Spain

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.

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.

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.”

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.