Introduction
Basic Facts about the Country
Basic Facts about the Judiciary
Judicial Governance
Distribution of Responsibility
Challenges
Positive Developments & Achievements
Rankings and Surveys
Expert Recommendations
Compliance with European Courts' Judgements
Further Readings
Spain
Basic Facts about the Country
Membership of the European Union
1 January 1986
Membership of the Council of Europe
24 November 1977
Entry into force of the European Convention on Human Rights
4 October 1979
Basic Facts about the Judiciary
Budget per inhabitant
€ 75.33 (2020 data) European Commission for the Efficiency of Justice (CEPEJ)
Overall number of judges
Number of professional judges per 100,000 inhabitants
11.2
Tiers in the ordinary court system
3
District Courts
2298 (general jurisdiction)
1588 (specialised jurisdiction)
High Courts of Justice
17
Audiencia Nacional (National High Court, with jurisdiction over the entire territory of Spain)
1
Supreme Court
1
Constitutional Court
Yes
Prosecution Service
Part of the judiciary, with functional autonomy
Prosecutor general is appointed by the head of state, upon proposal of the government, following the consultation with the General Council of the Judiciary
Judicial Governance
Type of governance system
General Council of the Judiciary (Judicial Council)
- Consists of the president of the Supreme Court who presides over the Council and twenty members, including twelve judges and eight experienced lawyers with recognised competence
- The Congress and the Senate, the two parliamentary chambers, each elect four lawyers and six judges to the Council, with a three-fifths majority required for each.
- The Council members have non-renewable mandates of five years.
- The president of the Supreme Court presides over the Council and is elected from among the Council members
Judicial Selection Tribunals
- Nine members – in addition to its president, each tribunal includes two judges, two prosecutors, one senior law professor, two lawyers and a judicial secretary. The institutions of origin propose candidates to the Commission of the General Council, which then appoints the members of the tribunals.
Prosecutor of the Disciplinary Action (Promotor de la Acción Disciplinaria)
- Appointed by the Plenary of the Council among the members of the Supreme Court and judges with more than 25 years in the judiciary
Disciplinary Commission
- Composed of seven members elected by the Plenary of the Council from among its own members (four judges and three lawyers)
Judicial Associations
- The Professional Association of the Magistrature (Asociación Profesional de la Magistratura, APM) – conservative, ideologically close to Partido Popular
- Judges for Democracy (Jueces y Juezas para la Democracia, JJpD), progressive, ideologically close to the Socialist Party
- Francisco de Vitoria Judges Association (Asociación Judicial Francisco de Vitoria), conservative, ideologically close to Partido Popular
Distribution of Responsibility
- Appoints and promotes judges, including Supreme Court judges and court presidents
- Nominates two candidates to the Constitutional Court
- Is heard before the prosecutor general is appointed
- Oversees the judicial academy (which is in charge of initial, as well as continuous training)
- Monitors all courts, to supervise the administration of justice (number of cases decided and pending, as well as duration of proceedings)
- Appoints the prosecutor of the Disciplinary Action (while sitting as a plenary)
- Elects seven members of the Disciplinary Commission from among its own members (while sitting as a plenary)
- Elaborates, executes, and controls compliance with the yearly budget, through auditors
- Manages the courts system
- Makes efforts to secure judicial independence, by reacting to interference with the exercise of judicial functions reported by judges
Judicial self-governance is not the exclusive responsibility of the Judicial Council, since the Supreme Court, the National High Court (Audiencia Nacional) and the High Courts of Justice also have powers over these matters, even though their resolutions may be revised by the Council.
- Organises exams
- Monitoring powers
- Disciplinary powers for minor offenses
- Assembling facts for disciplinary proceedings
- Decides on disciplinary matters
- Management of the material and staff resources of the judicial system
Challenges
Politicisation of the Judicial Council through appointing its members
Spanish legislation of 1980 handed the power to elect judge members of the Council to judges, but this arrangement was short-lived. By 1985, a legislative reform spearheaded by the Partido Socialista Obrero Español (Spanish Socialist Workers’ Party, or PSOE) government, which had secured a majority in the 1982 elections, transferred this power to the parliament, comprising the Senate and the Congress. Under the revised framework, each chamber would elect six judge members of the Council (in addition to four lawyer-members), with a three-fifths majority required. The motivation behind this shift was rooted in concerns about a single conservative judicial association’s dominance over the election of the first 12 judge members of the Council.
The reform was challenged before the Constitutional Court. The Court upheld the constitutionality of the new law, on the ground that the Constitution did not specify the exact method of electing the 12 judge members. The Court expressed reservations about the power shift, however, noting that, had the drafters of the Constitution intended to let the parliament elect all members of the Council, this power would have been directly attributed to the parliament. The Constitutional Court also warned against the risk of subjecting the appointment process to partisan politics in the long run.
