," the resolution states, adding that "from the "reading" of the Criminal Procedure Law (and also of the Civil Procedure Law, to which it indicates that Lis refers "repeatedly" in his writing), it is concluded "directly and incontrovertibly" that a judge cannot continue processing a case from the moment a challenge incident is presented. The only exception is for "urgent decisions that do not admit delay", but it makes it clear that this was not the case of the order issued by Lis separating Lleó's extension of the complaint. In this regard, it also emphasizes that the judge took only 17 business days to resolve that extension of the complaint, which was also presented just the day after the challenge incident against him was received.
He also failed to comply with the deadline for responding to the challenge
On the other hand, considering Lis's argument that he could intervene while the deadline for submitting allegations to the challenge incident lasted, the Council adds that "the deadline provided for in the procedural rules" for submitting those allegations and, in particular, for the judge's own response was also not met. According to the Law, the allegations must be presented within three days and the following day, the judge must rule accepting or rejecting the cause of challenge. However, in this case the challenge incident was registered on October 29 and Lis did not issue his order rejecting the challenge until November 17, 7 days after receiving all the allegations from the parties.
Furthermore, it was that same day when he issued the order separating Lleó's extension of the complaint from the case. From that moment on, he did stop intervening cautiously in the initial procedure, from which he was finally definitively removed by the Provincial Court three months later. However, he continued to process Lleó's complaint, which returned to his Court in circumstances that the Superior Court of Justice of the Canary Islands is now investigating, within the criminal case opened against the judge.
Pending the evolution of that case, for the moment the Council considers that Lis's action "produced discredit in the Judiciary and in the eyes of the procedural parties, who after affirming the magistrate's partiality, verified that he made the time of resolution of the incident and the breakdown of a new separate piece of the matter from which he was challenged depend on his decision, which by returning again to his competence due to the distribution, made it necessary to promote another second challenge."
The Prosecutor's Office requested an even greater sanction
During the processing of this file, the Council had to summon Judge Lis up to three times, since he could not be located the first two times to deliver the summons. Finally, on June 22 he appeared to testify, and in August the promoter of Disciplinary Action had already issued his proposed resolution, in which he recommended a sanction of six months of suspension for a very serious offense. The Prosecutor's Office, for its part, requested an even higher sanction, of one year of suspension. In its case, the Public Prosecutor's Office stated that Lis acted with "full awareness of the duty of abstention that was incumbent upon him" and with "evident affectation of the principle of impartiality and the right to due process with all guarantees."
Finally, last September the Council accepted the proposal of the Promoter of Disciplinary Action and agreed to impose on the judge half a year of suspension, considering that it was the proportional sanction given the circumstances, between the minimum of one day of suspension and the maximum of 3 years contemplated by the regulations for this type of sanctions for very serious offenses.
Although this decision is still subject to appeal before the General Council of the Judiciary itself, the resolution of the CGPJ already orders that it be communicated to the president of the Superior Court of Justice of the Canary Islands and to the Personnel Service of the CGPJ, as well as to the Management of the Ministry of Justice and to the General Judicial Mutual Society, "for the purposes of the execution of this sanction." Currently, the judge remains in charge of the Investigating Court Number 3 of Arrecife, to which he rejoined at the beginning of last September, after having spent several months on leave. At that time, his first decision was to recuse himself in the case that he had separated with Lleó's complaint. And it is that although he had already been challenged by the Prosecutor's Office, he again rejected the challenge and the Provincial Court was not given the opportunity to resolve that new incident.
