The conservative bloc of the TC warns that the "denaturalization" of the CGPJ undermines judicial independence

Criticizes the "punishment" of the Legislative Power to the CGPJ to achieve a renewal that has not yet arrived

The four magistrates who make up the conservative bloc of the Constitutional Court (TC) have warned that the reform that prevents a functioning General Council of the Judiciary (CGPJ) from making discretionary appointments represents a "denaturalization" of the body, to the point that affects its main constitutional function: guaranteeing judicial independence from "political power."

This is how judges Ricardo Enríquez, Enrique Arnaldo, César Tolosa and Concepción Espejel express themselves in a joint dissenting vote where they show their disagreement with the sentence approved last Monday by the progressive majority of the TC that endorses the reform of the Organic Law of the Judiciary ( LOPJ) approved in March 2021 to limit the powers of a CGPJ like the current one, whose mandate expired on December 4, 2018.

The letter, to which Europa Press has had access, explains that "the constitutionality of a norm whose purpose is to address an abnormal situation in which the mandate of the members of the Council has expired, the Chambers do not comply with cannot be automatically ruled out. their 'power-duty', incoercible in Law, to proceed in time with the appointment that fulfills them".

However, he maintains that in this case the "constitutional limits" have been transgressed because the reform impacts the function that makes up the "essence" of the CGPJ, that is, that of "guarantor of the independence not only of the individual judge, but of the entire judicial system as a whole", "a flagrant denaturalization of the governing body of the Judiciary" that reduces it to "a mere administrative management body".

The magistrates recall that the Constituent Assembly wanted to "protect" the Judiciary "from the intervention of political power. In fact, they point out that "we are faced with a body designed by the 1978 Constitution to assume the functions that can best serve the Government in trying to influence the courts, such as favoring some judges through appointments and promotions, or avoiding inconvenience and damage due to inspection and imposition of sanctions.

Thus, they denounce that the functions that precisely justify the existence of the CGPJ have been "substantially affected: on the one hand, intervening in the election and appointment of judges, as a necessary element to guarantee the independence of judicial bodies; and on the other hand, intervening in the exercise of judicial disciplinary power, in order to prevent it from becoming an 'instrument of pressure on judicial activity or political control.'"

Consequently, they maintain that "not only the rule of law and the principle of division of powers are affected when functions constitutionally reserved to another power of the State are attributed to a power, but also when it is deprived of those essential powers attributed for the development of the function that it has constitutionally attributed".

In line, they reason that "the appearance of impartiality of certain jurisdictional bodies could be called into question by the reform, given that the normal way of appointing magistrates and presidents of the higher judicial bodies of our jurisdictional structure is affected."

"These appointment functions do not 'revert' to the Executive Branch, but the result is that control is also exercised over said power of appointment, in this case of a negative nature, by denying its exercise," they state.

Therefore, they consider that "this negative control inevitably entails an appearance of lack of impartiality in the criteria that govern these appointments, which is poorly compatible with the principles of the rule of law, the separation of powers and judicial independence."

NO COMPARISON POSSIBLE

On the other hand, they reject the argument of the approved sentence that justifies the limitation of a CGPJ in office because other powers of the State - the Government and the Cortes Generales - already have them restricted when their mandate has expired.

And this is because, they point out, "the powers vested in the Council cannot be assimilated to those exercised by either of these two powers, with the CGPJ being a body that performs a function of guaranteeing the independence of the Judiciary, which is why it does not belong to the political sphere, and does not share the representative nature enjoyed by the Cortes Generales".

"Therefore, compared to what is stated in the ruling, the decisions adopted by a new renewed CGPJ are no more legitimate than the decisions that a CGPJ that is 'in office' may adopt. The Council does not have to contribute (. ..) 'democratic legitimacy of the Judiciary', because that is not its function," they clarify.

Specifically, they refer to the Legislative Branch to state that "it is constitutionally inadmissible, but this has happened, that the Chambers can approve a rule to compel themselves to comply with a duty that corresponds to them 'ex constitutione', or, as "affirms the majority's ruling, as a guarantee of the independence of the Council from the Chambers themselves."

"What the ruling does is to accept as valid the procedure of the Legislative Branch in the contested law which, exonerating itself from non-compliance with its constitutional duty (to renew the Council), punishes the CGPJ, to whom this non-compliance is not attributable, with the deprivation of its inherent functions," they lament.

They also add that, "if the purpose of the legislative reform was to 'favor the renewal' of the constitutional governing body of the judges, the impotence of such a design has been sufficiently manifested by the passage of time."

In his opinion, "what corresponds to the Legislative Branch is to respect and comply with the mechanisms already established by the Constitution", "among which is the obligation to allow the Council to fulfill the role assigned to it by the Constitution in defense of judicial independence, also in the event that the members who make up the Council have been appointed by a majority other than that which currently makes up the Chambers."

However, the magistrates understand that "the independence of the Council with respect to the Legislative and Executive Branches has been weakened, thus contributing to a weakening of the independence of the Judicial Branch as a whole and affecting the principle of separation of powers inherent to our State of Right".

"JAM" IN THE ADMINISTRATION OF JUSTICE

Finally, the magistrates warn of the consequences of said reform on the functioning of the administration of justice, putting the magnifying glass on the "general traffic jam" that it has caused in the Supreme Court (TS), with 23 vacancies affecting its five chambers. .

"Not only has it left said judicial body in a situation of precarious human resources, but it certainly does not contribute to the exercise of fundamental rights to a process without undue delay and to effective judicial protection," they warn.

They also question the timing of the reform, "three years after the mandate of the members of the Council expired", and its forms, with a parliamentary procedure "urgent and without hearing the main affected sectors."

Likewise, they draw attention to the fact that an express counter-reform was made to return to the CGPJ its ability to propose candidates to the TC just when the partial renewal of the Constitutional Court was pending and was the third that is the responsibility of the body and the Executive, "so "it was necessary for the Council to appoint the two magistrates that corresponded to it, simply so that the Government could in turn designate its two."