Parliamentary appointments to the Judicial Council have, indeed, led to its politicisation. Political negotiations shaped the Council’s composition, resulting in a division within the Council along party lines. While a high decision-making threshold (a three-fifths majority) gave the opposition a say in the judicial council’s composition, instead of promoting broad consensus on the candidates within the parliament, this requirement has led to the practice of allocating the positions to the two main political parties. The PSOE and the Partido Popular (People’s Party, or PP) have generally distributed the 20 candidates between them, with the occasional inclusion of members of a few smaller political groups, depending on their strength in the Congress and the Senate. Despite this informal arrangement, it is not always easy for the parties to reach agreement. Ruling parties, the opposition, or both, may block appointments altogether, hindering the renewal of the Council.
The parliament was expected to renew the Council in 2018. The PP blocked this renewal, however, thus maintaining the conservative majority in the Council. The party came close to agreeing at one point, but withdrew at the last minute, making the agreement conditional on a compromise on matters unrelated to the judiciary. To overcome the stalemate and secure the Council’s renewal, the government proposed controversial changes, reducing the parliamentary majority required for the appointment of the Council members from three-fifths to just a simple majority in the second round of voting. Such a reduction would allow for appointments without the consent of opposition parties. These draft amendments were withdrawn after the European Commission expressed concerns regarding the effects on judicial independence.
In its December 2022 report on Spain, the Council of Europe’s Group of States against Corruption (GRECO) stressed that the four-year deadlock in the designation of the Council was “a matter of critical concern which needs to be addressed as a matter of priority”.
The politicisation of the Council adversely affects its functioning and public image. As highlighted by commentators, the Council members often convey the political preferences of the party that nominated them; the voting patterns within the Council attest to the divide between the members considered progressive and those considered conservative. There is a risk that political considerations will influence the decisions on which judges are promoted and which are disciplined. The ability of the Judicial Council to play a role in shielding judges from political interferences is limited.
The Council is perceived as politicised by judges themselves. According to the surveys of the European Network of Councils for the Judiciary conducted in 2022, Spanish judges rate the independence of the Spanish Council with an average score of 2.7 out of 10, the lowest score among EU countries. The politicisation of the General Council explains why public perceptions of judicial independence in Spain continue to be low. Overall, only 34 per cent of the general population perceived the level of independence of the courts and judges to be “fairly or very good” in 2023.
When appointments to the Judicial Council get delayed considerably, politicisation also undermines the effectiveness and functioning of the Council. Due to the blocking of the renewal of the Council – a direct consequence of the politicised processes for appointing its members – the institution has been functioning ad interim since 2018. The expired Council has been precluded from appointing Supreme Court judges and court presidents by Organic Law 4/2021. This has affected the quality and efficiency of the justice system, and especially that of the Supreme Court, which has to function with fewer judges and cannot process cases as quickly. Over 30 per cent of the posts at the Supreme Court remain vacant, leading to significant backlogs. The sections of the Supreme Court with the highest number of unfilled positions have issued some 1,230 fewer decisions every year.
Moreover, the politicisation of the Council also resulted in the blocking of appointments to the Constitutional Court in 2022. Out of 12 nominations, eight come from the legislature, two from the government, and two from the Judicial Council. Due to this, the appointments to the constitutional court are politicised as well.
While the renewal of the Council is necessary, merely doing so will not effectively address the long-standing issue of the politicisation of appointments. Spain could contemplate retaining the current system of parliamentary appointments while introducing safeguards. For example, an apolitical body could be tasked with vetting candidates, and a more effective anti-deadlock mechanism could be implemented. Drawing from the lessons of political bargaining over the Council’s composition, however, a departure from parliamentary appointments seems essential to bolstering the credibility and quality of the judicial branch. In the absence of a culture of respect for judicial independence, attempts to influence the Council will persist, resulting in more blockages, and ultimately compromising the Council’s effectiveness and public image.
A power transfer from politicians to judges could contribute to decentralising and depoliticising the process, which is now concentrated fully in the parliament. Bringing judges into the picture could render the Council more sensitive and responsive to judges’ concerns. However, this model comes with the risk of judicial corporativism and domination by judicial associations, potentially amplifying ideological divisions. It is vital, therefore, to ensure that the appointment process embraces pluralism and diversity, and facilitates the meaningful participation of all judges. Even under the existing politicised system, judicial associations (the two major ones – conservative and progressive) play a role in the selection of candidates (while the final decisions are in the hands of the parliament).
Both leading parties have promised in the past to de-politicise the Council when they were in opposition, only to fail to do so when they came to power. Currently, the PSOE continues to insist on the renewal, but defends the current model, emphasising that parliamentary involvement is a source of democratic legitimacy. The Sumar programme acknowledges the risks of instrumentalisation of the Council, but advocates for keeping the current model of parliamentary appointments with some adjustments. The PP promises change in the appointment method, so that judges elect judge members of the Council – this aligns with European standards. National observers are sceptical, however, as the PP’s record of keeping promises on this issue does not inspire confidence. The far right Vox party is supportive of the election of the Council members by and from among judges, but also proposes the cancellation of the Constitutional Court and transferring its powers to the Supreme Court. This proposal could be read as an attempt at weakening judicial checks on the government.
