Almost two weeks after the resignation of the chairman, there is still no agreement on the renewal of the Spanish General Council of the Judiciary (CGPJ). Carlos Lesmes resigned earlier in October in protest against the political deadlock that has paralyzed appointments to fill this judicial body for four years. Lesmes took his decision out “of respect” for the dignity of Spain’s legal institutions and judges. These would “rightly expect” that the responsible politicians would not remain “indifferent” in a situation that seriously compromises the functioning of the entire judiciary.

The 20-member General Council of the Judiciary (CGPJ), which is responsible for appointing judges and ensuring the judiciary’s independence, has broken several records due to the impossibility of reaching a political agreement on its renewal: In December, its members will have been in office for nine years, the last four on a provisional basis. The council already has two vacancies (one due to retirement and the other due to death), and there are dozens of pending appointments in other judicial bodies. 

The council’s mandate expired in December 2018, and it has since been operating on an interim basis because the ruling Socialists and the conservative opposition Popular Party (PP) can’t agree on its makeup.

The deadlock has caused increasing problems for the Spanish court system.

Brussels has sounded a wake-up call: It is calling for an urgent renewal of the council and a legal change in the way its members are elected. The European Commissioner for Justice, Didier Reynders, pointed to the rotating presidency of the EU, which will be held by Spain in the second half of 2023, as a further incentive to resolve the problem. The left-wing government and the main conservative opposition party resumed negotiations a few days ago with the utmost secrecy – and an apparent willingness on both sides to reach an agreement.

This unprecedented situation has stood out as a negative note in the reports on the rule of law that the European Commission has recently compiled on Spain, and has even led to a visit to the country by Justice Commissioner Didier Reynders, who tried to unblock the situation. He left Madrid at the end of September, confident that there was a “real commitment” to renew the General Council of the Judiciary (CGPJ) and then reform it, as requested by Brussels. The Belgian liberal politician had met with all interested parties: government, opposition and magistrates.

Shortly after Commissioner Reynders’ visit, and in view of the continuing lack of progress, Carlos Lesmes made good on his threat to resign as president of the CGPJ on October 9, in order to force the renewal of this body. This led to an unprecedented institutional crisis in the Spanish judiciary, with a council unable to function and fractured between progressives and conservatives fighting an open battle for its presidency. In addition, the Constitutional Court is without renewal, as the deadlock in the CGPJ has also prevented the filling of its vacancies. The same is happening in the Supreme Court, the one that dictates jurisprudence.

The earthquake of Lesmes’ resignation at least served to bring the head of government, Pedro Sánchez, and Alberto Feijóo, the leader of the main opposition party, the conservative PP, together on the following day, October 10. They wanted to give themselves what they described as a “last chance” to unblock the judicial governing body.

Although the pact has not yet come to fruition, both sides are sending out messages that there is a good chance that it will be possible and that it will not take too long.

What does the European Commission say about the rule of law in Spain?

The European Commission is calling on Spain to urgently end the deadlock in the renewal of the General Council of the Judiciary (CGPJ), the governing body of Spanish judges. In its latest report on the rule of law in the EU, published last July, the EU executive calls on Spain to proceed with the renewal of the CGPJ “as a matter of priority” and to initiate, “immediately afterwards”, a process with a view to changing the method of electing its members, “taking into account European standards”; in other words, establishing that at least half of the council’s members should be “judges elected by their peers.” In Spain, the 20 members of the body are elected by parliament, although the 12 members of judicial extraction come from a list of names previously provided by judges’ associations.

The report came at a critical moment in the negotiations between the PSOE and the PP, after the failure of the umpteenth attempt by both parties to agree on the renewal of the judiciary, this time with Alberto Núñez Feijóo at the head of the main opposition party. The resistance of the Popular Party to sit down and reach an agreement caused the CGPJ’s mandate to expire such a long time, something unprecedented.

“The delay in renewing the CGPJ remains a cause for concern,” says the 30-page EU report on Spain. “The Council of the Judiciary has been exercising its functions on an interim basis since December 2018.” This gave rise to fears that it could be perceived as “prone to politicization.” According to the document, “there have been repeated calls for its urgent renewal and the situation has been described by key stakeholders as unsustainable and anomalous.”

