The General Council of the Judiciary (CGPJ) is in office for a thousand days this Tuesday, August 31. The temporary status of the governing body of judges dates back to December 2018, when the five-year mandate enshrined in the Constitution expired. The blockade has been maintained since then due to the electoral repetition of 2019 and the lack of political agreement for the renewal of its twenty members, which has to be agreed by a reinforced majority of three-fifths of the members of the Cortes Generales.
The Constitutional censorship of the Government strengthens the PP in its blockade of the institutions
The Popular Party, which left Moncloa in June 2018 after Pedro Sánchez’s motion of censure, has resisted during all this time to lose its power in one of the key institutions of the State, which decides which judges are promoted to the highest positions in the judiciary. The current governing body of the judges has eleven members elected at the proposal of the PP, seven from the PSOE, one from the IU and another from the PNV. At the head is Carlos Lesmes, who was a senior position in the governments of José María Aznar. Its composition of conservative majority – elected when Mariano Rajoy ruled with an absolute majority – has nothing to do with the parliamentary reality now drawn by the ballot box. In fact, four general elections have been held since he was elected.
But in recent months, the conservatives have deployed a whole battery of changing conditions to agree to the renewal, ranging from vetoing the presence of United We Can in the negotiations to re-typifying the crime of referendum or reforming the euro order. They have also used as an excuse the Yes of EH Bildu to the Budgets of 2021 or the position of the minority partner of the Government against the monarchy. More recently they have demanded a change in the system of election of the members so that the twelve of judicial extraction are selected directly by their companions —as was the case until 1985—, a reform that the PP did not promote during its two absolute majorities. Nowadays the judges screen the names, and then the parties elect, as long as they reach that majority in Congress.
Last February, the negotiation that has been closest to prospering since in 2018 a message from his then spokesman in the Senate, Juan Ignacio Cosidó, boasted of controlling “from behind” (with the appointment of Manuel Marchena) the more delicate chamber of the Supreme Court frustrated the renovation. Marchena ended up resigning and the negotiation returned to the starting box.
On this last occasion, the talks broke down due to the refusal of the Casado party to accept the proposals of United We Can to the CGPJ: Victoria Rosell, current government delegate against sexist violence, and the magistrate Ricardo de Prada, who was already proposed by the PSOE and to whom the passages of the judgment of the Gürtel case that they considered box B of the PP as accredited and that they caused the motion of censure against Mariano Rajoy.
Since the restoration of democracy, the three blockades of the PP in the renewal of the CGPJ —between 1995 and 1996, between 2006 and 2008 and the current one— have served for the right to decide most of the appointments of judges in the Supreme Court. Thanks to this slow process in which José María Aznar and Mariano Rajoy participated in their day, and which Casado himself has starred in until now, the situation has arisen that the Criminal Chamber – the one that ultimately examines the majority of the criminal cases that are tried in Spain and through which corruption cases pass – it will go from being formed in 1995 by seven progressive and six conservative judges to that in 2021 there will be twelve conservatives compared to four progressives.
Among the members consulted by elDiario.es are those who speak of “resignation” in the absence of signs of a possible agreement and those who say “expectant” before the possibility that the political groups reach an agreement at any time. Of course, what everyone seems to be clear about is that if there is a replacement it will come after a “discreet” pact and in which no name is aired in the public square. The former Minister of Justice, Juan Carlos Campo, has slipped several times that the agreement with Casado’s negotiator – Madrid’s Justice Counselor, Enrique López – was made in the absence of the PP leader wanting to communicate the agreement.
Meanwhile, President Lesmes is expected to make a new public call for renewal in his speech at the solemn opening ceremony of the Judicial Year, on September 6. He did so last year, when he also defended that the CGPJ continue to make appointments with the expired mandate.
74 acting appointments
Precisely during the more than two and a half years of its extended mandate, the CGPJ has drawn up a good part of the composition of the main courts for the next few years. He has agreed to 74 appointments in the judicial leadership, 21 of them in the Supreme Court, where they are considered especially sensitive because those positions, except for resignation, are maintained until retirement, set for judges and magistrates at 72 years of age.
This issue has been one of the points of confrontation with the Executive, where they have always considered that the expired CGPJ should have been limited to deciding on management issues. Tension with the parties that support the coalition government increased as a result of the urgency with which both processed their initiative to limit the powers of the governing body of judges with the extended mandate and prevent it from continuing to make key appointments. The CGPJ, with the backing of 16 of its 21 members, accused PSOE and United We Can of breaking the “separation of powers” by expressly taking away powers and both parties – through the Congressional Board, where they have a majority – answered asking for “respect” for their ability to legislate. This reform was finally approved last March.
Previously, PSOE and Unidos Podemos had registered another proposal with which they intended to lower the majority required to renew the CGPJ and thus force its renewal without the participation of the PP. But that text was questioned by the European Commission, the Council of Europe, the opposition and three of the four judicial associations and was withdrawn by the Government just over a week later. That proposal did not like the majority of members of the CGPJ either, although, due to a matter of time limits, it ended up being debated once it was parked. In any case, the body warned that any reform should be “in accordance with the Constitution and the law of the EU.”
Podemos has recently been in favor of resuming that initiative given the maintenance of the blockade. “The organic path of the Judiciary was made at a time when bipartisanship prevailed in this country and at that time a political context like the current one was not thought. It would be logical and appropriate to modify those majorities to adapt them to the current reality and the reality of Congress and thus be able to unravel the situation, “his co-spokesperson, Pablo Fernández, assured Europa Press last week.
The other clashes with the Government
Those relating to appointments or the election system have not been the only clashes between the Judiciary and the Executive. In January 2020, just two days after taking office, the CGPJ launched the first notice to the then Vice President of the Government Pablo Iglesias for his criticism of the judges. The body asked him to avoid “the political use” of Justice after describing in an interview as “humiliation” that “many” European courts had “taken away the reason” from Spanish judges in resolutions related to the process. Then, Moncloa reacted to the attention of the judicial leadership by closing ranks with Iglesias and framing the words of the vice president in “freedom of expression.”
Three months later, in April 2020 and in full confinement, the governing body of the judges again reproved Iglesias after he assured in a tweet that he was invaded by “a huge feeling of injustice” after the conviction for a crime of attack and minor injuries in a protest against an eviction of Podemos spokesperson Isabel Serra. The CGPJ accused Iglesias of generating “an unacceptable suspicion” about the independence of the judges.
Previously, in January, another moment of tension had taken place between the two institutions as a result of the election of former Justice Minister Dolores Delgado as State Attorney General. At the proposal of President Lesmes, the CGPJ avoided ruling on the suitability of Delgado for the position —as it had been done on the four previous occasions— and limited itself to accepting that he met the requirements “demanded by law.” Seven members of the The conservative wing signed a private vote in which they expressed that it was not suitable because its “appearance of connection with the Executive Power” did not contribute “to the perception of the independence of the Prosecutor’s Office.”
The government’s battered relationship with the upper echelons of the Judiciary had another episode with the delivery of dispatches to the last class of judges, on September 25. The Moncloa vetoed the attendance of Felipe VI to that act, held in Barcelona, after knowing that it would coincide with the sentence on the disqualification of Quim Torra. In the Executive, although they did not communicate it to the public opinion, they understood that the monarch had to be shielded from possible incidents and they tried to postpone it and move him away as much as possible from the political tension that the ruling could cause, to which Lesmes refused. In fact, he even unveiled a courtesy call from Felipe VI, a movement that in Moncloa was interpreted as a use of the Crown as a battering ram against the Executive.