The European Commission has consistently expressed concern about the failure of the Spanish parliament to renew the Judicial Council. Where warranted, it has criticised legislative proposals advanced by the government to overcome the deadlock created by the opposition to keep a conservative majority in the Council. In its 2022 Rule of Law Report, the Commission called for the renewal of the Council and for reforming it, in line with European standards. In its 2023 report, the Commission again called for the renewal of the Council as “a matter of priority” and the initiation “immediately after the renewal” of the process of adapting the procedure for appointing its judge members.
On 22 June 2023, in the case of Lorenzo Bragado and others, the European Court of Human Rights (ECtHR) found that Spain had violated Article 6 of the European Convention on Human Rights (ECHR) which pertains to the right of access to a court. This violation arose from the Spanish constitutional court’s dismissal of amparo appeal filed by six judges regarding the Parliament’s failure to pursue the process for appointing judicial council members from a list of candidates that included their names. The Constitutional court rejected their appeal on grounds of being filed beyond the time limits stipulated in the law, without examining the merits of the claim. The ECtHR emphasised that the Constitutional Court was the sole jurisdictional level capable of dealing with the issues addressed in the appeal. Given the importance of this matter, the apparent novelty and rarity of the legal issues raised, and in consideration of the goals of legal certainty and the proper administration of justice, any rejection of the amparo appeal solely for non-compliance with statutory time limits should have been accompanies by adequate reasoning.
Flaws of judicial selection
The debate surrounding the need for reform in the model of judicial selection has yielded minimal change over time. The initial selection process for entry-level appointments involves competitive exams, followed by a six-month course at the Judicial Academy. Criticism of this system stems from the fact that the exams primarily test candidates’ memory, rather than their analytical and argumentative skills. Candidates are informally prepared for exams by incumbent judges, who act as “personal coaches”. Most candidates, and even some judges, claim that it is not possible to pass the exams without such coaching. Another notable critique is that access to judicial posts is not really transparent. The Commission responsible for assessing the candidates does not provide explanations for its decisions.
The Judicial Council is responsible for promoting judges to higher courts and administrative positions, such as those of court presidents and the Supreme Court judges. The Council enjoys considerable discretion in these appointments, leading commentators to argue that this latitude leaves too much room for arbitrary decisions, based on political views or affiliations. The requirement of only a simple majority for such decisions further exacerbates the issue. There is a risk that judges who want to be promoted will curry the favour of politicians by aligning with their positions or making their ideological or political opinions known. Hence, political factors could unduly affect the promotion of judges, potentially interfering with adjudication.
In response to these concerns, in 2006, the Supreme Court issued a ruling asserting its authority to review the appointments made by the Judicial Council, setting the principles of merit and capacity as limits to the Council’s discretion. The Court emphasised the necessity for the Council’s decisions to be motivated properly to avoid arbitrariness. While the Council subsequently improved the procedures in terms of transparency, it is believed that these processes still remain highly discretionary. According to the ENCJ surveys from 2022, 65 per cent of judges believe that high-level judicial appointments are not merit-based.
In 2013, GRECO recommended that objective criteria and evaluation requirements for appointing higher-ranking members of the judiciary be enshrined in law. This recommendation was aimed at ensuring that those appointments do not cast doubt on the independence, impartiality, and transparency of the process. Spain was unable, however, to address GRECO’s call properly. The parliament passed a reform in 2018, which stipulates that the Council must determine the value of each merit for evaluation a priori, and how they contribute to overall evaluation in discretionary appointments. Prior to this reform, the Council was not obligated to specify the value of each merit, and oversight of the Council’s decisions by the courts was limited. While GRECO acknowledged some progress, it noted that further streamlining of requirements and procedures in this domain was needed. At this point, the expired Council is, in any case, precluded by law from appointing Supreme Court judges and court presidents.
Experts have identified significant procedural obstacles to obtaining judicial review of both appointments and dismissals. Candidates for judicial positions and judges directedly affected by these decisions often hesitate to appeal, due to fear of reprisals, or simply due to the substantial time and resources involved. Those not directly affected lack standing to request a review. Many courts conduct only a purely formal review of the selection processes, enabling some institutions to sidestep the core issue raised by simply making a greater formal effort to provide the motivation for their appointments, but without changing the person appointed.
Politicians’ hostile rhetoric towards judges
Spanish judges and experts have criticised politicians not only for questioning judicial rulings, but also for targeting particular judges on social networks and other media. Such practices undermine public trust in the judiciary and the principle of the separation of powers. The European Commission also acknowledged this concern in its 2023 Rule of Law Report, stressing that “while courts are not immune to criticism and scrutiny, the judiciary must enjoy public confidence to be successful in view of its special role in society”, and that “all powers of the State must foster and protect the trust of the general public in constitutional institutions including the judiciary.”
Danger of politicisation/lack of guarantees of prosecutorial independence
Prosecutor generals often maintain close ties with the government, creating a significant risk of dependency on the executive branch. This concern is exacerbated by the concentration of powers in the hands of the prosecutor general, including in terms of internal organisation and prosecutorial careers. The absence of an objective promotion system with evaluation rules, an objective merit scale, a system for ranking candidates, and sufficient publicity of vacancies, makes it difficult to respect the principles of merit and ability. Prosecutors working on sensitive cases were hindered in access to promotions in the past.
