In the end there was agreement. Five and a half years after the deadline required by the Constitution, but there was an agreement. The PP and the PSOE agreed on the names of the next 20 members of the General Council of the Judiciary (CGPJ). But there are still open questions. The members, according to the signed document, will have to prepare a proposal to reform the system of election of members. But what does this mean exactly? Do they necessarily have to propose a change? Concrete and in detail? Where? And the answers, again, are not clear.
What exactly does the document say? That in the next six months the new Council will do several things. Firstly, it will prepare a report to examine “the European systems for electing members of the Judicial Councils analogous to the Spanish one.” This section does not raise doubts. But, then it will have to present “a proposal to reform the system of election of the members designated among judges and magistrates, approved by a majority of three fifths of its members that guarantees their independence and that, with the direct participation of judges and magistrates who determined, can be positively evaluated by the European Commission’s Rule of Law report, in which a CGPJ is established in accordance with the best European standards.”
From here on, the interpretations of the two political parties behind the agreement differ. “The members will decide what they consider and, above all, what they agree to by a three-fifths majority, based on what has been asked of them,” says Félix Bolaños, Minister of the Presidency, Justice and Relations with the Cortes and responsible for the negotiation by the PSOE, which considers that the mandate does not necessarily imply a specific model and that this agreement meets the recommendations of the European Commission. The leader of the PP, Alberto Nuñez Feijóo, for his part, said this week that the agreed text is clear, that the formula that Europe demands implies that the judges elect the vocal judges and that this is the way to follow.
Meanwhile, the proposed members are being extremely cautious at this time, because they have not even taken up their posts yet. However, when contacted by this newspaper, some of them point out that the first thing they will have to do will be to carefully study the scope of the task they are being given. Determine how far the obligation to propose a reform goes. And then, start working. Because there may be differing opinions not only regarding the model to follow, but also regarding what they should decide on.
One of the future members considers, for example, that it should not be forgotten that the General Council of the Judiciary “is neither a legislative nor a pre-legislative body” and that it is not there to decide the content of a law from the start. His opinion is that what should be done is a good study of comparative law analyzing the pros and cons of each election system so that the legislative power can then decide what it considers appropriate. He believes that the Council’s document should be technical and not political.
And he is of the same opinion regarding the analysis that should be carried out on what the deficiencies of the system have been – especially, allowing one of the two main parties to prevent the renewal of the body for years, as has just happened – and proposing possible solutions. Again, he believes that they should not clearly opt for anything because the Council “cannot be a legislative counter-power.”
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But the letter of the agreement clearly speaks of a “reform proposal”, of a “direct participation of judges and magistrates” in the election of the members of the CGPJ and of a model that is positively evaluated by the Rule of Law report of the European Comission. Indeed, as Félix Bolaños points out, the text does not specify and leaves room for the decision of the new members. But what does this explicit allusion to the direct participation of the judges and the positive evaluation of the European Commission mean?
Regarding the first point, we should remember how the vowels are now named. There are 20. Eight must be jurists of recognized competence and, according to the Constitution, they must be appointed by Congress and the Senate. There is no debate there. Where there is one is in the other twelve, in which judges and magistrates have to be appointed. Constitutionally, the how is not determined, but since 1985 they have been appointed by the Congress and the Senate by a qualified majority, which implies that the names are agreed upon by the two major parties. The “reform proposal” of the new General Council of the Judiciary will focus on them.
Judges are already involved in the election, but is it enough?
Now the judges are involved in the appointment of these judicial members. An election is called for all those who have the support of at least 25 judges or a judicial association (each one can present a maximum of 12) to stand. The call is public. And, based on this list, the parliamentary groups negotiate the final names.
Does the current system guarantee the “direct participation” of judges in the election? As with almost everything in law, one can argue that it does… but also that it does not, that it is an indirect participation that must be expanded. In any case, if it were to be increased, there would be multiple options. One is that the judges directly elect the members without any participation from Parliament. But another, mixed, option could be that a direct and prior vote be held among the judges that leads to a much smaller list than the current one – of 20 names, for example – on which the legislative chambers then decide. And there could be other intermediate possibilities.
On the other hand, there is the issue of “the positive evaluation of the European Commission”, which in its latest reports on the rule of law in Spain has requested that the appointment of the members chosen from among judges and magistrates be adapted to “European standards”. . This is the key question: what should Spain do – if anything – so that the European Union is satisfied with the election and operation of our General Council of the Judiciary?
What does the EU really demand?
Paloma Biglino is a professor of Constitutional Law at the University of Valladolid and has investigated in depth what the EU says on this matter, and why it says it; and if there is any community law that requires judges to elect judicial members, but there is none. “The only thing I have found is a Recommendation from the Committee of Ministers of the Council of Europe [que es una organización supranacional que no es UE] “The 2010 Constitutional Court recommends that judges who are members of the judiciary councils be elected by their peers.” GRECO (Group of States against Corruption) has also followed this doctrine and recommended that Spain should elect the judicial members of the CGPJ by judges. The European Court of Human Rights has done the same, which in a more mild way also advocates that, when there are judiciary councils, at least half of them should be judges appointed by judges.”
But the Council of Europe and the ECHR are not the European Union. “Despite this, and despite the fact that there is no Community standard, I believe that at this point this is a well-established criterion within the EU,” argues Biglino. “And this is reflected quite explicitly in the actions and statements of the European Commission.”
Biglino explains that, in his opinion, increasing the guarantees of independence of the judiciary is a firm position that has been reached for multiple reasons, and that has to do not only with Spain and its judicial system, but, above all, with the current concerns of the EU. “Before, there were two points of view: those who believed that the government of the judges has to be a totally independent body and those who understood that it is a political body that must be linked to the legislative power and to national sovereignty,” he argues. “But those were different times. Right now, with the threat of populism and the risks to the rule of law in countries such as Hungary or Poland, this debate no longer exists in the EU: they want a judiciary that is absolutely independent of the other two powers, without the slightest risk of politicizing the election of magistrates or judicial leaders. And that is above all.” Any model that does not strengthen the independence of the General Council of the Judiciary and that could give the impression that political parties intervene and want to control those who later elect the judicial leadership will be reproached by Europe.
This does not mean, in his view, that there is no room for agreeing on mixed formulas. “I believe that both the members and the parliamentary groups have a range of negotiation options. Because the key is not so much who elects, but rather the guarantees of independence of the parties; that there is no doubt that the CGPJ is an organ independent of political power. This is what Europe seeks and wants. And this is what any reform should guarantee.”
The models in Europe are very diverse, both in the powers of the councils of the judiciary and in the ways of electing their members. In some, such as Italy, the President of the Republic or the Attorney General of the State participate, but they have members (16 out of 27) directly elected by the judges. Portugal and Belgium also allow the judges to elect a significant part of their councils of the judiciary. But not all EU countries have bodies with analogous functions. Any serious study of comparative law requires a great deal of detail and precludes making broad comparisons with Spain. In the end, what matters is that each country guarantees, in whatever way, not only the independence of the judges, but also their appearance of independence.
For now, the first step is in the hands of the future members of the General Council of the Judiciary, who agree that before debating they must carefully study all the options that can be put on the table. And they must try to reach a consensus, because the decision must be reached by agreement of three-fifths of its members. “The members decide,” says Bolaños. “It is in their hands.” “Let’s see what happens when they start working and where it leads them,” says Borja Sémper, national spokesperson for the PP. “This has never been done before. Let’s give them space to reach a consensus taking into account the orientation of the EU.”
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