The blockade of the General Council of the Judiciary keep breaking all records. This Saturday the government of the judges fulfills three years in office, and remains the only constitutional body not renewed after the agreement between PP and PSOE to remove the Constitutional Court, the Accounts Court or the Ombudsman from the interim last October .
The political impulse to renew the rest of the organs instilled some optimism among the magistrates regarding the future of the CGPJ, after months of accusations crossed between the two main parties and delays marked by continuous electoral appointments, in Andalusia, Galicia, Euskadi or Madrid. Some even ventured to speak of a renewal “in weeks” and set as a ceiling this December 4But the negotiations remain stranded and socialist and ‘popular’ have dampened expectations.
The Currently the main obstacle is in the system of election of the members of the council. The PP puts as a red line that the judges are the ones who elect the majority of their representatives and not the politicians. Since 1985, the Congress and the Senate have elected with a reinforced majority of three fifths – for which the agreement of the two main parties is necessary – the 20 members of the Judiciary, 12 of them active judges at the proposal of the judicial associations .
In practice, it is the PP and the PSOE who have traditionally reached a quota pact to distribute the members and the president of the organ, which has aroused criticism from judicial associations. Both the European Commission and the Council of Europe have pressured Spain to urgently renew the CGPJ following European standards, that is, for the magistrates to elect the majority of the body’s members.
The election system, the red line for the two negotiators
The magistrates’ associations share this request, although there is a division between those who ask to undertake this reform before the renovation and those who claim to do it after so as not to extend the interim any more. The latter is the case of the progressive Judges and Judges for Democracy. “The solution is for them to sit down, negotiate and renew it. Once it is renewed, we can debate whether the judges can choose it, but that is another debate,” its spokesperson, Ascensión Martín, tells RTVE.es.
On the other side are the conservative Professional Association of the Magistracy and the Francisco de Vitoria Judicial Association (AJFV). These urge the reform of the Organic Law to return to a system similar to the one prior to the reform of Felipe González in 1985, by which the judges elect 12 of the 20 members. “The parties are resisting basically because they share the Council”, has criticized Jorge Fernández, spokesman for the AJFV, on National Radio.
The parties continue to accuse each other of not wanting to renew the body. On the one hand, the PP assured after the renewal of the Constitutional Constitution that “The ball is now on the wing of Pedro Sánchez”. “If he wants, the CGPJ will be unblocked tomorrow. For that, he has to assume the commitment that the judges are elected by the judges,” said his national spokesman, José Luis Martínez-Almeida.
On the other hand, the Minister of Justice, Pilar Llop, assured in The night in 24 hours that the CGPJ “is blocked because the PP could unblock it” and does not do so by making “excuses.” “They say they don’t like the current election system, but they’ve been using it for 35 years and it has always seemed good to him “, Llop assured.
The PSOE defends the current system, since in “a rule of law” and in a “full democracy” like the Spanish, “Neither judges can elect judges, nor can politicians elect politicians.” “Parliament is the one that has to choose the three powers. The democratic base is essential,” said the Minister of the Presidency, Félix Bolaños, at the head of the negotiation together with the general secretary of the PP, Teodoro García Egea. United We, for its part, has criticized the “class bias” of the judiciary, for which it proposed a “judicial MIR” to access this career.
Several times close to agreement
Since December 4, 2018, when the mandate of the Council elected in 2013 expired in times of the absolute majority of Mariano Rajoy, the negotiations have come very close to fruition on two occasions.
The first was shortly before that date, with an agreement in principle between the PP and the PSOE to renew their members. The body would go from having a conservative majority, as at present, to a progressive one, with 11 judges out of 20, and the presidency of the conservative Manuel Marchena, who would rise to fame later for presiding over the trial of the leaders of the ‘procés’.
Everything was on paper for a WhatsApp message from the then leader of the PP in the Senate, Ignacio Cosidó, in which he assured that with the pact his party would control the Second Chamber of the Supreme Court, the one in charge of judging corruption cases “from behind.” The scandal caused by the publication of this message led to the resignation of Marchena and a return to the starting box.