Hay Derecho has expressed apprehension that, while the two majority associations of prosecutors do not together account for even 30 per cent of the members of the profession, in practice, their members end up occupying all significant positions, including those in consultative bodies, such as the Prosecutorial Council. One notable exception from this rule was the presence, since October 2022, in the Prosecutorial Council of Salvador Viada, president of APIF, an independent association of prosecutors.
The reforms should not only aim to ensure independence from the executive (for example, through separating the term of office of the prosecutor general from that of the government, as recommended by the European Commission), but also through addressing the wide discretionary powers of the prosecutor general, particularly in areas such as the promotion system.
Positive Developments & Achievements
Despite the Council’s politicisation and concerns regarding its independence, there is no definitive evidence indicating that individual judges consistently favour specific parties, or that they broadly lack independence and impartiality. In its 2013 report, GRECO, in highlighting the divergence between the assessment of the independence of individual judges and that of the Council, wrote that “while the independence and impartiality of individual judges and prosecutors have been broadly undisputed to date, much controversy surrounds the issue of the structural independence of the governing bodies of the judiciary and the prosecutorial service”.
Spanish courts have been interacting with the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). Since 2010, there has been an increase in the number of requests for preliminary rulings to the CJEU from Spanish Courts, with the highest numbers recorded in 2018 (67) and 2019 (64). Against the Constitutional Court’s interpretation, a preliminary reference led to the recognition of the right of access to a lawyer for suspects in absentia during the pre-trial phase (Case C-659/18 VW case)
During the COVID-19 pandemic, scholars have argued that the Spanish judiciary developed an active role regarding the management of the crisis, using fundamental rights to scrutinise public action. Notably, the Spanish Constitutional Court declared several aspects of the state of alarm unconstitutional, establishing that some restrictions on fundamental rights, especially mobility limitations, would have to be approved through a state of emergency, necessitating initial parliamentary agreement. These decisions clarified the roles of the executive and the legislative branches in times of crisis.
Rankings and Surveys
Expert Recommendations
Overall, concerning the recommendations in the 2023 Rule of Law Report, Spain has (made):
- Some progress on strengthening the statute of the Prosecutor General, but not regarding
the separation of the terms of office of the Prosecutor General from that of the
Government, taking into account European standards on independence and autonomy of the prosecution. - Significant progress on renewing the Council for the Judiciary as a matter of priority and
initiating, immediately after the renewal, a process in view of adapting the appointment of
its judges-members, taking into account European standards on Councils for the Judiciary. - Some progress on stepping up efforts to address the challenges related to the length of
investigations and prosecutions to increase the efficiency in handling high-level
corruption cases, including by finalising the reform of the Code of Criminal Procedure. - No further progress on strengthening access to information, in particular via revision of the Law on Official Secrets, taking into account European standards on access to official documents.
On this basis, and considering other developments that took place in the period of reference, it is recommended to Spain to:
- Continue to strengthen the statute of the Prosecutor General, in particular regarding the separation of the terms of office of the Prosecutor General from that of the Government, taking into account European standards on independence and autonomy of the prosecution.
- Building on the agreement of 25 June 2024, finalise the renewal of the Council for the Judiciary and take forward the process in view of adapting the appointment procedure of its judges-members, taking into account European standards on Councils for the Judiciary.
- Step up efforts to address the challenges related to the length of investigations and
prosecutions to increase the efficiency in handling high-level corruption cases, including by finalising the reform of the Code of Criminal Procedure. - Advance with strengthening access to information, in particular via revision of the Law on Official Secrets, taking into account European standards on access to official documents.
European Commission, Rule of Law Report, 2024
Overall, concerning the recommendations in the 2022 Rule of Law Report, Spain has (made):
- No further progress on strengthening the statute of the Prosecutor General, in particular regarding the separation of the terms of office of the Prosecutor General from that of the Government, taking into account European standards on independence and autonomy of the prosecution.
- No progress on proceeding with the renewal of the Council for the Judiciary as a matter of priority and initiating, immediately after the renewal, a process in view of adapting the appointment of its judges-members, taking into account European standards.
On this basis, and considering other developments that took place in the period of reference, and in addition to recalling the commitments made under the national Recovery and Resilience Plan relating to certain aspects of the justice system, it is recommended to Spain to:
- Strengthen the statute of the Prosecutor General, in particular regarding the separation of the terms of office of the Prosecutor General from that of the Government, taking into account European standards on independence and autonomy of the prosecution.
- Proceed with the renewal of the Council for the Judiciary as a matter of priority and initiate, immediately after the renewal, a process in view of adapting the appointment of its members, taking into account European standards on Councils for the Judiciary.
Adopted by GRECO at its 92nd Plenary Meeting (Strasbourg, 28 November- 2 December 2022)
Recommendation v
- GRECO recommended carrying out an evaluation of the legislative framework governing the General Council of the Judiciary (CGPJ) and of its effects on the real and perceived independence of this body from any undue influence, with a view to remedying any shortcomings identified.
