Five members alert Brussels about a "serious" weakening of judicial independence due to the CGPJ reforms

They denounce "the insulting public demonstrations and attacks by members of the Government and the Legislature against judges and magistrates"

MADRID, 30 Ene. (EUROPA PRESS) -

Five members of the 18 that currently make up the General Council of the Judiciary (CGPJ) have addressed the European Commission to give "complementary" answers to those sent by the CGPJ itself to the questions raised by Brussels to prepare its annual report on the rule of law in each member state. In them, these members, from the conservative wing, alert about a "serious" weakening of judicial independence due to the reforms on the CGPJ.

In the document, to which Europa Press has had access, the members José María Macías, José Antonio Ballestero, Gerardo Martínez, María Ángeles Carmona and Carmen Llombart explain that they have resorted to this "unusual formula" for communication with Brussels because the draft with the The CGPJ's responses were delivered to the members who are not part of its Standing Committee with "insufficient time for analysis" and were sent without prior debate in plenary on them.

"The consequence of this way of proceeding is that the text that has been communicated to the European Commission has only been assumed by 6 of the 18 members of the CGPJ," say the five signatories.

In their supplementary response they denounce "again" that "the breach of the standards of the Rule of Law of the European Union is intense and weakens the functions of the CGPJ for the defense of the independence of the Judiciary in Spain".

They focus on the fact that "the erosion of the powers of the CGPJ weakens its ability to protect the independence of the Judiciary." They allude, first of all, to the legal reform of March 2021 that makes it impossible for a Council in office, like the current one, to make discretionary appointments in the judicial leadership, because "it is seriously harming the regular functioning of some courts."

At this point, they recall the situation suffered by the Supreme Court, "whose staff cannot be replaced", and warn that "it is also producing intensely harmful effects in some jurisdictions, such as the military, all of whose appointments, whatever whatever its degree, is affected by the limitation of competences".

For the five members, "this weakening has become more evident" with the reform operated last summer on the Organic Law of the Judiciary (LOPJ) to return to the CGPJ its power to make appointments, although only to designate its two candidates for the Constitutional Court (TC).

"With this, a modulation of the powers of the CGPJ to the convenience of the Government has been evidenced", they affirm to add that "it is incomprehensible that the appointment of the magistrates of a high court, such as the Constitutional Court, is considered inalienable and not those of another high court, such as the Supreme Court".

In his opinion, "the weakening of the independence of the Judiciary from the perspective of the European standards of the Rule of Law that derives from the previous situation is serious and evident."

In addition, they criticize that "neither the Government nor the Legislature has provided a reasonable explanation of the reasons why a CGPJ whose mandate is extended cannot exercise the functions of a body with an extended mandate."

"This forces us to understand that the reason why the independence of the Judiciary in Spain has been weakened, diminishing the powers of its governing body, is not related to the situation of extension of the mandate of the CGPJ, but is used as a formula of pressure in the debate between political parties, even if it is at the cost of the demands of the rule of law", they lament.

On the other hand, they confirm that "the CGPJ continues without being renewed" recalling that last year there were negotiations between the Government and the PP to remedy it that "concluded unsuccessfully as a result of the crisis in the negotiations caused by the modification of the Penal Code".

They also warn that this penal reform "has meant that not only has the Criminal Code been modified to suppress the crime of sedition, with apparent generality but to leave a specific sentence without content, but also to limit the crime of embezzlement to what is alleged in where there is personal 'appropriation' of public funds, but it will not be penalized if these funds are given a destination other than that provided by law".

In his opinion, "this represents a step backwards and a weakening of the State's capacity to fight against the corruption of high public officials, even when they handle significant volumes of public funds."

However, they add that "the fundamental controversy between the parliamentary groups and political parties that hinders the renewal of the CGPJ continues to be the same as in previous years: the discussion on the adaptation of the Spanish judicial government model to the European standards of the State of Right". And, specifically, "the way in which the judicial members of the governing body of the Judiciary are to be elected.

The five members point out that this "concurrence of circumstances" has resulted in "the poor perception of public opinion about judicial independence in Spain."

In line, they stress that "the legislative changes to which we have referred have been the subject of wide attention by the media, which have formulated critical judgments."

"This continuous succession of reforms and attempts to reform the rules governing the Judiciary, carried out in these terms, inevitably convey to the public a negative perception of the independence of the Judiciary in Spain," they maintain.

To this they add that, "during this entire period, but also specifically during 2023, there have been continuous insulting public demonstrations and attacks by members of the Government and the Legislature against judges and magistrates with the aim of discrediting their credit in the eyes of public opinion, violating thereby again the standards of the rule of law of the European Union".

They also draw attention to the fact that "the reforms are carried out by means of a bill (...), instead of the usual bill in Spanish constitutional practice".

"And, as a consequence of the omission of a previous normative project that is submitted to Parliament, the participation of all advisory bodies and the sectors involved is avoided, both the General Council of the Judiciary and the judges through their associations. , such as the Venice Commission and other qualified actors", they state.

They also criticize that "the practice of applying the urgent processing and approval in a single reading has also been installed, with which the reforms are carried out in a few weeks", and "it even proceeds, during the processing of regulations outside the Power Judicial, to the alteration of the initial legislative proposals by way of heterogeneous amendments".

"With which not only the participation of the CGPJ and other qualified legal actors is limited, but the limitation also reaches the parliamentary groups of the opposition", they emphasize, making it clear that "this situation has given rise to the Constitutional Court has been forced, for the first time in its history, to suspend the processing of a law aimed at modifying the Penal Code".