The judicial course begins with the CGPJ on the way to its fourth year of interim, 64 vacancies in the leadership of the Magistracy and tension in the Constitutional Court due to its imminent renewal
“The only democratic anomaly that exists today in Spain is the lack of renewal of the General Council of the Judiciary.” With unusual roundness, on June 15 the president of the governing body of the judges and the Supreme Court, Carlos Lesmes, pointed out the political parties for failing to fulfill their constitutional responsibility to renew the CGPJ, which is heading towards the fourth year of interim next December. An absolute record since his birth almost 42 years ago.
Lesmes was dispatched with these words after meeting with the vice president of the European Commission responsible for the rule of law, Vera Jourova, who traveled to Spain to question the politicization of the governing body of the judges and demand changes to adjust the appointment of its members to European standards (that the judges can directly decide the appointment of their peers).
No matter how much echo these statements had in the media, the reality is that they did not generate any impact on the two actors that make unblocking impossible: PSOE and PP, knowing that Justice does not give votes. Despite depending solely on them due to the parliamentary majority they hold – they account for two thirds of the seats in Congress – they still cannot agree to nominate the 20 members that make up the Council. And the worst of all is that today “all the bridges are broken”, admits a connoisseur of the negotiations.
Far from thinking that with Alberto Núñez Feijóo’s new team the obstacles that prevented the negotiation started with Pablo Casado’s PP, the positions between the two negotiators, the socialist Félix Bolaños and the popular Esteban González Pons, would disappear. they are far away and haven’t spoken since before summer.
This “serious situation” – recognized from all levels of the Judiciary – will mark the opening of the judicial year, the solemn act that the King will preside over next Wednesday and that will be attended by the robed leadership, government ministers and PP leaders . It will be a new occasion for Lesmes to remind those present of the constitutional obligation to renew the governing body of the judges, responsible, among other tasks, for making appointments, imposing sanctions or preparing reports on legislative projects.
The Supreme Court, in “difficulties”
The president of the CGPJ considers that this interim is also eroding the normal functioning of the high courts. The reason is a rule promoted by the Socialist Group and United We Can in Congress, which came into force in March 2021 and amputated the Council’s ability to make discretionary appointments in the judicial leadership while it was in office. A restriction designed to put pressure on the PP in the negotiation, but which has ended up affecting those positions of magistrates who have compulsorily retired at the age of 72 or have completed their term in these 17 months.
Thus, the number of vacancies now reaches 64 places. Of these, 29 belong to autonomous superior courts (seven of them correspond to presidencies), 14 to magistrate positions in the Supreme Court (close to 20% of the workforce), the head of the Criminal Chamber of the National Court and 20 presidencies room in the provincial hearings. On two occasions, October 2021 and last June, the Supreme Government Chamber has transmitted to Congress its “deep concern” about the “serious difficulties” that the high court is going through, which if the blockade continues in the CGPJ will dictate about a thousand sentences least every year, it is estimated.
The Minister of Justice Pilar Llop, in response to some statements by Núñez Feijoo, quantified last Tuesday the money that the lack of renewal is costing the Spanish. She stated, amid criticism of the PP leader that there is no room for “blackmail or conditions” to comply with the renewal, that spending on reinforcements in the Supreme already reaches 1.3 million euros to date. A figure that amounts to 12.5 million in the justice system as a whole.
Another element was added to the disagreement to put an end to the expiration of the Council in mid-June that has redoubled the tension between the different powers of the State. This is the renewal of a third of the magistrates of the Constitutional Court (TC) –four of its 12 members–, whose mandate expired before the summer.
The socialist counter-reform
Faced with the possibility that the composition of the court of guarantees will be perpetuated, with a clear conservative dominance, preventing the change of majorities according to the current parliamentary representation, PSOE and United We Can have promoted an express modification of the law so that the CGPJ can appoint in this case its two magistrates to the TC despite being in office. The other two designations correspond to the Government. The deadline to complete this process is Monday, September 12. But first, this Thursday, an extraordinary plenary session is convened in the Council to examine the list of candidates.
Lesmes’s attempt to seek the greatest possible consensus among the members is currently in vain. The proposal to nominate magistrates from the Supreme Court, and more specifically from the Criminal Chamber, has met with two significant refusals: that of President Manuel Marchena and that of Antonio del Moral, as confirmed by sources close to him.
The atmosphere in the Council is very vitiated by the long interim and the socialist counter-reform has accentuated the division among the members. The conservative bloc demanded a plenary session to debate the text and take it to the European institutions. However, his position of strength was undermined by the flight of like-minded members who have not wanted to join his frontline position.
Despite the fact that he does not like the reform, Lesmes has a sufficient majority to carry out the two appointments to the Constitutional Court (three fifths of the votes of the plenary session are required). If consummated, he trusts that it will serve as an impetus to put an end once and for all to the political blockade in the government of the judges.
The attorney general and the internal response
Álvaro García Ortiz was sworn in on August 2 as attorney general, replacing Dolores Delgado, who resigned for health reasons. The former chief prosecutor of the Technical Secretariat, the support body of the most responsible Public Ministry, came to office amid strong internal and external opposition and with the dilemma of following the line of his predecessor -marked by the control of the main bodies of the institution through the appointment of related prosecutors– or undertake their own policy and seek greater dialogue with their critics in the Fiscal Council. The truth is that the arrival of Garcia was not entirely smooth. Moreover, it seemed that they had taken the tuition for his work in the Technical Secretariat in these two and a half years of mandate.
The case is that seven of the 18 members of the General Council of the Judiciary considered that he did not meet the legal requirements for the position due to his lack of suitability. The representatives of the so-called conservative bloc criticized his excessive politicization and partiality in a very harsh individual vote. They pointed to his “appearance of connection” with the Government since his trajectory did not allow them to formulate “a positive management prognosis.”
The Progressive Union of Prosecutors, to which García belonged, described this vote as “disturbing” for “interfering with the autonomy” of the Public Prosecutor’s Office. The aforementioned defended himself at the end of July in his appearance in Congress. It was an angry session, with PP, Ciudadanos and Vox on fire against his appointment. “The Constitution prohibits courts of honor, but I have felt like I am in one because some people have gone looking for press clippings to say why I am not suitable, without the possibility of hearing or contrast,” he reproached.
With this tidal wave in the background, García will star alongside Carlos Lesmes in the opening of the judicial year on Wednesday in the Supreme Court. His speech before the King will be closely followed. But first, tomorrow, Monday, he will take possession of his position in the high court with the presence of the judicial and prosecutorial leadership, although we will see if they are absent. As an appetizer, one of the new members of the Fiscal Council, Salvador Viada, sent a letter to the head of the Fiscal Inspection, María Antonia Sanz, with the aim that this advisory body pronounce on the powers attributed to the Technical Secretariat to intervene in specific matters. Viada denounced Garcia’s “troubling habits” when he took office.
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