Two years ago the first report of the European Commission on the Rule of Law was published in the 27. And 24 months later, the evaluation of Spain abounds in what was already collected on both occasions: the lack of renewal of the General Council of the Judiciary , in office due to the blockade of the PP, is a problem. Indeed, Alberto Núñez Feijóo’s party has spent years deploying a battery of changing justifications to avoid renewing the governing body of the judges, which has continued to make appointments with the majority that came out of the 2011 elections won by Mariano Rajoy.
“The delay in the renewal of the Council for the Judiciary remains a cause for concern,” says Brussels: “The Council has been exercising its functions on an interim basis since December 2018. This raises concerns that it could be perceived as vulnerable to politicization, as it has already been mentioned in the 2020 and 2021 Rule of Law Reports. There have been repeated calls to proceed with its urgent renewal and stakeholders have described the situation as unsustainable and anomalous. After the reform of March 2021 by which the interim regime of the General Council of the Judiciary is defined, the acting Council cannot proceed with the appointment of senior judicial positions.
“On June 24, 2022”, remembers Brussels, “the Government presented a reform that allows the Council of the Judiciary to proceed with the appointment of the members of the Constitutional Court. The Technical Cabinet of the Supreme Court published on October 18, 2021 a report on the consequences of the lack of renewal of the Council of the Judicial Power in the appointment of the magistrates of the Supreme Court. The report concludes that the Supreme Court is exercising its functions with 14% fewer judges than required by law, and this could result in the Supreme Court issuing 1,000 fewer decisions per year, which would undermine the efficiency of justice.
Thus, Brussels launches a series of recommendations to Spain in relation to the health of the rule of law: “Strengthen the statute of the Attorney General’s Office, in particular with regard to the separation of the mandates between the prosecution itself and that of the Government. , taking into account the European standards on the independence and autonomy of the prosecution”; “proceed with the renewal of the Council of the Judiciary as a priority and initiate, immediately after the renewal, a process with a view to adapting the appointment of its members of judicial extraction, taking into account European standards”; “continue efforts to introduce lobbying legislation, including the establishment of a mandatory public registry of lobbyists”; “address challenges related to the length of investigations and prosecutions to increase efficiency in high-level corruption cases”; “guarantee adequate resources for the national audiovisual media regulatory authority to strengthen its operations, taking into account European standards on the independence of media regulators, in particular with regard to the adequacy of resources”; and “continue working to strengthen access to information, in particular through the reform of the Official Secrets Law.”
In relation to the reform of the election system of the CGOJ, the European Commission refers to the evaluation of the Group of States against Corruption (GRECO), dependent on the international organization outside the EU Council of Europe, which requests that the 12 members of judicial extraction of the 20 that make up the CGPJ are chosen by the judges, not by the Congress of Deputies as until now.
The Council of Europe recognizes that the Government defends “the legitimacy and democratic nature of the selection method”, while the appointment of the members of the CGPJ -the 12 judges and magistrates and the 8 jurists of recognized prestige- requires a broad consensus of the Parliament through a qualified majority of 3/5; and that the candidates are pre-selected 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 “the applicable norms 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 the judge 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 at any stage of the selection process”.
The report of the European Commission published this Wednesday recognizes that Spain has adopted “legal amendments with the aim of increasing the transparency of relations between the Government and the Attorney General, while concerns persist about the coincidence in the mandate of the Attorney General and the Government”.
The Community Executive recalls that the Judicial Ethics Commission “issued an opinion on the ethical duties of judges who return to their judicial functions after having held political office.” And Brussels points out that “progress continues in terms of the quality of the justice system, with facts such as the implementation of measures that facilitate access to justice for people with disabilities”; with “the reform of the Law of Criminal Procedure and the law of the right of defense”; as well as “the digitization of justice”.
In this sense, the European Commission recalls that “efforts continue to address the challenges related to the resources of the judiciary”, and points out that “the duration of the procedures continues to be a challenge, although work is being done on bills aimed at improve the efficiency of the justice system.