The National Court has once again refused to remove Judge Manuel García-Castellón from the Tsunami case, in which he maintains the former president of the Generalitat, Carles Puigdemont, accused of terrorism. The Criminal Chamber has rejected an appeal presented by the person investigated in the Oleguer Serra case in which he requested the recusal of the magistrate for some statements made during a conference held in Orense on October 5 of last year.
In these statements, the magistrate stated that "the Constitution does not prohibit slavery and yet it is not possible" and added about the leaders of the process: "Have these gentlemen said if they are going to repeat it as soon as they can? So So, will this amnesty be the first of many others to come?"
In an order, the magistrates of the Third Section refuse to study the merits of the matter since the challenge presented presents an “insurmountable formal defect” of lack of special power to challenge, which is why it must be dismissed. The court considers that, according to the law, there is a "cause for inadmissibility" because the order that Serra is fighting cannot be appealed, although it still examines what he raises in his appeal.
The Chamber assumes that there has been some "procedural infraction" in the processing of the challenge and speaks of "procedural chaos", but rejects that there has been any defenselessness of the investigated and considers that there is an "insurmountable formal defect" due to the lack of a power especially in the challenge formulated.
Now, although it endorses Judge García-Castellón's decision to remain in charge of the case, the court questions some of the arguments with which he flatly rejected the challenge raised by Oleguer Serra, such as the one related to the "extemporaneity" of his petition. The Chamber reminds the judge that "it cannot be required" to formulate a challenge before being part of the procedure just because one is aware of the existence of the case due to press reports, "especially when" he had expressly denied Serra's appearance months before. .
Oleguer Serra argued in his appeal, to which other investigated parties joined, that García-Castellón should not be in charge of the terrorism investigation in this case due to the position he maintained at that conference on October 5, 2023. However, The Chamber does not even begin to evaluate those words because, since the aforementioned "insurmountable" error exists, it considers that "it is not possible to analyze whether the statements affect the necessary appearance of impartiality, regardless of the impression that a third party unrelated to the process may have about the opportunity to do them."
"Such analysis would correspond, where appropriate, to the incident instructor or the body competent to resolve the merits of the challenge," says the court.