In October 2020, the Government increased pressure on the PP by launching a controversial reform to lower the majorities necessary to renew the Judicial Power. This would go from three fifths to the absolute majority, so the support of the ‘popular’ would not be necessary. The proposal, however, received harsh criticism from the opposition, the majority judicial associations and European organizations, until the Executive withdrew it in April this year.
Shortly before, in February, a new pact principle arrived. The lists submitted by the two negotiators in 2018 were maintained, with little change. However, when it seemed that the agreement was closed, the negotiations broke down due to the veto of the PP to the appointment as a member of the progressive judge Ricardo de Prada, one of the authors of the sentence of the Gürtel plot. The ‘popular’ had made it a condition, for months, that the purple formation was not present in the negotiation.
What does the blockade mean?
A report from the Supreme Court himself warned that by the end of the year there will be 60 unfilled positions in the courts, 16 of them in the Supreme Court, where the situation is particularly worrying, since it represents more than 20% of the workforce. They are retirements or deaths that cannot be replaced by lengthening the current positions, as in other Superior Courts of Justice, but are left vacant due to the prohibition of appointing new acting judges.
The High Court calculated in the report, published in October, that I would dictate a thousand fewer sentences at the end of the year due to the paralysis in the renewal, and he warned that the situation was “unsustainable” and could reach “collapse” if it was maintained over time.
The situation is especially serious in the Contentious-Administrative Chamber, which resolves appeals on measures related to the pandemic, or government decisions such as pardons to the leaders of the ‘procés’. Next spring there could be eight vacancies. The situation of the Sala de lo Social, which deals with labor disputes, and that next October could have 40% of its vacancies is also worrying.
Last push for renewal
The last impulse to unblock the CGPJ came with the renewal of the Constitutional Court. Both PSOE and Unidas Podemos hoped that they had accepted the controversial appointment of magistrate Enrique Arnaldo will lift the reluctance of the PP to reach an agreement regarding the Judiciary.
Arnold was the candidate of the four agreed between the Government and the PP for the TC that more controversy sparked given his collaboration with FAES and its appearance in the cases Palma Arena and Lezo. The President of the Government, Pedro Sánchez, acknowledged that he did not like “some name” of those agreed between the parties and several deputies even skipped voting discipline to reject these appointments, such as the socialist Odón Elorza. All this, they assured, as an assignment for the ‘popular’ to give their arm in the only organ still blocked.
Nevertheless, the negotiating table headed by Bolaños and García Egea, continues to make no progress. Pablo Casado’s party maintains its demand to modify the election system and the Socialists place it as a red line.
Who forms the CGPJ and how are its members elected?
The The highest governing body of the judges is made up of 20 members, 12 of whom are active judges elected by Congress and the Senate (six and six, respectively), from a list proposed by judicial associations. The other eight are jurists “of recognized competence and with more than fifteen years of practice in their profession,” according to article 122 of the Constitution. The Lower House elects four and the Upper House the other four by a three-fifths majority.
The Magna Carta does not specify what should be the method of election of the twelve magistrates, so that in their first term they were chosen by the judges. In 1985 the law was amended so that it was Parliament who appointed them. And in 2001, under the government of José María Aznar, the law was modified, but the choice of judges was not given. In Organic Law 2/2001, of June 28, it was maintained that the election of the 12 members would be from the Congress and the Senate, although they introduced that the judges’ associations could present candidates and the Parliament would choose from that list.
The current members were elected in 2013, in times of the absolute majority of Mariano Rajoy. Ten were proposed by the PP, seven by the PSOE, one by IU, one by CiU and another by the PNV. The current president is the conservative Carlos Lesmes. Between the CGPJ and the Executive of Pedro Sánchez there have been several clashes related to appointments, the election system, and also because of the criticism of the then Vice President of the Government Pablo Iglesias to the judges.