systems appointment of judges are always a controversial issue, and not only when it comes to the appointments at the top of the race that the General Council of the Judiciary (CGPJ) -provided that it is not, like the current one, in office-.
Another way to access positions of special responsibility without corresponding due to seniority is that of be appointed on “secondment” for a court or tribunal whose holders are on leave of absence, a procedure, whose ‘abuse’ in some bodies, such as those of instruction of the National High Court, denounces the Civic Platform for Judicial Independence in a recent report to which El Periódico de España has had access.
This platform, chaired by the State attorney Elisa of the Walnut and composed of some 200 jurists between magistrates, lawyers, notaries and university professors throughout Spain, has published this week a report on judicial service commissions that questions this practice, which in Europe is only use Spain and Poland.
They consider that the CGPJ grants them in compliance with what is stated in the Organic Law of the Judiciary (LOPJ) but with absolute discretion because there is no regulated scale, judicial control of the designation criteria is not possible. It also allows judges from recent promotions to already be in the National High Court through this channel.
sensitive summaries
Although the report does not mention them, they refer to the magistrates who, based on the granting of these permits, instruct summaries in the National High Court that are of special sensitivity, due to its possible impact on politics.
Currently enjoys this administrative situation the judge of the National High Court alexander abascal, who is among the candidates who could be supported by the PP for a future member of the CGPJ. Abascal was a reinforcement judge in the Court of Instruction number 6, which handles cases as mediatic as the macro-cause against the commissioner José Manuel Villarejo or the corruption summaries ‘Púnica’ and ‘Lezo’, but several months ago he went to Central 1 and his appointment in this body has been recently extended given that the holder, the magistrate Ana Mercedes del Molino, is on secondment from the Ministry of Justice.
Also in a situation of commission of service, as reinforcements in Central number 6, are currently the magistrates Joaquin Gadea and Daniel Gonzalez Uriel, although the medical leave that has lasted for several weeks of its head, the veteran Manuel García-Castellón, has forced the former to take charge of the matters that accumulate in this court on the front line.
In many cases, the permanence in investigating courts by the beneficiaries of these service commissions lasts for years, while the holder who obtained the position remains in positions in the Administration or in international bodies, as happened with Del Molino’s predecessor. in the Instruction Center number 1, Luis Francisco de Jorge.
“apparent” motivation
For the authors of the report, the current regulation of the judicial service commissions incurs deficiencies because the designation criteria obey to overly vague rules that promote “a motivation that is only apparent and with such a degree of discretion that slide towards arbitrariness”.
They add that, since the service commission must be confirmed after six months, and again for a possible extension of another year, “the dependence of the appointee with respect to the Council is evident”.
In the opinion of these jurists, the CGPJ “is dependent on political ties who question their neutrality”, so that “it is feasible to create a professional curriculum for those candidates whom you want to promote for cronyism or other extralegal reasons, which entails a risk of discrimination for the vast majority of magistrates”.
This vast majority, the document adds, “limit themselves to humbly carrying out their work, without knowing or wanting to know anything about negotiations between corridors, contacts in high places or perks of any kind.” They even cite a sentence of the Court of Justice of the European Union, C-748/19, which provides “legal materials to challenge a good part of the agreements through which, today, vacancies are filled or reinforcements are assigned in the Spanish jurisdictional bodies”.
During the state of alarm
Other associations of judges, such as the Independent Judicial Forum (IJF) already drew attention to this matter a few months ago. In May 2020 he warned that during the first state of alarm the CGPJ had published 25 service fees provided for in article 216 bis and following of the LOPJ, and requested the General Council of the Judiciary (CGPJ) to reinforce the guarantees in this way of providing judicial positions, among them that special publicity be given to the offers and transparency in the concession.
For all these reasons, this forum of jurists warns of the use of this appointment system “as opposed to the appointment of judicial positions by a strict competitive system, with a regulated scale of merits.
Thus, the report underlines as necessary the establishment precise rules on the appointment, the duration of the mandate and the causes of dismissal of the members of a judicial body, “that make it possible to exclude any legitimate doubt in the minds of the defendants as regards the impermeability of said body against external elements and as regards its neutrality before the interests in dispute “.
Doctrine of the Supreme
They also recall the doctrine of the Supreme Court in this regard, citing the judgment of November 18, 2020, regarding the commission of services for a Central Court of Instruction, which the report qualifies as “questionable”.
In it, it is indicated that “the appointment must be made (…) in a casuistic and individualized manner based on the specific concurrent circumstances; and, for this very reason, the Council must be granted a wide discretion in order to determine the criteria that should decide the designation based on the uniqueness that each situation presents & rdquor ;. The same sentence states that “These are not designations that embody a professional promotion & rdquor ;.
Finally, the jurists of the platform warn that numerous judicial positions of responsibility are discretionary appointments by the Council, “so that, obviously, the time served in commission can be used as merit in a decision that, by the way, will be made by the the same body that appointed the applicant to the committee. Thus, the Council, like Pygmalion, he can prefigure the merits of his candidate to future discretionary posts.”
The criticisms are not shared by members of the CGPJ as is the vocal Jose Maria Macias that he respects the opinion of the platform, although he adds, in statements to El Periódico de España, that the report is nothing more than “an easy criticism that stems from mistrust in institutions as a principle”, aimed at depriving the governing bodies of the judiciary of any management capacity to attend to the specific circumstances of each commission.
He adds that, in the case of service commissions, the report presents a distorted image of the current regulation. According to Macías, the system “guarantees transparency in the process, the intervention of various bodies whose opinion is equally transparent –the Governing Chambers of the judicial bodies and the CGPJ itself– and have procedures aimed at verifying the need for the commission and the candidate suitability. In addition, the selection is motivated and controllable by the Third Chamber of the Supreme Court.