The judiciary is renewed in France

While in Spain the government of the judges has been pending renewal for four years thanks to the blockade imposed by the Popular Party, in France, where the renewal of the Superior Council of the Magistracy (CSM) has taken place in recent weeks with hardly any debate, The controversy, if there is one, centers on whether the judges can have a majority in this body, guarantor of their independence and in charge of making the appointments.

Thomas Osborne
Thomas Osborne
18 February 2023 Saturday 22:25
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The judiciary is renewed in France

While in Spain the government of the judges has been pending renewal for four years thanks to the blockade imposed by the Popular Party, in France, where the renewal of the Superior Council of the Magistracy (CSM) has taken place in recent weeks with hardly any debate, The controversy, if there is one, centers on whether the judges can have a majority in this body, guarantor of their independence and in charge of making the appointments.

The French Constitution, reformed in 2008, prevents it. It requires a majority of "lay" members - personalities outside the judicial career - appointed from the legislative and executive branches. And therein lies the debate.

A few days ago, the new Superior Council of the Magistracy was established, which has a four-year mandate. There was criticism from a dissatisfied sector of judges and prosecutors because among the eight members of political designation -the "laity"- there are two former magistrates. According to these critics, this would imply an imbalance and a covert violation of the current constitutional norm that grants a majority to those who are not career judges.

The problematic posts were those of Patrick Titiun, former chief of staff of the president of the European Court of Human Rights (ECtHR), appointed by the President of the Republic, and Dominique Lottin, former magistrate and former member of the Constitutional Council, appointed by the President of the Senate . Finally both are present in the CSM. So is Diane Roman, a prestigious professor at the Sorbonne, appointed by the president of the National Assembly. In her case, her ideological proximity to La Francia Insumisa (LFI, radical left) caused surprise. Apparently whoever chose her, from Macron's party, was unaware of or did not appreciate this circumstance.

In Spain the Council is made up of 20 members. All are approved by the Cortes - ten by Congress and ten by the Senate. Of these, twelve must be proposed among members of the judicial career and by the judges themselves. Eight others are named among jurists. They would be the Spanish "laymen", who do not have a majority on the Council.

For the designation of all of them, a majority of three fifths of the chambers is required. And therein lies the blocking capacity of the PP, which now demands that the judges be chosen from among themselves without intervention based on a disputed interpretation of the Constitution.

In France this controversy is also alive. In the French judiciary there are very different sensitivities regarding the independence of the profession. The Union of Magistrates (USM), which won the last elections with 62% of the vote, is very belligerent "against the politicization of the appointment of judges." They don't like the current system in France. He believes that it goes against the majority position in Europe. “The problem is not the judges; the problem is politics,” Catherine Vandier, treasurer of the USM, former magistrate and former member of the CSM, told La Vanguardia. Vandier rejected that they are a right-wing union and insisted on their independence and pluralism.

The Magistracy Union, which unequivocally assumes to be from the left, questioned whether the two former magistrates appointed in this latest renewal were included as "laymen". “It is important that the CSM cannot be blamed for corporatism or inbreeding,” Secretary General Thibaut Spriet told him. We must avoid the specter of the government of judges. The CSM must be a balanced body and not disconnected from French society. Justice cannot be isolated from the rest of the constituted powers”. According to Spriet, the paradox is that "the high judicial hierarchy is more politicized than the 'laymen' appointed by political authorities."

Be that as it may, in France the judiciary has been renewed. In Spain the current Council has been expired for four years. And no one believes it possible that, before the general elections, that will change.