Spanish military justice system annuls punishment for criticism of an appointment

Spain's Under-Secretary of Defense imposed a three-day punishment on a Colonel for a minor infraction of Organic Law 8/2014, part of the Disciplinary Regime of the Armed Forces, for making comments that were mildly disrespectful of the Armed Forces.  The punishment was confirmed by the Minister of Defense, Margarita Robles, therefore, the Colonel appealed to the Central Military Tribunal.  In December 2019, the Colonel in question was already in the reserves and found himself in Valencia, not having received a new posting.

The Under-Secretary, Alejo de la Torre, who was in the post from June 2018 until June 2020, called  the Colonel, so the latter traveled to Madrid and at approximately 6:00 p.m. on December 20, 2019, the Colonel went to the Under-Secretary's office.  The Under-Secretary presented  him with a document informing him of the proceedings that had resulted in his punishment for a minor infraction.  The Colonel read it and signed it.

The document revealed that the comments had been made by the Colonel during a farewell speech on December 3, 2019 at the military residence "El Alcazar," in Madrid.  The Under-Secretary questioned the Colonel, but the content of the questioning was not written down in any document.  Similarly, he questioned three generals and the following day a fourth, but none of these testimonies was written down.  The Colonel requested to be present at the taking of the testimony of the generals, but the request was denied.

Allegedly, the Colonel was punished because at the farewell dinner he said that the appointment of an official different from a lieutenant colonel in his department seemed to him an arbitrary decision that had caused him great pain.  The Colonel alleged that his rights had been violated: his right to the presumption of innocence, his right to a defense, his fundamental right to freedom of expression as well as the principle of legality and the duty to issue an explicit resolution in disciplinary matters.

The Colonel explained to the Under-Secretary that he had used the term "arbitrary" in the vulgar, not technical sense.  What he meant was the absence of norms regarding the appointment created space for arbitrariness, given the absence of certainty, but that he was not referring to any case in concrete.  He defended himself saying that he requested permission from his superior, a general, to change his speech and to make reference to the specific appointment. The general agreed and congratulated him on his speech.

The Central Military Tribunal criticized the fact that the persons present at the speech were not identified and they did not know the identity of the official who presided over the event, who should have reacted if the Colonel's words were inappropriate or out of bounds.  In addition, since the Under-Secretary was not present, he had to rely on the testimony of the military official who made the denunciation and that person was not identified to the Court.  The fact that the person was anonymous also affected the Colonel's possibility of defending himself, since he did not know what he was defending himself against.  The Military Tribunal criticized the surprise nature of the telephone summons and found for the Colonel because his right to defend himself had been breached.  The Military Court noted that the Under-Secretary, having summoned him to his office, should have informed him that a disciplinary proceeding had been opened, the grounds therefor and his right to be assisted by a lawyer or a member of the military.  He had not been able to question the accuser or any of the witnesses.

Others criticized the decision of the Military Tribunal and consider the offense a serious one, not a minor offense, considering that the comments were disrespectful of the Armed Forces.  They point out that the decision is not final and that the State has appealed to the Spanish  Supreme Court.  They are certain the Central Military Tribunal's judgment will be overturned and the punishment imposed by the Under-Secretary will be affirmed.