- GRECO concluded in the Second Compliance Report that this recommendation was not implemented. GRECO again reiterated the need to remove the selection of the judicial shift from politicians.
- The authorities of Spain indicate that negotiations on the renewal of the General Council of the Judiciary (CGPJ) were resumed in October 2022; they were nevertheless halted at the end of that very same month.
- GRECO regrets the lack of any positive outcome to implement this recommendation. GRECO refers again to the standards of the Council of Europe regarding the election of the judicial shift in judicial councils: when there is a mixed composition of judicial councils, for the selection of judge members, the standards provide that judges are to be elected by their peers (following methods guaranteeing the widest representation of the judiciary at all levels) and that political authorities, such as Parliament or the executive, are not involved at any stage of the selection process. Last but not least, the four-year deadlock in the designation of the CGPJ is a matter of critical concern, which needs to be addressed as a matter of priority (for some of the consequences of this situation, see below under recommendation vi).
- GRECO concludes that recommendation v has not been implemented.
Recommendation vi
- GRECO recommended that objective criteria and evaluation requirements be laid down in law for the appointment of the higher ranks of the judiciary, i.e. Presidents of Provincial Courts, High Courts of Justice, the National Court and Supreme Court judges, in order to ensure that these appointments do not cast any doubt on the independence, impartiality and transparency of this process.
- GRECO assessed this recommendation as partly implemented in the Second Compliance Report. While GRECO acknowledged the steps taken to increase transparency in the appointment system of the highest ranks of the judiciary, it considered that more could be done to streamline the applicable requirements and procedures in this domain via further legislative/regulatory action, including by addressing areas which have proven challenging in practice.
- The authorities of Spain indicate that, since the renewal of the General Council of the Judiciary (CGPJ) has not taken place, there is nothing new to report in this area.
- GRECO regrets the lack of any new development in this domain. It further notes that, following a reform in March 2021 specifying the ad interim regime for the General Council for the Judiciary (Organic Law 4/2021), the acting Council cannot proceed to make appointments for top judicial positions3 . This is a most troubling situation.
- GRECO concludes that recommendation vi remains partly implemented.
Corruption prevention in respect of prosecutors
Recommendation ix
- GRECO recommended (i) reconsidering the method of selection and the term of tenure of the Prosecutor General; (ii) establishing clear requirements and procedures in law to increase transparency of communication between the Prosecutor General and the Government; (iii) exploring further ways to provide for greater autonomy in the management of the means of the prosecution services.
- GRECO considered this recommendation as partly implemented in previous compliance reports. It acknowledged that component i of the recommendation had been addressed – although it resulted in no change in the method of selection and the term of tenure of the Prosecutor General, a long-standing concern tainting the perception of autonomy of the prosecution service in Spain. GRECO called for additional action to fully meet components ii – transparency of communication with the Government, and iii – autonomy of management (staff allocation in the different prosecutor’s offices).
- In the context, of the planned reform of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal), aimed at establishing the leading role of prosecutors at the pre-trial stage (fase de instrucción), GRECO reiterated the need for further reflection on the additional safeguards that could be introduced in the Spanish prosecution system to shield it from undue interference and encouraged the authorities to think expansively in this respect.
- The authorities of Spain now indicate that the Regulation of the Prosecution Service (Royal Decree 305/2022), which was adopted on 3 May 2022, establishes rules regarding the internal autonomy of the prosecution service, as indicated in the third component of recommendation ix. Its adoption is of particular relevance given that the previous one dated from 1969, prior to the enactment of the Spanish Constitution and the Organic Statute of the Prosecution Service (OSPS). This Regulation includes a reference to the definition, the constitutional nature, the guiding principles of the institution and the determination of the legal framework, the classification of the various categories that make up the prosecutorial career, and the regulation of the acquisition and loss of the status of member of the prosecution service. Also, the administrative situations, leaves, duties and rights, reassignment measures and substitutions, incompatibilities, prohibitions, and responsibilities of the members of the prosecution service. In particular, it provides for more flexibility for staff allocation – in this sense, Title III refers to the process for filling positions, including temporary assignments, relocations, and substitutions.
- Moreover, Article 7 of the aforementioned Regulation enshrines the principle of impartiality, pursuant to which, the prosecution service is not subject to orders, instructions, or indications. In addition, the Regulation establishes the principle of publicity, in the Official Journal (or through other publication means), of the resolutions of the Prosecutor General regarding appointments, removals and detachments, as well as the summonses or notices that according to the applicable regulations must be published.
- The authorities further report on the adoption of Royal Decree 147/2022, which regulates the system of substitutions and support or reinforcement measures within the prosecution service and establishes possible ways to replace positions within the service, as well as the procedure to follow in order to reinforce its human resources. Accordingly, Royal Decree 306/2022 provides for the enhancement of personnel of the prosecution service.
