“Unfit”. This is what three applicants to the Higher Corps of the Canarian Police found on December 23, 2019 when they went to consult the final qualifications of the medical test, the last step before being appointed intern officials. After that bitter Christmas, came the incessant search for answers to his automatic disqualification from the selection process after having passed the rest of the tests and being almost inside the body. Then, a whole journey of claims and waiting began. First, to the qualifying court and, given the delay, to the Diputación del Común, which, in a letter, admits that it repeatedly required a medical examination to know the reason for the exclusion and to respond to the complaints presented by the applicants. Finally, this organism received the file of the medical inspection in which it is detailed that “the existence of visible tattoos in some of the upper extremities is observed.” However, this inspection has been questioned by the Justice, which has agreed with these opponents in up to three sentences.
Tattoos in the Canarian Police ?: The Justice establishes that it is not a reason for expulsion or punishment if they are not visible
The regulations of this Autonomous Police state that “staff will not use earrings, bracelets, necklaces or similar ornaments. Nor will they use strident makeup or visible tattoos or piercings.” Only one day after the final notes of the 2019 selection process were published, in which three applicants were excluded for this reason, on Christmas Eve the commissioner of the Canarian Police issued an order for the base deputy commissioners in Gran Canaria and Tenerife in the that it demanded “to carry out the supervision of the personnel under its orders, having to inform in the non-extendable term of one month from the reception of this order”. That report should include which personnel wear “visible tattoos” during the provision of the service, that is, “the appearance of those tattoos that are visible if said personnel were in uniform, even though they generally perform the service in civilian clothes.” In addition, it indicated that said report “must be accompanied by a receipt or certificate about the start of sessions for the erasure of the tattoo and the duration of the treatment for its total elimination, which may not exceed six months, except for duly causes. justified “.
Recognition, in doubt
How was the medical evaluation carried out during the selection process of 2019? One of the sentences to which this newspaper has had access remarks that it does not enter into a discussion that it constitutes part of the medical examination “to verify the applicant’s conformity with the standards of external appearance established by decree 77/2020”. However, it is forceful when adding that the motivation of technical judgment is necessary and also sufficient motivation, which can be controlled. “This canon of motivation has not been fulfilled here. In particular, the Chamber considers that the acting administrative body should have indicated the size of the clothes that the applicant wore, exact measurements of the same, height of the applicant and, in case of a tattoo or similar mark should be visible, indicate the precise side of the body that is affected, the exact measurements of the mark in question and provide a photographic report of all of this, in such a way as to allow jurisdictional control of the reasonableness of the action administrative, something that here has been prevented “, summarizes.
This judgment of the Superior Court of Justice of the Canary Islands (TSJC) also cites jurisprudence of the Supreme Court (a judgment of December 16, 2014 on the so-called technical discretion) in its reasoning on requirements that the expert evidence must meet “to demonstrate that unequivocal and patent technical error that would allow reviewing the opinion of the qualifying body “. What these requirements point to is that such expertise cannot be limited to revealing a simple different technical opinion, but must incorporate elements that allow the court of justice to form its conviction on the kind of error that has been talked about with total security.
This Chamber not only considers the appeal of the opponent, but declares the “non-conformity to the Law of the contested administrative action” and annuls it, declaring the right of the appellant “to be declared fit, with all the inherent legal and economic effects.” That is, not only will he have to be reinstated at the time the process was left (before being appointed a trainee official), but he will have to be financially compensated with the wages that he has not received to date. In another of the judgments of another opponent, the ruling is also forceful: “The administrative file does not prove any cause of exclusion by reason of the rules of external appearance and presentation to the service. Consequently, the appellant’s claim must be upheld, continuing in the selective process “.
No photographs were provided with the tattoos
Until this ruling, other instances have spoken. For example, the Diputación del Común reminded the Ministry of Public Administrations, on which the Autonomous Police depends, in a resolution signed this August of the obligation to collaborate with this ombudsman and details that it made repeated requests in 2020 after the complaint filed in February of that year. In addition, he pointed out that the verification of this requirement (the tattoos) “was not carried out with the regulatory uniformities, since it should not be forgotten that it is not forbidden to use tattoos but that they are visible, so it is surprising that, in a process selective, the visibility of a tattoo is assumed, without checking its visibility with regulatory uniformity “.
“On the other hand, being a selective process in which transparency must govern, among other guiding principles of access to public employment, there is nothing to prevent the verification of this requirement being documented photographically, precisely to avoid situations such as the one analyzed in the present complaint, the questioning of that visibility, which was neither verified with the regulatory uniformities, nor was it documented photographically, circumstances that could be verified in view of the content of their reports in response to our requirements, “adds the resolution. For all these reasons, the Diputación del Común recommends that, “in future selection processes for access to the General Corps of the Canary Police, the verification of the requirements of the rules of external appearance and, in particular, the visibility of tattoos, in the selective process, is verified with the regulatory uniformities and documented photographically “.
Likewise, it emphasizes that this verification of the requirement of visibility of tattoos is carried out by the Qualifying Court, because, in the opinion of this institution, “it exceeds the competences of the medical inspection, the verification of a factual reality, such as It is the visibility of a tattoo with the regulatory uniformity, as it does not require specialized knowledge, medical in this case, which is required when it comes to determining the existence or non-existence of any cause of medical exclusion that would prove, if applicable , the possession or not, by the applicant, of the functional capacity for the performance of the tasks “.
The opponents themselves contributed photographs of what the Canarian Police uniform is like and how far it covers the arm to try to prove that they are not visible. The judge concludes in another of the sentences that “there is no record in the administrative record of the recognition carried out by the Medical Inspection or photographs proving that the tattoo is visible with the regulatory uniform as the visibility of the tattoo with the regulatory uniform has not been verified.” In addition, he adds that “there is no discretion in what can be observed and measured. It is a factual issue that has to be proven ”and that, therefore, no cause for exclusion is proven. Likewise, in 2018 another court ruled in this regard when an agent who covered his tattoo with a mesh was sanctioned. The Administrative Litigation Court No. 2 of Santa Cruz de Tenerife determined that “the plaintiff covers said tattoo with an elastic mesh that prevents it from being seen” and, therefore, “the plaintiff’s conduct is not constitutive of a minor offense.” For this reason, his appeal was upheld on understanding that “the resolution is not in accordance with the law.”
Current rulings on opponents can be appealed. Two weeks ago, the Ministry of Public Administrations and Justice of the Government of the Canary Islands indicated that they are recent rulings and that they are being studied. In addition, it should be remembered that August is a non-working month for the Judiciary. On the other hand, the Diputación del Común has given the same council a month to answer whether it accepts or rejects the reminder of legal duties and the recommendations made by said institution. Meanwhile, the aspirants wait until it is determined when they will join the corps. Sources close to the plaintiffs recall the sacrifice and effort involved in preparing this opposition and that they hope soon to be admitted to the process to carry out their work and that these events will not harm them in the future.