The story of former judge Luis Acayro Sánchez (Tenerife, 1976) is not at all common. It is not a bad thing when a court decides to throw a judge out of office, but it is even less so when the ruling is signed by a totally fractured Supreme Court. Three votes in favor and two votes against decided to disqualify this man who owned a square in Santander (Cantabria) from the judicial career for 10 years from where he had been fighting against urban corruption for years. Acayro, convicted of prevarication, intends to win his case in the Constitutional Court.
a punishment imposed by the Superior Court of Justice of Cantabria (TSJC) and increased the penalty, which meant the definitive loss of the position he held and the inability to obtain employment with jurisdictional functions or public office for a decade. The underlying issue was strictly legal: knowing if he made a “mistake” when making a decision or if he did so “knowingly” unfairly.
The events date back to 2018 when Acayro, then head of the Contentious-Administrative Court number 2 of Santander, issued an order in which he asked the Castañeda City Council (1,600 inhabitants) for documentation to justify a series of contracts that endorsed an urban planning action such as the hiring of the external lawyer José María Real by the council. The matter ended up on file in 2019, like so many others, agreeing with the City Council. But in 2021, two years later, the Real lawyer, together with the Cantabria Bar Association, raised the issue to file a complaint against the judge for prevarication.
The nuclear question was based on whether the judge exceeded his powers when he requested information from the City Council and did so with alleged injustice. For prevarication there must be fraud and it is difficult to prove it to remove a person from the race, explain several legal voices. First, because the system of internal remedies operates that corrects errors that judges may make and, second, because it is not easy to demonstrate that a decision – including that of putting someone in prison who is later acquitted – has not been a mere mistake.
Legal sources related to the case also explain that in the background of this complaint, which was filed years later, there were personal concerns against Acayro in Cantabria. At that time, the judge had tried to be promoted to a position in the Superior Court of Justice of Cantabria (TSJC) for which the Judiciary had appointed another magistrate. Acayro had contested the promotion of this other magistrate without success. But the man participated in the Chamber that accepted the complaint against him for processing, as well as in the court that tried and convicted him.
The sentence of the Criminal Chamber of the Supreme Court was commented on in certain circles of the judiciary not so much because of the sentence itself, but because of the very harsh individual votes of the magistrates Antonio del Moral and Leopoldo Puente who considered that their three companions – the speaker, Vicente Magro; the president of the Chamber, Andrés Martínez-Arrieta; and Judge Ana Ferrer—were “manipulating or twisting” the facts that had been declared proven in the initial ruling (that of the Superior Court of Justice of Cantabria) to eliminate any trace of “mistake” and be able to tie up the criminal conduct.
The dissenting vote has established the details of the appeal for protection presented by Acayro before the Constitutional Court. “The proven facts [de la sentencia inicial] in no way do they allude to the awareness of the injustice required by the crime of malicious judicial prevarication of article 466 of the Penal Code, which in itself should have led to acquittal,” reflects the document to which EL PAÍS has had access. In its opinion, the Supreme Court has violated the prohibition of “reconsidering or reevaluating” the facts proven against the prisoner and has introduced lines that were not in the initial sentence.
The Cantabrian court left in writing that Acayro “erroneously believed he was acting in compliance with his professional obligation,” so he argues, in this appeal filed on November 3, that “it is not possible for an individual to believe that he is acting in compliance with a duty—that is, in accordance with the law—and at the same time, be aware of issuing an unjust resolution.”
Furthermore, he introduces the thesis that he did not have the right to an impartial judge due to the participation in the process of this magistrate against whom he had undertaken an administrative procedure within the Judicial Branch in order to be promoted and obtain a place in the Superior Court of Justice of Cantabria. Although Acayro tried to challenge him, he did not succeed. If the Constitutional Court agrees to go into the substance of this issue, it will be able to draw a clearer line on the limits of the judges’ prevarication.
