The story of former judge Luis Acayro Sánchez (Tenerife, 1976) is not at all common. It’s not a bad thing when a court decides to remove a judge, but it’s even less so when the ruling is signed by a totally fractured Supreme Court. Three votes in favor and two against decided to exclude from the judicial career this man who for 10 years had owned a square in Santander (Cantabria), where he had been fighting against urban corruption for years. Acayro, convicted of abuse, intends to win his case before the Constitutional Court.
Last July, the Criminal Chamber of the Supreme Court approved a punishment imposed by the Superior Court of Justice of Cantabria (TSJC) and toughened the sentence, which meant the permanent loss of the position held and the impossibility of obtaining a job with judicial functions or a public office for a decade. The underlying question was strictly legal: knowing whether he had made a “mistake” in making a decision or whether he had “knowingly” done so unfairly.
The facts date back to 2018, when Acayro, then head of the Administrative Litigation Tribunal number 2 of Santander, issued an order with which he asked the municipality of Castañeda (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 municipality. The matter ended up on record in 2019, like many others, in agreement with the City Council. But in 2021, two years later, Real’s lawyer, together with the Cantabrian Bar Association, raised the issue to file a complaint against the judge for prevarication.
The nuclear issue turned on whether the judge had exceeded his powers in requesting information from the City Council and had done so with alleged injustice. For prevarication there must be malice and it is difficult to demonstrate this to distance a person from the race, explain various legal voices. Firstly, because the system of internal remedies works which corrects the errors that judges may make and, secondly, because it is not easy to demonstrate that a decision – including that of putting someone in prison who will later be acquitted – was not a mere mistake.
Legal sources linked to the case also explain that the origin of this complaint, filed years later, were personal concerns against Acayro in Cantabria. At that time, the judge had sought to be promoted to a position at the Superior Court of Justice of Cantabria (TSJC) for which the Judiciary had appointed another magistrate. Acayro had unsuccessfully contested the promotion of this other magistrate. But the man participated both in the House that accepted the complaint against him for consideration and in the tribunal 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 for the sentence itself, but for the very harsh individual votes of magistrates Antonio del Moral and Leopoldo Puente who considered that their three companions – the rapporteur, Vicente Magro; the president of the Chamber, Andrés Martínez-Arrieta; and judge Ana Ferrer – were “manipulating or distorting” the facts that had been declared proven in the initial sentence (that of the Superior Court of Justice of Cantabria) to eliminate any trace of “error” and be able to link the criminal conduct.
The vote against established the details of the protection appeal presented by Acayro before the Constitutional Court. “The proven facts (of the initial sentence) do not in any way allude to the awareness of the injustice required by the crime of willful judicial abuse referred to in Article 466 of the Criminal Code, which in itself should have led to acquittal”, reads the document to which EL PAÍS had access. In his opinion, the Supreme Court violated the prohibition on “reconsidering or re-evaluating” the facts proven against the prisoner and introduced lines that were not in the initial sentence.
The Cantabrian court left in writing that Acayro “erroneously believed that he was acting in accordance with his professional obligations”, 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 accordance with a duty – that is, in accordance with the law – and at the same time be aware of issuing an unjust decision”.
Furthermore, it introduces the thesis according to which he was not entitled to an impartial judge due to his participation in the trial of this magistrate against whom he had undertaken administrative proceedings within the Judicial Power to be promoted and obtain a position at the Superior Court of Justice of Cantabria. Although Acayro tried to challenge him, he failed. If the Constitutional Court agrees to delve into the merits of the issue, it will be able to draw a clearer line on the limits of judicial abuse.
