New judicial blow to Minister Fernando Grande-Marlaska for the awarding of medals. The head of the Central Administrative Litigation Tribunal number 2 of the National Court, Luis Alfredo de Diego, issued a sentence ordering the Ministry of the Interior to award the Cross of Merit with red badge – which carries a financial reward – to Sergeant of the Civil Guard José Luis FM, who participated in the rescue efforts during the dana in which 237 people died in Valencia and other communities. The sentence considers it proven that the civil guard put his life at risk to save a person threatened by the flood. The sentence is not final and can be appealed.
The department of Grande-Marlaska had awarded this member of the armed institute in the month of May, but with an inferior and non-pensionable medal, the cross with white badge, despite the fact that the lieutenant colonel in charge of the Groups Specialized in Underwater Activities (GEAS) to which the agent belonged had requested that he be granted the higher one after having highlighted in a report that his actions entailed “an inevitable risk of losing his life”, a requirement included in the ordinance regulating the granting of the cross medal. with red badge. According to the command and it believes the sentence is proven, the non-commissioned officer was involved in the night rescue of a person who was isolated in an industrial warehouse surrounded by a “torrent of raging waters”, for which he had to cross a current of great virulence to prepare a lifeline that would allow his evacuation.
The officer appealed against the Interior’s decision, through the lawyer Antonio Suárez-Valdés, and now the National Court agrees with him. In the sentence, advanced by Confilegale and to which EL PAÍS had access, the magistrate concludes that the Interior’s decision to lower the decoration was motivated by a “false” and contradictory argument, maintaining that the officer had during his actions “everything necessary to safely access” the place where the victim was and return “without danger of being dragged away safely”. For the magistrate, this statement from the Interior Ministry “would be like stating that a Tedax attacker does not risk his life because he wears a protective suit or that a pilot of a fighter plane does so because he has an ejection seat”.
The sentence, which can be appealed, focuses on the Administration’s discretion in granting this type of recognition. Judge De Diego recalls that, although the awarding of medals “has, by its nature, a discretionary nature”, this “does not represent a blank check” for the Interior, which must justify its decision above all, as happened in this case, when it deviates from technical reports such as the one issued by the head of GEAS, who “due to their specialization and proximity have a more complete knowledge of the facts”. In these cases, continues the magistrate, a generic motivation is not enough, but the resolution “must explain in a reasoned manner why the initial proposal is rejected and a different solution is chosen”.
The ruling underlines that the lieutenant colonel’s assessment “is not a mere opinion, but the technical judgment of an expert” and that, therefore, “the Administration cannot ignore it without a powerful reason that justifies it”. In the case of the sergeant, the judge believes that the Interior has modified the initial proposal of the high command without “a counter-report that refutes the risk assessment” carried out by him and that it has “aggravated” the thesis according to which the agents who participated in that operation had everything necessary “to maintain that the risk, although existing, was managed and controlled”. “The fact that security measures are adopted (“safe access”) is not incompatible with the existence of an “unavoidable risk of losing one’s life”. In every high-risk operation, security measures are adopted precisely because the risk is extreme,” the judge replies.
The Administration confuses the adoption of safety measures, typical of every professional who finds himself facing a high-risk situation, with the non-existence of such risk. It is precisely the high danger of an operation that requires the use of security means and techniques”, adds the judge. The judge therefore concludes that the Interior “exceeded the limits of discretion” by denying the red cross to the agent and, therefore, not only cancels the decision – usually the administration is responsible for bringing the file back to the initial point to make a new decision – but also orders the Interior to award the medal with red badge to the brigadier without further delay and, furthermore, orders him to bear the costs of the procedure.
