The Council of Europe considers the system of election of the Judiciary “a critical issue” due to its “perception of politicization”


Prevention of corruption with respect to judges.

GRECO recommended that an evaluation be carried out of the legislative framework that governs the General Council of the Judicial Power (CGPJ) and of its effects on the real and perceived independence of this body from any undue influence, with a view to correcting any deficiencies that are detected.

GRECO regretted that no tangible result had been achieved regarding the composition of the CGPJ and, in particular, its selection method, that is, the core of the recommendation. GRECO reiterated the need to eliminate the intervention of politicians in the selection of judicial members of the CGPJ. Consequently, it concluded that the recommendation had not been met.

The Spanish authorities reiterate their position regarding the legitimacy and democratic nature of the selection method of the CGPJ: (i) the selection of judicial (12) and non-judicial (8) members of the CGPJ requires a broad consensus of the Parliament to through a 3/5 qualified majority (which, on the one hand, guarantees the pluralism of the election and, on the other, avoids risks of corporatism); ii) in any case, the candidates for judicial members are shortlisted by the judges themselves through a democratic system (any judge in service can present his candidacy if he has the support of 25 judges or a judicial association) and the list of The resulting candidates are presented to Parliament, which appoints the 12 members; and (iii) to fully dispel any doubt of politicization, the term of the selected members is five years and, therefore, does not coincide with the ordinary legislative term (four years).

GRECO points out that the information provided by the authorities does not add anything new to what had already been analyzed in the evaluation report of the Fourth Round of 2013. Today, the situation is exactly the same, and the concerns expressed by GRECO in light of it they continue the same, if not more, than before.

At the time, GRECO stressed that one of the most notable objectives of a judicial council, whenever it exists, is to safeguard the independence of the judiciary, both in appearance and in practice. He also pointed out that the result in Spain had been the opposite, as evidenced by the repeated public concern in this area. GRECO indicated the applicable regulations of the Council of Europe regarding the election of judicial members of judicial councils: when there is a mixed composition of judicial councils, for the selection of judicial members, it is recommended that they be elected by their peers ( following methods that guarantee the broadest representation of the judiciary at all levels) and that political authorities, such as Parliament or the executive branch, do not participate in any stage of the selection process.

Seven years after the approval of the evaluation report of the Fourth Round (and of the series of reports on compliance that have subsequently been presented), criticism of the system continues at the national level and has also reached international forums. Every time the CGPJ has been renewed, misgivings have been expressed about political negotiation and the appointment of key judicial posts. More recently, a blockade (more than two years) in the appointment of the CGPJ, led a series of parliamentary groups to present a bill to unblock the system by resorting to (1) a qualified majority vote of 3/5 in the Cortes Generales, but if it is not reached (2) by lowering the threshold in a second vote by absolute majority. GRECO (along with other key international players in this area, including the European Commission and the European Association of Judges) expressed concern about the aforementioned proposal. The processing of the proposal has been suspended since October 22, 2020.

Subsequently, in December 2020 a new proposal, already mentioned, was presented to prevent the CGPJ from making discretionary appointments (that is, the appointment of the higher categories of the judiciary – see also infra in recommendation vi) when it was in office . This proposal has also been criticized by the judges, and by the CGPJ itself.

In this context, GRECO can only regret the lack of tangible positive progress in this area. GRECO urges the authorities to implement recommendation v. In doing so, it is extremely important that the judiciary is consulted and has a voice in key decisions regarding its operation and priorities. The necessary discussions in this regard with other branches of the State must be held in a climate of mutual respect and take into account in particular the preservation of the independence and impartiality of the judiciary.

GRECO points out that, unfortunately, criticisms of the perception of politicization of the CGPJ have a negative impact on the appointment decisions adopted by the latter. Even if the procedures for the appointment of senior positions in the judiciary have been articulated and improved over time, as described above, a shadow of doubt remains in the eyes of citizens about their impartiality and objectivity. Given the wide margin of discretion available to the CGPJ for the appointment of senior positions in the judiciary, the question of its composition seems of primary importance.

GRECO recommended: i) reconsider the selection method and mandate of the Attorney General; (ii) Establish clear legal requirements and procedures to increase the transparency of communication between the Attorney General and the Government; (iii) Study other ways to give greater autonomy to the media management of the Public Prosecutor’s Office.

GRECO can only reiterate the need for further reflection on the additional guarantees that can be introduced in the Spanish Public Prosecutor’s Office to protect it from undue interference. GRECO encourages the authorities to think in depth in this regard, inter alia, bearing in mind the considerations already outlined in the Fourth Round Evaluation Report in relation to the revolving door issue, in particular as regards to political activity (see paragraph 153, in relation to paragraph 102, of the aforementioned report). It appears that the Attorney General intends to make further progress in the three areas covered by recommendation ix through amendments to the Statute of the Public Prosecutor’s Office. This project must be carried out effectively, although there are plans to reform the Statute of the Public Prosecutor’s Office, the work has not yet begun.

With particular reference to the second section of the recommendation, it is recalled that the law provides for the possibility of the Government being informed about specific cases that are being carried out (Article 9 of Law 50/1981). Although the law determines that all communication between the executive branch and the Public Prosecutor’s Office must take place between the Minister of Justice and the Attorney General (Article 8.2 Law 50/1981), it does not require that such communication be made public or recorded in writing. . Given that the relationship between the Attorney General and the Executive is an issue that continues to be the subject of public criticism in Spain, in terms of the perception of its independence (see also paragraph 126, Report of the Fourth Evaluation Round on Spain), Transparency of communication between the Attorney General and the Government is key.

GRECO recalls that the disciplinary regime for prosecutors requires a thorough review, as the Spanish authorities also recognized during the evaluation / compliance process. Greco regrets that the plans to reform the regulatory framework of the Public Prosecutor’s Office, although progressing, have not yet yielded tangible results.

Furthermore, a critical issue is the selection system of the General Council of the Judiciary (CGPJ) and its perception of politicization. This is cause for concern, as the CGPJ is responsible for some crucial decisions in the judiciary, including the appointment of judges to higher positions and disciplinary matters. Likewise, the relationship between the Attorney General and the Executive is an issue that continues to be the subject of public criticism (with regard to their perception of independence), further efforts are still needed to increase autonomy and transparency in this regard. This is especially important in the context of the proposed reform of the Criminal Procedure Law. A Code of Ethics has been promulgated for prosecutors, which has been added to the advice and awareness channels, which constitutes a positive development. However, the reform of the disciplinary regime for prosecutors is still pending adoption.

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