New blow from the Group of States against Corruption (GRECO) to Spain for not having yet reformed the law to eliminate all political intervention in the election of the 12 members of the General Council of the Judiciary who must be judges.
The Council of Europe body that assesses the capacity of member states in the fight against corruption this Thursday released its second compliance report in which it examines whether the recommendations made seven years ago to prevent corruption in the scope of Parliament, the Judiciary and the Prosecutor’s Office.
In this new assessment, the GRECO confirms the unmitigated non-compliance with the recommendation regarding the system of election of judicial members of the governing body of the judges. It is the only one of the 11 observations that is still not being complied with.
The report coincides with the existing confrontation between the Government of Pedro Sánchez and the PP on the renewal of the General Council of the Judiciary, which has been in office for an extension since December 2018. Casado’s party demands that, in parallel, the processing of a reform of the Organic Law of the Judiciary so that the 12 judicial members of the CGPJ are elected by their peers, as recommended by all European institutions, not just GRECO.
The report does not allude to the need to carry out the renewal of the CGPJ. On the other hand, it does abound in non-compliance with the recommendation regarding the “need to eliminate the intervention of politicians in the selection of the judicial members of the CGPJ.”
‘No’ to the current system
To the GREEK He is not convinced by the explanations of the Ministry of Justice, which indicated that 20 members of the CGPJ are elected by a qualified majority of three fifths of the Congress and the Senate. This, according to the Government, “guarantees the pluralism of the election and avoids risks of corporatism.”
The Spanish authorities also explained to GRECO that, although the judges do not directly elect the judicial members of the Council, the candidates for members are pre-selected by their own career “through a democratic system” (any active judge can present their candidacy if has the support of 25 judges or a judicial association) and the resulting list of candidates is presented to Parliament, which appoints the 12 members.
They also alleged that “to fully dispel any doubt of politicization”, the mandate of the CGPJ is five years, so it does not coincide with the legislature (four years).
Finally, the Ministry pointed out that the LOPJ has been reformed to limit its powers when it is in an extension of its mandate, with the aim of “reducing the incentives to maintain a blockade that would affect the perception of the independence of the CGPJ.”
GRECO states that “the information provided by the authorities does not add anything new” to what had already been analyzed.
“Today the situation is exactly the same, and the concerns expressed by GRECO in light of this they continue the same, if not more, than before, “he adds.
He recalls that in recent years he has stressed that one of the objectives of a judicial council is to safeguard the independence of the judiciary “both in appearance and in practice.”
The result of the election system of the Spanish CGPJ “has been the opposite, as evidenced by the repeated public concern in this area.”
GRECO has also recalled in previous opinions the regulations of the Council of Europe regarding the election of the judicial members of the Councils: when there is a mixed composition, it is advisable “that the judicial members are elected by their peers (following methods that guarantee representation broader 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“.
The Group of States against Corruption notes that, seven years after its first evaluation of Spain, “Criticisms of the system continue at the national level and have also transpired to international forums”.
“Every time a CGPJ renewal has been carried out, they have expressed misgivings about political negotiation and for the appointment of key judicial posts “, adds the new report, which refers in all criticism to the attempt of the PSOE and United We Can to lower the parliamentary majority necessary to elect the members.
“GRECO (along with other key international players in this area, including the European Commission and the European Association of Judges) expressed concern” about this reform, now on hold.
GRECO “can only regret the lack of a breakthrough tangible positive in this area “and” urges the authorities to apply without delay the recommendation “on changing the system for electing the judicial members of the CGPJ, he says.
“By doing so,” he adds, “it is extremely important that the Judiciary be consulted and have a say 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 especially the preservation of the independence and impartiality of the Judiciary. “
In another section of the report, GRECO assesses the “progress” recorded in relation to the appointments of Supreme Court judges and presidents of courts and hearings.
Although it recognizes the greater transparency with which the CGPJ makes these appointments, it considers that “additional measures can be adopted” to “fully” comply with the objective of the recommendation referring to the need to guarantee that these appointments “do not put in doubt its independence, impartiality. and transparency “.
In this regard, it considers that “the time has come to streamline the requirements and procedures applicable in this area through new legislative and regulatory measures.”
It raises, in particular, the reform of Regulation 1/2010, referring to the provision of positions for discretionary appointment. For example, to eliminate the possibility that the members introduce as candidates applicants who are not preselected by the Qualification Commission after the interviews.
“This type of second chance for some candidates to be appointed represents a deviation from the standard selection process that is difficult to reconcile with the constitutional principle of equality,” estimates GRECO.
She also believes that more attention can be paid to gender equality issues and the specific measures needed for the appointment number of women in the highest positions in Spanish courts, “although it appears that some limited progress has been made in recent years,” he says.
“Unfortunately, the criticisms about the perception of politicization of the CGPJ have a negative impact on the appointment decisions adopted by the latter,” he concludes. “Even if the procedures for the appointment of senior positions in the Judiciary have been articulated and improved over time, 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 higher positions in the Judiciary, the question of its composition seems of primary importance. This is another reason that demonstrates the critical importance of properly implementing the recommendation “on the reform of the system of election of judicial members, he insists.
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