However, the Commission acknowledged in its July report that there had been some progress in the preceding months in Spain. “I want to be fair, I have seen progress,” said Věra Jourová, European Commissioner for Values and Transparency, one of the authors of the report. Jourová, who also serves as vice-president of the European Commission, regarded it as a step forward that the government of Pedro Sánchez withdrew the bill that sought to reduce the majority needed to elect members of the CGPJ last year. The adoption of this bill would have meant that the votes of the PP would no longer have been essential. If this law had been approved, Jourová said, Spain “would not have complied with the rules on the impartial creation of a general judicial council.” Its withdrawal “was a positive thing.”

Jourová warned that the persistence of immobility “is going to be a very serious problem for the Spanish judiciary, because it is blocking operations and appointments of judges”, the effects of which were starting to become apparent “in the practical workings of judicial bodies.” Jourová visited Spain shortly before the publication of the report and met with party members. She returned to Brussels with the impression that there would be no short-term solution.

What is the General Council of the Judiciary and what are its functions?

The CGPJ is a constitutional, collegiate, autonomous body, made up of judges and other renowned judicial experts, which exercises the functions of a government of the judiciary with the aim of guaranteeing the independence of judges, who acquire their posts through competitive examinations.

It is the council that chooses certain judges, who are appointed at its discretion. This is its main function. The CGPJ appoints all the judges of the Supreme Court, which establishes jurisprudence; two judges of the Constitutional Court; and the presidents of the High Courts of Justice, the Provincial Courts and other governmental chambers. As the CGPJ was not renewed when it was due, in November 2018, many of these judges are in office on an interim basis.

How are the members of the Council of the Judiciary elected?

The members of the CGPJ should be appointed every five years, as established in the constitution. In some countries, it is the judges themselves who choose their top officials, in others, as is the case in Spain, they are chosen by parliament.

The law establishes that the council is made up of twenty members – twelve judges and eight jurists – and all are elected by a three-fifths majority of parliament, ten by congress and ten by the senate, which requires the agreement of the PSOE and the PP.

Why has the CGPJ still not been renewed?

In practice, both the list of magistrates and the list of jurists are previously agreed by the political groups according to their parliamentary representation. Hence, the lack of understanding between PSOE and PP, the two majority parties, has prevented the CGPJ from being renewed since 2018, when its five-year mandate was due to expire.

Therefore, the current CGPJ is a reflection of the parliamentary majorities that existed in Spain nine years ago, the ones that came out of the ballot box in the first term of office of former conservative Prime Minister Mariano Rajoy. At that time, nine of the members of the CGPJ were proposed by the PP and six by the PSOE. Izquierda Unida, the Catalan CiU and the Basque PNV proposed one name each.

The current composition of parliament, from which the left-wing coalition that forms Pedro Sánchez’s present government emerged, is very different, but the negotiations between the PP and the PSOE to transfer these majority ratios to the CGPJ have failed so far, mainly due to the refusal of the conservatives.

For its part, Sánchez’s government rejects the idea that the members of the council should be elected directly by the magistrates without the intervention of parliament, as requested by the PP, because if they elected themselves, they would be the only state power in whose election and control no other power would be involved.

Serious effects of blockade and pending decisions

This blockage, as warned at the opening ceremony of this Judicial Year, is the reason why in the coming months there will be twenty vacancies on the Supreme Court – 25% of its staff – and 49 of the 116 presidencies of courts in Spain are not held by an incumbent.

A year ago, a technical report of this court pointed out that it was exercising its functions with 14% fewer judges than required by law, and that this could result in the court issuing a thousand fewer decisions a year, to the detriment of justice.

The filling of the pending vacancies could shift existing majorities, especially among the magistrates of the Criminal Chamber, who are the ones who judge people that fall under a special jurisdiction (Spanish: aforado). They are the only judges who can open a criminal investigation against a member of parliament, a minister or a senator. They also have the last word on the most important criminal sentences, such as major corruption cases or those of the Catalan pro-independence leaders.

The existing conservative majority in the Supreme Court will change when the pending renewal is completed. A group of conservative members of the current CGPJ is insistently blocking this. This was the ultimate reason for Lesmes’ resignation, given that it is a breach of the law by the judges’ governing body.

Among the pending decisions of the Supreme Court is the one regarding the former Catalan president Carles Puigdemont.

This article is published Fridays. The content is based on news by agencies participating in the enr.