The Supreme is the court most affected by the blockade, with 18 empty seats
MADRID, 4 Dic. (EUROPA PRESS) -
The General Council of the Judiciary (CGPJ) reaches four years in office this Sunday, of which it has been more than a year and a half without being able to make discretionary appointments in the high courts --with the exception of the Constitutional Court--, which has generated a total of 70 vacancies in the judicial leadership, the situation of the Supreme Court (TS) being especially worrisome, where some chambers are already managing to form courts.
The law entrusts the CGPJ with various functions, from the management of the administration of justice to the safeguarding of judicial independence, through the government of human resources, a task that highlights its power to make appointments, some regulated and others discretionary, with the objective of filling the gaps left in the different courts and tribunals by judges and magistrates.
Despite having been in office since December 4, 2018, and since then it has lost two members --Rafael Fernández Valverde, due to retirement, and Victoria Cinto, due to death--, the CGPJ has been able to continue working, except in what regarding making discretionary appointments in the judicial leadership because the reform of the Organic Law of the Judiciary (LOPJ) promoted by the Government and approved in March 2021 prohibits an expired Council from making these appointments.
The legal modification - devised by Moncloa as a measure of pressure on the PP to agree to the renewal of the CGPJ - has caused the vacancies that have arisen in the high courts during these more than 20 months to remain unfilled.
Its effects, in the words of the resigned Carlos Lesmes, have been "devastating." As of today, there are 70 empty positions, the majority in the superior courts of justice, which count up to 31 vacancies, including several presidencies; to which are added another 20 in provincial courts and one in the National Court.
The biggest hole is suffered by the Supreme Court, where there are already 18 vacancies, which represents almost 14% of its staff. The most affected chambers are those of the Military, the Social and the Contentious-Administrative Court, the latter two being the chambers that bring together the majority of the claims related to the restrictions due to the coronavirus pandemic.
In addition, the Contentious-Administrative Chamber has two outstanding issues pending: the appeals of PP, Cs and Vox against the pardons granted by the Government to those convicted of the 'procés'; and the appeal made by the secretary of the CGPJ, José Luis de Benito, against the appointment of Rafael Mozo as interim president of the Council.
This Third Chamber is the most affected of the Supreme Court. The law establishes that it must have a total of 33 magistrates --32 plus the president-- but right now it has nine vacancies that will be 10 on December 27 due to the retirement of Octavio Herrero. Looking ahead to next year, the situation could get worse, since Inés Huerta will also retire on March 27. And that without taking into account that several of its members sound like possible candidates for the Constitutional Court (TC) by the CGPJ, which must name two.
It is followed by the Social Chamber, which should have 13 magistrates, including the president. However, there are five vacancies, including that of its last president, María Luisa Segoviano, who retired on October 20. On July 18, Rosa María Virolés will also do so.
Equally critical is the situation of the Military Chamber, where of the 8 magistrates that usually make it up, 6 remain, to which Fernando Pignatelli will join on September 7.
The problem that the Social and Contentious-Administrative Chambers have been facing for some time is that their magistrates must rotate to be able to compose the sections where matters are deliberated and ruled on, a kind of small courts that must have five magistrates.
More comfortable is the situation of the Civil Chamber, where there is only one vacancy, which means that it still retains 9 of its ten magistrates. For now, the only one intact is the Criminal Chamber, which maintains its 15 magistrates. He will suffer his first loss on April 13 due to the retirement of Miguel Colmenero.
"The damage is so great that a similar situation has not occurred in the leadership of the Spanish Justice in the entire history of our democracy, with negative effects that are spreading little by little to the entire judicial organization," denounced Lesmes during the opening of the judicial course, on September 7.
The legal sources consulted by Europa Press explain that, when the CGPJ can reappoint Supreme Court magistrates, the process could take at least half a year, to which several months would also have to be added until the cases accumulated in its different rooms -- some of which have seen their work more than doubled due to the pandemic-- be resolved by returning to the usual rhythm of work.
To this, high court sources knot that the simultaneous entry of 18 magistrates could precipitate changes in jurisprudence in the affected chambers. In this sense, they state that it is normal for newcomers to have time to assimilate established doctrine before they can propose new interpretations, a process that would be accelerated under these conditions.
It should be remembered that article 1.6 of the Civil Code (CC) establishes that "case law will complement the legal system with the doctrine that, repeatedly, the Supreme Court establishes when interpreting and applying the law, custom and general principles of law" , which makes the TS a beacon for the rest of the judges and courts.
The only court for which the CGPJ can make appointments is the Constitutional Court, due to the counter-reform promoted by the Government that was approved on July 20, precisely, so that the Council could designate its two candidates for the TC, which - -together with the two from the Executive-- form the third of the guarantee court that is pending renewal since June 12.
This second reform of the LOPJ cleared the way to replace the four magistrates of the TC in functions --its president, Pedro González-Trevijano; his vice president; Juan Antonio Xiol; and Antonio Narváez and Santiago Martínez-Vares--, since legal sources point out that it is not clear that the two Government candidates can take office without those of the CGPJ, since the Constitution entrusts renewing this third to the Executive and Council.
Finally, the Cabinet of Pedro Sánchez has nominated this week the former Minister of Justice Juan Carlos Campo and the former high office of Moncloa Laura Díez for the TC, but shortly after the negotiations between the conservative and progressive blocks of the CGPJ to nominate their two aspirants to the Constitutional have come to an impasse. On December 22, he will hold a plenary session where his members are expected to vote, although the sources of the governing body of the judges warn that it is most likely that there will be no white smoke.