The General Council of the Judiciary (CGPJ) begins its disintegration. The resignation of its president, Carlos Lesmes, has been the final straw in a situation of "institutional disaster" as the Supreme Court itself has described it. But why has it come to this? Who are responsible? Is there a solution? To answer these questions, it is first necessary to understand its convoluted origin.
The body of judges is made up of twenty members and a president, and they will have a term of five years, as established by the Organic Law of the Judiciary. This Council was appointed in December 2013 and its mandate ended on December 8, 2018. The members are divided between judges and jurists of recognized prestige.
Those who come from the judicial career are 12 and are elected by measures between Congress and the Senate. For their election, the judicial associations present lists from which the two main parties are chosen.
The reason that the decision between the PSOE and the PP ends is because these names must be approved by a qualified majority of three-fifths of the chambers.
The Congress elects 10 members (6 magistrates and 4 jurists) and the Senate another 10, with the same proportions.
There are currently eight progressive members (after the death of María Victoria Cinto) and ten conservative members (after Rafael Fernández Valverde retired). Carlos Lesmes was promoted to president by the conservatives, although in recent weeks he has had a head-on clash with them as a result of the two appointments to the Constitutional Court.
The conservative members are Nuria Abad, Carmen Llombart, María Ángeles Carmona, Vicente Guilarte, José Antonio Ballestero, Gerardo Martínez Tristán, Juan Martínez Moya, Wenceslao Olea, Juan Manuel Fernández and José María Macías.
The progressive vocalists are María Concepción Sáez, Clara Martínez de Careaga, Roser Bach, Pilar Sepúlveda, María del Mar Cabrejas, Enrique Lucas, Álvaro Cuesta and Rafael Mozo.
The previous Minister of Justice, Juan Carlos Campo, had a closed and negotiated list with his interlocutor from the PP, Enrique López, so that the list was made up of ten progressives and ten conservatives. Once all the negotiations are blown up, the situation can be reversed.
Campo and López had the lists closed to renew the Council on time in December 2018 until a WhatsApp message was published by the spokesman for the Senate of the PP Ignacio Cosidó in which he recognized that with the election of Manuel Marchena as president they were going to allow “controlling the Second Chamber (Criminal) from behind”.
That dynamited all the negotiations and forced Marchena himself to give up any option of presiding over the Council, above all due to the lack of decorum because the president is elected by the members themselves, not the parties.
From that moment on, whoever was the leader of the PP began an escalation of excuses to refuse to renew the Council, in the face of a conservative majority situation. He warned that he would not negotiate with a party that is a member of Podemos and that does not respect the monarchy, among twenty excuses.
The last has been to refuse to renew the body of judges if the Organic Law of the Judiciary is not previously reformed so that it is the judges, and not the Congress and the Senate, who elect the members.
The annual report on the rule of law of the European Union urges Spain to renew the CGPJ as soon as possible, in addition to pointing out the need to reform the law. The text considers it a "priority" to renew its members and then reform its operation so that at least half of the member-judges are elected by their peers, as established by European regulations.
The PSOE maintains that with the current law twelve of the 20 members are already chosen de facto by the judges because the names come from a list delivered by judicial associations.
The Government remains in its place and warns that first it is necessary to comply with the current law and renew the body in order to later study a possible reform. The PP demands a previous reform or at least a written commitment that the modification will be made in the terms that they propose.
Another of the aspects that the socialists reproach the popular is that when they have been in government they have never proposed such a reform and they only do so now that they are in opposition.
In fact, in 2013, the former Minister of Justice with the PP, Alberto Ruiz Gallardón, reformed the law in what was described by the opposition as an attack on judicial independence. What he did was to replace the twenty full-time members with a permanent commission made up of six members dedicated exclusively so that the rest would only have functions in the Plenary and combine it with their professional destinies. That reform was seen as an attempt to politically control the CGPJ in addition to giving more power to the president himself.
The outright refusal of the PP to renew the body gave rise to a government movement that accelerated and worsened the collapse of the judiciary. In March 2021, PSOE and Podemos approved a reform of the LOPJ to prevent the Council from continuing to appoint magistrates to the Supreme Court, superior courts of justice and provincial hearings. The thesis of the socialists is that the popular ones had no interest in renewing because meanwhile the Council, with a conservative majority, continued to make appointments and place "their own" in key positions.
With this reform, it was intended to force the PP to go to a renewal. However, this has not happened and what has caused is a situation of "collapse", mainly in the Supreme Court. Retired or deceased magistrates cannot be replaced, which is leading to a drastic reduction in sentences, which leads to a slowdown in justice.
Lesmes claimed that this solution be fixed. This did not happen until the time came to renew four magistrates of the Constitutional Court. Two of them must be elected by the Government and another two by the CGPJ, and these must be done en bloc.
There a problem arose: the Council could not make appointments and what the PSOE did was to reform last July its reform from the previous year and allow appointments to be made, but only those of the TC, leaving no functions for the rest of the appointments. In addition, in this last reform a period of three months was set to make these appointments.
It was precisely this second reform. The conservative bloc saw this parliamentary movement as political interference with the sole aim of achieving a progressive TC, without taking into account the situation of the Supreme Court or the Council itself.
The deadline to appoint the two magistrates ended on September 13 and Lesmes asked to meet the deadline.
However, eight members stood firm before Lemes and warned that he was not going to be in any hurry to propose his candidate. For his election, the support of 12 members is needed. That is why a negotiating table was organized between progressives and conservatives so that each one presented their candidate and both names could come out.
But this block of eight members has remained solid and so they transferred it to Lesmes, who finally decided to leave due to the evidence that he had asked for control of the situation.
