The Council of Europe insists that Spain must reform the election system of the General Council of the Judiciary. The body – a supranational entity of 47 non-EU states -, through the evaluation of the Group of States against Corruption (GRECO), affirms that “a critical issue is the selection system of the General Council of the Judiciary (CGPJ ) and their 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. ”
The Council of Europe insists on ending the election of the CGPJ by Parliament: “It is not perceived as impartial or independent”
GRECO has been recommending since 2013 that an evaluation be made of the legislative framework that governs the CGPJ and its effects on the real and perceived independence of this body from any undue influence. And in its report released this Thursday, the institution “regrets that no tangible result has been achieved in relation to the composition of the CGPJ and, in particular, its selection method, that is, the core of the recommendation.” In this sense, GRECO points out that it has once again “reiterated the need to eliminate the intervention of politicians in the selection of the judicial members of the CGPJ,” for which it concluded that the recommendation had not been complied with.
The Council of Europe recognizes that the Government defends “the legitimacy and democratic character of the selection method”, while the appointment of the members of the CGPJ – the 12 judges and magistrates and the 8 renowned jurists – requires a broad consensus Parliament through a qualified majority of 3/5; and that the candidates are preselected by the judges themselves through a democratic system, and the resulting list of candidates is presented to Parliament, which appoints the members.
But GRECO points out that “the information provided does not add anything new to what had already been analyzed in 2013. Today the situation is exactly the same, and the concerns continue the same, if not more, than before.”
At that time, the Council of Europe stressed that “one of the most notable objectives is to safeguard the independence of the judiciary, both in appearance and in practice” and that “the result in Spain had been the opposite.” Thus, “GRECO indicated the applicable regulations of the Council of Europe regarding the election of members of judicial extraction of the Judicial Councils: when there is a mixed composition, for the selection of judge members, it is advisable 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 2013 evaluation report, and the series of reports on compliance that have subsequently been submitted, criticism of the system continues at the national level and has also transcended international forums,” says GRECO: “Every time a CGPJ renewal has been carried out, misgivings have been expressed about political negotiation and the appointment of key judicial posts.”
The body also recalls that, due to the blockage of more than 1,000 days in the appointment of the CGPJ, the PSOE and United We Can decided to present a bill to unblock the system by resorting to a 3/5 qualified majority vote in the Cortes General, but if the threshold was not reached by lowering the threshold in a second absolute majority vote: “GRECO, together with other key international actors in this area, including the European Commission and the European Association of Judges, expressed concern about the proposal aforementioned. The processing of the proposal has been suspended since October 22, 2020. ”
Subsequently, in December 2020, a new proposal was presented to prevent the CGPJ from making discretionary appointments, that is, the appointment of the higher categories of the judiciary, when it was in office. “This proposal has also been criticized by the judges, and by the CGPJ itself”; the report continues.
“In this context,” continues the Council of Europe body, “GRECO can only regret the lack of tangible positive progress in this area. GRECO urges the authorities to implement the recommendation without delay, and that in doing so the the judiciary and have a voice in key decisions regarding its operation and priorities. The necessary discussions in this regard with other branches of the State should be held in a climate of mutual respect and take into account the preservation of 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 taken by the latter. Even if the procedures for the appointment of higher positions in the judiciary have been articulated and improved over time, a shadow of doubt about their impartiality and objectivity persists in the eyes of the citizens. Given the wide margin of discretion that the CGPJ has for the appointment of the highest positions in the judiciary, the question of its composition seems of primary importance. ”
“Reconsider the selection method of the Attorney General’s Office”
GRECO recommended in the past “to reconsider the selection method and mandate of the Attorney General; establish clear legal requirements and procedures to increase the transparency of communication between the Attorney General and the Government; and” study other ways to provide greater autonomy to the management of the means of the Public Prosecutor’s Office “.
And, now, the institution affirms that “it can only reiterate the need for greater reflection on the additional guarantees that can be introduced in the Spanish Public Prosecutor’s Office to protect it from undue interference.”
Thus, GRECO “encourages the authorities to think in depth in this regard, among other things, bearing in mind the considerations already mentioned in relation to the revolving doors issue, in particular with regard to political activity.”
In addition, the report insists that “since the relationship between the Attorney General and the Executive is an issue that continues to be the subject of public criticism in Spain regarding the perception of its independence, the transparency of communication between the Attorney General and the Government is key “.
In this sense, “the relationship between the Attorney General’s Office and the Executive is an issue that continues to be the subject of public criticism regarding its perception of independence” and “more 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 for prosecutors has been promulgated, 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. ”