The plenary of the General Council of the Judiciary (CGPJ) has unanimously approved a report on the draft organic law on access to judicial and fiscal careers that is critical of the reform of Minister Bolaños, in which he appreciates “dysfunctions.”
Among the warnings of the government body of the judges alerts that the modification in the evidence of access to the judiciary can «Weakens judicial independence» because they will not show the objective knowledge of the applicants and about the reform of the ‘fourth turn’ warns that a “discriminatory” criterion is introduced into the race itself.
The document maintains that in the draft “certain draft innovations stand out and that they can generate doubts about the lack of suitability of any of the projected measures to achieve the objectives pursued by the legislator, both for reasons of legislative technique and for the objectives that the reform wants to achieve.”
Specifically, the vowels show their disagreement with the “extraordinary stabilization of temporary employment in judicial and fiscal careers”, with which they want to incorporate substitute judges and prosecutors and substitute magistrates. They believe that there is no “exceptional situation” required by constitutional jurisprudence to adopt this measure. To this is added that the situation would not be solved from the moment the proposal itself includes the maintenance of non -professional substitutions, ”he says.
On the oppositions the critical report that is dispensed with “of the elaboration of a agenda and of oral and written exercises, which are the exercises that allow, in the free opposition system configured by the draft, to value the knowledge of the applicant on the legal matters, contemplating, on the contrary, as a single proof to be developed in that phase, that consisting of a practical opinion related to a specific case».
«Si la prueba o pruebas concretas que se realicen no son suficientemente rigurosas, se corre el riesgo de que este llamamiento excepcional pueda evidenciar una renuncia a la comprobación objetiva de los conocimientos que el aspirante a juez posea sobre las materias jurídicas, o, cuando menos, una renuncia a que esa comprobación se efectúe en términos sustancialmente semejantes a los que siempre se consideraron y se consideran idóneos para medir los conocimientos jurídicos de los que aspire to enter the judicial career for the category of judge, ”he says.
And “that resignation can weaken the independence of the Judiciary, understood as the independence of each of the judges, judges, magistrates and magistrates in the concrete exercise of their jurisdictional function.”
And this, “explains,” because, “without disregarding the undoubted value of the experience in professional practice, the imprecision in the type of evidence proposed by the preliminary draft can reduce the guarantee that they are really chosen to perform that function those that are the greatest knowledgeable of the law and, therefore, those that in better conditions are to make the independence of the members of the Judiciary.”
Fourth turn
The report is also pronounced on access for the ‘Fourth Shift’, which allows the entry to the judicial career to law graduates who have been in a contest-opposition for 10 years.
It considers that the draft “modifies in significant aspects” access to the judicial career by setting, among other issues, that the number of places to be convened “may not be lower than the equivalent of one third of those offered for access by the free shift”, which “supposes a clear increase with respect to the current legislative forecast”; and by establishing that those who enter the career in this way will be recognized for all purposes five years of services provided in the category of judge in the jurisdictional order for which they would have accessed.
This report concludes that “this five -year recognition of services introduces a factor that could be considered discriminatory, to the detriment of those who have reached the category of magistrate by promotion from that of Judge, which is not justified.”
Adaptation period
Likewise, it emphasizes that the change in access evidence “implies an important limitation of the faculties until now granted to the Selection Commission and involves the danger of petrifying the way of access to judicial and fiscal careers by greatly hindering the possible adaptations that could be made in the different calls in the future.”
It affects that “without sufficient adaptation,” the primary access system is “seriously harmed” because the opposition body is not prepared for a change of this draft. Consequently, it recommends that, if this change is approved, “a period of ‘sufficient legis legis (4 or 5 years) should also be considered for adaptation.”
Regarding that the judges and judges in practices are maintained provide support and reinforcement services, it points out that “it may be the time to rethink” if they must be forced – before overcoming the initial training – to exercise “with all the responsibilities and in the same extension” as judges and magistrates.
He considers that “to provide full jurisdictional capacity to judges and judges who are not yet, being available to the president of the corresponding TSJ, who must prepare a report on the dedication and performance in the performance of their functions, for its assessment by the Judicial School, it implies a decrease of its independence, since in these conditions the jurisdiction cannot be exercised with identical amplitude to that of the holders of the judicial body.”
Thus, it recommends eliminating the aforementioned phase of reinforcement and replacement, being able to lengthen, in compensation, the phase of practices protected in different courts and courts.
It also points out the fact that the draft eliminates “any mention to the theoretical training that until now is also part of the formation of future judges and judges” and recommends keeping it in this phase.
Apart, he defends that “it should be maintained as a central way of access to the judicial career access by free shift, by the category of judge, without being able to configure as an egalitarian way of access to the judicial career access by the category of magistrate, thus avoiding a call disconnected from the real vacancies and needs of the public service.”
Finally, it recriminates that the draft “configures a commission of judicial ethics that contrasts with international and European standards” by providing “a broad participation of members outside the Judiciary (…) and their parliamentary election.”
Along the same lines, AFEA entrusted to the Center for Legal Studies (CEJ) “to carry out training activities for the preparation of the selective process to access the judicial or fiscal career.” For the CGPJ, the preparation of the oppositions, “to the extent that it concerns directly to the public interest,” should fall on “a fully independent authority or organ.” And the Judiciary should have “a notable role,” complete.
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