Wednesday, November 30

The PSOE agrees with the PP that judges who enter politics cannot return to Justice until two years after leaving

The PSOE and PP negotiators, on the verge of closing the agreement to renew the General Council of the Judiciary (CGPJ), have already managed to agree on measures to reform the judicial system that will facilitate the unblocking four years after the expiration of the mandate. The conversations that are about to lead to the renewal, paralyzed during those four years by the popular ones, include relevant transfers by the PSOE. According to negotiation sources, the PP has managed to get the Socialists to give the go-ahead to one of its big bets in terms of “revolving doors”: that judges who have had some political responsibility cannot exercise jurisdictional tasks until two years after his termination.

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The intention of the negotiators is that the measure, which will be reflected in a bill signed by socialists and popular, does not have a retroactive effect. Despite the fact that the initiative has generated concern in some members of the Executive, in principle it will not affect the three minister judges of the Government -Margarita Robles (Defense), Fernando Grande-Marlaska (Interior) and Pilar Llop (Justice)- in the face of the return to their places when they leave politics.

The concern within the Council of Ministers lies in the fact that if the measure finally did have a retroactive effect and the aforementioned ministers wanted to secure their positions as judges prior to entering the Executive, they would have to resign their government positions before the approval of the new law and Sánchez would face a government crisis as a result of his pact with the PP. Robles and Grande-Marlaska have their destiny in the National Court while Llop has a place in a court of Violence against Women in Madrid.

The partners in the negotiation have agreed, for the time being, that the judges and magistrates who are appointed to elected political or government positions cannot pass sentences in those two years, although they will receive their salaries and perform legal functions in State institutions. . Those who have performed tasks in the General State Administration will do so with the category of magistrates of the Supreme Court and those who have performed tasks in regional or local administrations with the category of magistrates of the Superior Courts of Justice. The measure would affect all positions with a rank higher than general secretary, according to the sources of the negotiation consulted by

The precedent of 1997

This point agreed upon between the PP and PSOE already appeared in the proposal to reform the Judiciary submitted by the main opposition party at the beginning of last summer. In that document, entitled ‘Proposal to strengthen judicial independence and democratic quality in Spain’, the popular demanded conditions such as the so-called “Revolving Doors Regulation” so that the judges and magistrates who are appointed to elected political or government positions may not “re-enter active service until two years have elapsed from the cessation of the aforementioned positions.” Those of Feijóo also proposed that “all the high positions of the judicial career be appointed by a three-fifths majority”, another proposal that has ended up being incorporated into the agreement, according to the sources consulted.

The new regime of return to the judicial career would mean a radical turn to the current framework, in which the return to the judiciary of those who have held political office is almost automatic. The Organic Law of the Judiciary establishes that they must request re-entry into active service within a maximum period of ten days from the date of termination and return to their destination within the immediately following 20 days. Otherwise, they would be declared on voluntary leave.

It is the procedure followed, for example, by the former Minister of Justice Juan Carlos Campo. It was terminated on July 10, 2021 and, three days later, he asked to return to the judicial career. The Permanent Commission of the CGPJ agreed to his re-entry into active service with effect from July 13 and he took possession of his destiny in the Criminal Chamber of the National High Court in August. In its current wording, the law establishes that judges and magistrates in a situation of special services are computed for the time they remain in such a situation for the purposes of promotions, seniority and passive rights and they have the right to reserve their position.

The PP proposal that the PSOE has now assumed is not strictly new. In 1997, during the first legislature of José María Aznar, the Conservatives toughened the conditions of return to the judicial career of the judges who were dedicated to politics and even of those who had limited themselves to appearing on an electoral list. The law was amended to impose, in these cases, the obligation to be on forced and paid leave for three years after leaving office. The measure also affected judges who had participated in an electoral list even if they had not been elected. Their place was not reserved for them and they had to compete to access another one when the set period had passed. The PP came to raise the retroactivity of this measure through an amendment that was rejected.

The conservatives said then that it was a proposal that served for “democratic regeneration.” However, behind the proposal lay the controversy generated by the return of Baltasar Garzón —from his deputy seat on the PSOE lists and his high position in the Interior— to the position of judge of the National Court, where he instructed the summaries on the GAL. At that time, the PSOE rejected the measure considering that it could even violate the constitutional right to participate in public affairs and encourage the fraud of law and the abuse of rights, according to what he said. The country. This forced leave of absence was in force until 2001, with Aznar still in government, when it was repealed by virtue of the State pact signed by the PP and PSOE.

20 years of experience to be a magistrate of the Supreme

The agreement between the Government and the PP also foresees requiring a seniority of 20 years of “active service in the judicial career” to be appointed as a magistrate of the Supreme Court. To make this sum, the years of special service of any kind cannot be computed. For example, in a position of political origin. In the current wording, 15 years of exercise in the judicial career are required and in that period the years in politics also count. With these new requirements, for example, Carlos Lesmes could not have been appointed a Supreme Court judge: his experience prior to that promotion was nine years as a prosecutor, eight years in the Aznar government and only eight as a magistrate.

The agreement between the Government and the PP also includes that the appointments of the presidents of the provincial courts be made by a three-fifths majority (13 of the 21 members), which means continuing to amend the model that the PP imposed in 2013 when ruled with an absolute majority. Then, the right used its parliamentary roller to change the system and impose that the resolutions of the body, unless the organic law expressly required otherwise, be adopted by a simple majority (more yeses than noes).

Five years later, in 2018, with the PSOE in government, the law was modified again. Then, the three-fifths system was returned to for the most relevant appointments: presidents of the chamber and magistrates of the Supreme Court, president of the National High Court and presidents of the superior courts of justice. And for the rest of the decisions –other appointments of the judicial leadership, reports of draft laws…– the absolute majority was established (11 of the 21 members). Now, the interlocutors have agreed that this three-fifths majority is also necessary for the appointment of the presidents of the provincial courts.