- GRECO takes note of the new measures reported and the increase of staff in the prosecution service, a welcome development in the context of the criminal justice reform. That said, GRECO understood from previous compliance reports that the authorities intended to amend the Organic Statute of the Prosecution Service (OSPS). Such amendments targeted, inter alia, some of the key issues raised in recommendation ix, including the system of appointment of the Prosecutor General and the autonomy of the prosecution service. The 2021 Annual Report of the Prosecution Service calls for a new OSPS and targeted changes in five fronts: (i) budgetary autonomy; (ii) normative autonomy; (iii) training autonomy; (iv) transparent regulation of the communications between the government and the Prosecutor General, and (v) term of tenure of the Prosecutor General (so that it does not coincide with the term of office of the Government). The aforementioned issues correspond indeed to the different components of recommendation ix and substantiate the need of further assurances of reinforced independence, transparency and autonomy of the prosecution service.
- GRECO notes, however, that the envisaged wider reform of the OSPS has not yet happened. GRECO calls on the authorities to pursue their action in this domain, including through an inclusive consultation.
- GRECO concludes that recommendation ix remains partly implemented.
Recommendation xi
- GRECO recommended developing a specific regulatory framework for disciplinary matters in the prosecution service, which is vested with appropriate guarantees of fairness and effectiveness and subject to independent and impartial review.
- GRECO assessed this recommendation as partly implemented in the Second Compliance Report: it took note of draft regulation which would, inter alia, deal with the disciplinary system of the prosecution service, but which adoption was still pending.
- The authorities of Spain now indicate that the Regulation of the Prosecution Service (Royal Decree 305/2022), which was adopted on 3 May 2022, includes inter alia specific rules on discipline (Title IX)4 . Based on the provisions of the Organic Statute of the Prosecution Service (OSPS), the Regulation sets the procedure to determine the disciplinary responsibility that members of the prosecution service may incur in for actions or omissions considered as misconduct, according to their different seriousness, and the corresponding sanctions. The authorities further stress that in cases of sexual harassment, discriminatory harassment or sex or violence-based harassment at work, the Regulation specifically establishes that disciplinary action must particularly safeguard the requirements of objectivity, confidentiality, swiftness, and security.
- The new institution of the Prosecutor for Disciplinary Action (Fiscal Promotor de la Acción Disciplinaria) is endowed with the task of initiating and carrying disciplinary proceedings, without prejudice to the power of the Chief Prosecutors to sanction, through prior warning, the commission of minor disciplinary infringements. The Public Prosecution Inspectorate (Inspección fiscal) is in charge of preliminary actions, which can urge the Prosecutor Promoting Disciplinary Action to initiate disciplinary proceedings or can decide to open informative proceedings in order to check the actions essential to verify the credibility of the reported facts. Additionally, the Prosecutor for Disciplinary Action may specify that the mentioned facts contain indications of, or may constitute, a disciplinary infringement and s/he identifies their alleged author or authors; or he/she may decide the direct submission to the competent Chief Prosecutor, in the event of a minor infringement.
- The disciplinary file is under the jurisdiction of the Prosecutor for Disciplinary Action, who will carry out all the proceedings ex officio. S/he may request the precautionary measure of provisional suspension of functions of the likely sanctioned prosecutor, when there are reasonable indications of the commission of a very serious disciplinary offence, for a period that may not exceed six months. S/he will close the file with a proposed resolution that will be submitted to the Prosecutor General and onwards to the competent authority for the imposition of sanctions, as per the provisions of Article 67 of the OSPS. The investigative phase of the disciplinary file shall not last more than one year, with the possibility of extension for another three months.
- The Regulation further elaborates on the disciplinary proceedings and its guarantees, including, non-retroactivity of unfavourable penalty provisions, adversarial process, proportionality, and culpability. It also foresees cases of recusal for the Prosecutor for Disciplinary Action and establishes counterbalance mechanisms (e.g. actions may be returned if there is a need for other evidence, which was not admitted, and was not assessed and practiced in due time) and means of appeals (internal before the Prosecutorial Council and external before the administrative court). Finally, detailed provisions are in place regarding the statute of the Prosecutor for Disciplinary Action, notably, in terms of his/her competence and powers, appointment and dismissal, and material and personal means.
- GRECO welcomes the additional rules on discipline introduced by the Regulation of the Prosecution Service. The system is similar to the one applicable to judges. GRECO recalls that the Organic Statute of the Prosecution Service (OSPS) defines specific disciplinary offences (petty, serious and very serious offences) and lays down a range of sanctions starting from warning and censure and culminating with the most serious measure of dismissal from office (see paragraphs 162-163, Fourth Round Evaluation Report on Spain). The recently issued Regulation further articulates disciplinary proceedings, including through the creation of the so-called Prosecutor for Disciplinary Action (Fiscal Promotor de la Acción Disciplinaria) who is responsible for initiating and carrying out disciplinary proceedings. The right to be heard of the prosecutor concerned, in adversarial proceedings, is preserved at all times. Appeal channels are also available.
- GRECO concludes that recommendation xi has been implemented satisfactorily.
Compliance with European Courts' Judgements
Court of Justice of the European Union (CJEU)
State Performance
0
European Court of Human Rights (ECtHR)
State Performance
Moderately poor
Implementation record
21
53 %
33
months
Judgements with pending implementation
Selected leading judgments pending implementation
Otegi Mondragon and others v Spain
The case concerns the criminal proceedings and conviction of the applicants on grounds of being members of the ETA terrorist organisation.
