On the table, a PSOE-PP agreement or a legal reform that allows the blockade of the 'popular' to be avoided
This December 4, the General Council of the Judiciary (CGPJ) will celebrate 5 years of expiration, the same years as the current mandate, which represents an unprecedented situation that from within they already describe as "unsustainable" both for the body itself and for Justice. . Before the new Legislature there are two possibilities for renewal: the PSOE-PP political agreement or a legal reform. However, the sources consulted by Europa Press call for caution due to the current climate of confrontation between the Government and the judicial world over the amnesty, which would lead to the second option.
This Council was established on December 4, 2013 with the 20 members established by law plus the president chosen by them, Carlos Lesmes, with a conservative majority. It had to be renewed in 2018, but the lack of agreement between PSOE and PP - which are the only ones that have the necessary parliamentary majorities - has led to this situation of stagnation a decade later.
Over the years, the governing body of judges has been breaking down. There are only 16 members left - although conservative dominance is maintained - after the retirements of Rafael Fernández Valverde and Rafael Mozo, the resignation of Concepción Sáez and the death of Victoria Cinto.
In addition, it has seen three presidents pass. Lesmes resigned in October 2022 to force the PSOE-PP pact and was succeeded by Mozo, as he was the oldest member. But the latter had to retire on July 19, handing over to the current interim president, Vicente Guilarte.
Beyond the institutional discredit, which is already a cry in the judicial world, the interim situation of the CGPJ has had a clear impact on the administration of justice due to the legal impossibility of an expired Council making discretionary appointments in the high courts.
In total there are 85 vacancies in the judicial leadership, with one in the National Court, 25 in the provincial courts, 36 in the Superior Courts of Justice (TSJ) and 23 in the Supreme Court (TS). The latter has already lost a third of magistrates without filling their positions, which has brought its Contentious-Administrative and Social chambers to the brink of collapse. His Technical Office, in a report issued a little over a year ago, warned that this would mean issuing a thousand fewer sentences.
This vacancy crisis has its origins in the reform of the Organic Law of the Judiciary (LOPJ) carried out by the PSOE and Podemos in March 2021 to push the PP to agree, a legal modification that prevents an acting CGPJ from leading to discretionary appointments and which underwent a counter-reform months later, that July, to facilitate the partial renewal of the Constitutional Court (TC), which was finally achieved.
During this time, there have been several attempts at renewal, the most recent in the context of the municipal and regional elections of May 28, although they were blown up with the advancement of the general elections to July 23. Now, once the new Government has been formed, the sources of the governing body of the judges consulted by Europa Press see another window of opportunity: "Not renewing is now becoming unsustainable."
The question is how. The sources agree that the ideal option is for PSOE and PP to resume negotiations. In fact, the Minister of Justice, Félix Bolaños, told Guilarte in his first meeting after taking office that his intention was to recover the agreement from a year ago, which was practically closed - with ten progressives and ten conservatives, being the Presidency the main obstacle-- and was shipwrecked by the announcement of the imminent reform of the crime of sedition.
In the PP, although they are willing to sit down and talk, they continue to draw the same red line and demand that the renewal be accompanied by a reform so that the 12 members who must be chosen from among judges and magistrates - the so-called judicial shift - are selected by their peers, in line with European standards, leaving the other 8 members appointed from recognized jurists in the hands of the Cortes Generales.
The Government of Pedro Sánchez has not refused to talk about this possible reform but insists that the urgent thing is to renew. The aforementioned sources believe that, if in the new contacts the socialists gave the 'popular' "guarantees" for the modification of the judicial election system, an agreement between both parties would be possible.
However, in the CGPJ no one is carried away by optimism, since in this five years the current members have been on the verge of packing their bags several times without their expectations having been met. Thus, the sources of the governing body of the judges also point to a "renewal the hard way" through a legal reform promoted by the Government and its partners that leaves the PP aside.
Some jump directly to this scenario of confrontation, ruling out that the party led by Alberto Núñez Feijóo is going to start talks with the PSOE in the midst of the parliamentary process of the amnesty law. "There are no incentives," they say. Others, however, see the legal reform as a second phase that would be opened only if the PP blocks the agreement, either to force the pact or to renew it directly.
Sources point out two possible reforms. Firstly, the proposal registered in October 2020 by PSOE and Podemos to, in the event that in the first round it was not possible to elect the 12 judicial members in the Congress of Deputies and the Senate by the three-fifths majority that marks the law, that in a second round they would emerge with an absolute majority.
The President of the Government expressly ruled out this possibility on his recent trip to the Middle East, although he is distrustful of the CGPJ. At the time, the PSOE ended up withdrawing this bill, after Brussels raised the alarm, but has subsequently been threatening to reactivate it.
The sources contemplate a second reform aimed at those 12 members being elected by Congress, thus tilting the Senate, the legislative seat currently dominated by the PP. The TC, in a recent ruling on the limitation of powers of an expired CGPJ, stated that it is "possible, within the constitutional framework, that the proposal for his appointment comes in whole or in part from the Congress or the Senate."
In any case, it would be a partial renewal, since the Constitution only allows 'playing' with the way of electing the 12 judges - which are now elected by halves and a three-fifths majority in each chamber - by leaving it " in the terms established by the organic law", but it expressly says that the 8 of the jurists must be appointed, 4 by Congress and the same number by the Senate with a reinforced three-fifths majority.
Partial renewal, although it has never occurred, would be possible. Thus, that same TC ruling indicates that, although comprehensive renewal is "the formula that the legislator has chosen from the beginning", some "system of renewal of the body by parts" is not "inconceivable". In fact, the LOPJ itself contemplates that, if there are 10 members appointed by one of the chambers without the other 10 being present, the first ones can take office.
From the CGPJ, the preferred option is without a doubt the PSOE-PP agreement. Its interim president has set it as the priority of his mandate, although he is aware that he can only act as a "mediator", since the decision is in the hands of the parties.