The European Court found that the panel of the Audiencia Nacional which examined their case lacked impartiality. The grounds for reaching this conclusion are linked to a previous set of criminal proceedings against the first applicant (Mr Otegi Mondragon), who won an appeal against a conviction on other ETA-related charges because the presiding judge had shown a lack of impartiality, and had led to a retrial in which he was acquitted. The present case was allocated to the same panel of the Audiencia Nacional which had convicted Mr Otegi Mondragón in the first set of proceedings. The European Court found that the applicants’ fears concerning the lack of impartiality of the panel were objectively justified (violation of Article 6§1).
An action report was submitted by the authorities on 10 June 2021 (DH-DD(2021)604) and was assessed. Outstanding issues are being discussed bilaterally.
In a decision on 27 July 2020, the Supreme Court upheld the revision appeal and quashed the conviction of the applicants as set out in its own judgment in the cassation appeal. The Supreme Court subsequently, on 15 December 2020, concluded in a new judgment that as the cassation appeal was unsolved and still pending, it was necessary to repeat the trial before the Audiencia Nacional in the presence of new magistrates, to give effect to the judgment of the European Court. On 28 October 2021, the Constitutional Court, on the basis of an amparo appeal lodged by the applicants’, decided to provisionally suspend the reinstatement of the proceedings for a new trial (pending its decision on the appeal).
With regard to the general measures, the Spanish authorities indicate that the European Court’s judgment reveals a wrong application of the law by the domestic courts in the instant case, without a need therefore of a legislative amendment. The judgment has been translated, published and communicated to relevant authorities.
Rule 9 communications, contesting the retrial ordered by the Supreme Court, have been received from the applicant and from the European Association of Lawyers for Democracy & World Human Rights (ELDH). For more details, see the attached submissions (DH-DD(2021)501, DH-DD(2021)600), DH-DD(2021)839 and DH-DD(2021)921).
4184/15
06-02-2019
M.D. and others v. Spain
In February 2014, the applicants, twenty serving judges and magistrates who worked in Catalonia, signed a manifesto in which they set out their legal opinion in favour of the possibility of exercising the Catalan people’s so-called “right to decide”, within the framework of the Spanish Constitution and international law. A national newspaper subsequently published an article under the headline “The conspiracy of thirty-three separatist judges”, featuring photographs and personal details of all the applicants. Criminal proceedings initiated by the applicants were ultimately dismissed.
The European Court found a violation of Article 8 of the Convention. On the one hand, it concluded that the interference with the applicants’ private life had not been in accordance with any domestic law, and the public authorities had used the personal data for a purpose other than that which had justified their collection. On the other hand, the Court was not satisfied that an effective inquiry had been carried out in order to determine the circumstances in which the journalists had gained access to the photographs of the applicants and, if necessary, to sanction the persons responsible for the shortcomings that had occurred.
An action plan was submitted on 28 March 2023. Bilateral contacts are ongoing between the Execution Department and the authorities to obtain the submission of additional updated information.
36584/17
28-09-2002
Veres v Spain
The case concerns a legal dispute between the applicant, a Hungarian national, and his ex-wife over the custody of their daughter who was born in 2006.
In 2015, the applicant’s ex-wife moved to Spain with their daughter without informing him. The applicant applied to a Hungarian court for an order that the daughter be brought back to Hungary pending a final decision in the custody proceedings. In April 2016, the order was issued. The applicant then went through lengthy proceedings in Spain so that the order could be recognised and enforced. Recognition and enforcement orders were ultimately granted by the Spanish courts, and the daughter was brought back to Hungary in November 2018.
In subsequent custody proceedings, the Budapest Metropolitan Court granted custody over the child to her mother and visiting rights to the applicant. It delivered that decision in view of, among other circumstances, the fact that the child had been living with the mother for several years and that her relationship with her was closer than that with the father. That decision became final with immediate effect.
In October 2019 the Supreme Court of Hungary varied the visiting regime in favour of the applicant, but it upheld the decision of the Budapest Metropolitan Court to grant custody over the child to the mother, considering that, all circumstances taken together, that arrangement was the most beneficial for the child.
The Court found a violation of Article 8 of the Convention due to the excessive length of the recognition and enforcement proceedings in Spain in respect of the return order of the applicant’s child to Hungary issued by a Hungarian court under EU legislation in force at the time.
An action plan or report is awaited by 8 august 2023.
57906/18
08-02-2023
Melgarejo Martinez de Abellanosa v Spain
The case concerns administrative proceedings in relation to a tax debt where, after the applicant lodged an appeal with the Audiencia Nacional alleging that the surcharge and interest should be declared null and void (because of the annulment of the main debt), his submission did not receive an express reply from the Audiencia Nacional. The Court found that the applicant’s right to a reasoned judgment had been breached (violation of Article 6§1).
The authorities submitted an action plan on 27 September 2022 (DH-DD(2022)1030), which is currently under assessment.
11200/19
14-03-2023
Atristain Gorosabel v Spain
The case concerns a violation of Article 6 §§ 1 and 3 (c) of the Convention due to the use at trial of initial statements by the applicant, a terrorist suspect held incommunicado and denied, without individualised reasons, access to lawyer of own choice and to consult with the legal-aid lawyer before the interviews.
The Court observed that the applicant’s conviction, as he also maintains, was partially based on the evidence obtained as a result of the statements made by him at the police station while being held incommunicado. In particular, those statements were essential in the discovery of the explosive material. As a result of his statements, the police found data and strong evidence that the applicant had committed the offences in question. The conviction was based mainly on the explosives and computer equipment found in the applicant’s possession, but also on other evidence, such as the incriminating statements made by co-defendants, the statements of witnesses or the applicant’s silence in response to questions from the prosecution.
The authorities submitted an action plan on 26/05/2022.
On 21 June 2022, the applicant’s representative submitted a Rule 9 communication indicating that the applicant’s request for reopening of the criminal proceedings against him had been rejected by the Supreme Court which concluded that the applicant could have been convicted also based on the evidence not affected by the European Court’s findings.
On 11 July 2022, the authorities indicated that the applicant has lodged a nullity plea (incidente de nulidad de actuaciones) against the abovementioned decision, which is still under examination by the Supreme Court. In case that this nullity plea is rejected by the Supreme Court it would be possible for the applicant to lodge an amparo appeal against that decision before the Constitutional Court. Updated information on these proceedings will be provided as soon as available.
An additional communication from the applicant was received on 12 January 2023. The authorities replied on 18 January 2023.
The Committee of Ministers also received a communication from a group of NGOs on 26 July 2022.
15508/15
09-05-2022
Portu Juanenea and Sarasola Yarzabal v Spain
The case concerns the ill-treatment suffered by the applicants, members of the terrorist organisation ETA, on 6 January 2008, during their arrest and subsequent transfer to the headquarters of the Guardia civil, and shortcomings in the criminal proceedings carried out into these events.
The European Court found that the injuries described in the medical certificates presented by the applicants had been caused while they were in the hands of the Guardia Civil. Since neither the national authorities nor the Government had provided any convincing or credible arguments to explain or justify those injuries, these were attributable to the State (substantive violation of Article 3).
The European Court also criticised the manner in which the Supreme Court had examined the applicants’ allegations of ill-treatment (procedural violation of Article 3).
Firstly, the Supreme Court had quashed the convictions of four officers of the Guardia civil by the Audiencia provincial upon reassessment of the evidence in the file. In doing so, the Supreme Court had failed to take direct evidence from the applicants and the witnesses and thus gain direct and immediate knowledge of their statements. This was not consonant with the requirements of a fait trial resulting from the European Court’s case law, considering in particular that the fresh assessment of such evidence had been decisive in the acquittal of the officers in question by the Supreme Court.
Furthermore, this Court had confined itself to dismissing the applicant’s version of the facts without considering whether the use of physical force by the officers during the arrest had been strictly necessary and proportionate, or whether the more serious injuries subsequently sustained by the first applicant were attributable to the officers responsible for his detention and supervision. Those omissions had prevented the Supreme Court from establishing the facts and all the circumstances as fully as it should have done.
An action report was submitted on 27 June 2019, followed by several revised versions, with the latest comprehensive version submitted on 25 March 2022 (DH-DD(2022)341-rev).
The Government reported that the domestic courts comply with the case-law of the European Court, including the Constitutional Court through appeals for amparo. The judgment has been translated into Spanish and disseminated among the relevant state authorities. Moreover, numerous newspapers in Spain reported on the judgment and widely disseminated its contents.
1653/13
13-05-2018
Centelles Mas and others v Spain
The case concerns the reversal in 2018 by the Court of Appeal of the applicants’ acquittal through a new assessment of the subjective elements of the crime without a fresh examination of the relevant evidence (violation of Article 6§1).
The Spanish authorities submitted an action plan on 24 October 2022.
44799
07-06-2023
Serrano Contreras v Spain (no 2)
The applicant was charged with fraud, forgery of official documents and forgery of commercial documents. He was acquitted at first instance but found guilty on appeal on points of law to the Supreme Court, which did not first hold a hearing. In a judgment of 20 March 2012, the European Court of Human Rights found a violation of Article 6 § 1 in respect of the fairness and the length of the proceedings.
On the basis of the Court’s judgment, the applicant lodged an application for a revision of the judgment with the Supreme Court. In May 2015, the Supreme Court allowed in part the application for revision and quashed the applicant’s conviction in respect of the offence of forgery of official documents but dismissed the application in respect of the other offences of fraud and forgery of commercial documents. The applicant unsuccessfully requested an annulment of the proceedings, appealing up to the Constitutional Court.
On 21 June 2023 the Spanish authorities provided an action report.
With regards to the individual measures, the authorities indicated that the conviction of the applicant was quashed by the Supreme Court following the judgment of the European Court.
With regards to the general measures, the authorities underlined that to prevent future similar violations, the General Council of the Judiciary (Consejo General del Poder Judicial) has made a specific dissemination of the judgment amongst judges and magistrates.
2236/19
26-01-2022