- The Constitution is our Fundamental Law that gives shelter to all Spaniards.
- The Constitution is also used to attack the political adversary.
The Law
In the Preamble of our Fundamental Law, approved by referendum in 1978, the following is stated:
- The Spanish Nation, wishing to establish justice, liberty and security and to promote the good of those who comprise it, in exercise of its sovereignty, proclaims its will to:
- Guarantee democratic coexistence within the Constitution and the laws in accordance with a fair economic and social order.
- Consolidate a rule of law that ensures the rule of law as an expression of the popular will.
- Protect all Spaniards and peoples of Spain in the exercise of human rights, their cultures and traditions, languages and institutions.
- Promote the progress of culture and the economy to ensure everyone a decent quality of life.
- Establish an advanced democratic society, and
- Collaborate in the strengthening of peaceful relations and effective cooperation between all the peoples of the Earth.
Title VII of the Constitution is what determines how the constitution, operation and government of the Courts and Tribunals should be, including the General Council of the Judiciary.
Section 3 of Article 122 of our Constitution says the following:
The General Council of the Judiciary will be made up of the President of the Supreme Court, who will preside over it, and by twenty members appointed by the King for a period of five years. Of these, twelve between Judges and Magistrates of all judicial categories, in the terms established by the organic law; four at the proposal of the Congress of Deputies, and four at the proposal of the Senate, elected in both cases by a majority of three fifths of its members, among lawyers and other jurists, all of them of recognized competence and with more than fifteen years of practice in their profession.
The Constitution and Justice: How the Judiciary has been deteriorating in this Legislature
The situation of Justice
Throughout this legislature, vacancies have been produced in various high courts of the State, some due to death, others due to resignation from office, others due to retirement. The delay in the renewal of the General Council of the Judiciary (CGPJ) due to the lack of political agreement between the PSOE and the Popular Party, between the Government and the Opposition, is already worryingly affecting the situation of the government chambers of the courts, due to the impossibility of renewing the positions of the judicial leadership that are retiring.
Since the negotiations between PSOE and PP began in December 2018 to renew the vacant posts in the high courts of the State, the impossibility of reaching agreements between both parties, has made the Governing Bodies of the judges have their ability to act blocked. appointment, except for the two Magistrates of the Constitutional Court who were renewed in September.
This interim situation has reached such a point that today there are at least 69 vacancies in the high courts of the State.
The breakdown of the negotiations between the PP and PSOE to renew the General Council of the Judiciary (CGPJ), is much more than a political disagreement. It affects the functioning of the entire judiciary. The governing body of judges has had its mandate expired for four years and almost 20 months without making appointments. He is prevented from doing so by a legislative reform that the Socialist Executive approved to prevent him from appointing new senior positions while he was still in office. Subsequently, the Socialist Group presented this bill on June 24 in order to partially amend the reform of the Organic Law of the Judiciary (LOPJ) approved in March 2021 at the initiative of the Government, which prevents the CGPJ from make discretionary appointments in the judicial leadership with the mandate expired, a situation in which it has been since December 2018.
The processing of the normative modification was carried out through the single reading system, which means that it did not go through either the presentation or the Justice Commission, and the text was sent to the Senate for its final approval in the following week. .
As a consequence of what has been said, there are 69 vacancies in the judicial leadership and a Supreme Court on the verge of collapse that dictates up to a thousand fewer sentences a year. This situation is unsustainable, since it has 17 unfilled positions out of the 79 that comprise it, to which three new casualties could soon be added, which would mean that the high court would have 25% of its positions unfilled.
But these high courts are not the only ones that are worrying. There is more:
- In the Contentious-Administrative Chamber, The law states that it must be made up of 33 magistrates, including the president, but at the moment it only has 24 members, nine less than what is established. At the end of the year there will be a new discharge, since the retirement of a new Magistrate is scheduled.
- The Military Chamber retains six of the eight magistrates that must compose it. Within a year there will be five, since it will produce a new retirement.
- Vacancies are also expected to increase in the Fourth Social Chamber. Specifically, if the current situation continues, in October 2022 they will account for 38% of its staff of magistrates -including its current president-, according to the Supreme Court report.
- The Civil Chamber has nine members, so it only has one vacancy.
- The Criminal Chamber retains its 15 magistrates, but will suffer the first departure in April with the retirement of Miguel Colmenero.
If we add to this panorama what happens in the Autonomous Courts, the picture is much more somber. Let’s see:
- We have to add the unfilled places in the territorial judicial leadership: superior courts, provincial courts and even one in the National Court. There are a total of 52 positions that do not have their holder, according to the data provided by the CGPJ. Of the majority of the deserted squares, nine are in Andalusia. Among them, the presidency of its Superior Court of Justice and the presidents of the Social Chamber of the aforementioned court both at the Seville and Granada headquarters.
- In Castilla y León there are six vacancies, including that of the president of the regional Superior Court of Justice. The same as in La Rioja, where the casualties reach five. In Aragon, the Canary Islands and Castilla-La Mancha, four senior Justice positions are not covered. Valencia, the Basque Country, Murcia and Catalonia have three vacancies, while Madrid and Extremadura only have two. In the rest of the autonomies one is missing.
Consequences of the current situation of Justice
Well, the lack of coverage implies that a thousand fewer sentences are handed down per year among the five Supreme Court chambers and the response times on substantive issues are lengthened. The decisions of inadmissibility are also delayed, which are very numerous, and which according to a report by the Supreme Court, “are counted in several tens of thousands a year, with the serious damage that this entails both for the defendant and for the image of Justice in the citizen conscience”, adds the document. The situation has an enormous repercussion at all levels of the jurisdictional steps.
The renewal of the members of the Supreme Court depends on reaching an agreement between the main parties to renew the CGPJ. According to article 345 of the Law on the Judiciary, for a magistrate to become part of the Supreme Court and fill one of its vacancies, he will have to gather “sufficient merits in the opinion of the General Council of the Judiciary.” Therefore, the role of the CGPJ in the appointment of Supreme Court magistrates “is that of the main actor.” However, the Council’s capacities were limited in 2021 through the law on the legal regime applicable to the acting CGPJ, as previously stated.
The question then would be: who or who can we point out as guilty?
A blockage of this renewal due to the lack of an agreement between the PP and the PSOE who accuse each other, is the cause, since its renewal requires a qualified majority of three fifths of the Chambers, and it is what is causing this pattern of our judicial system. When one listens to politicians, one finds that some blame others and vice versa. They spend more time accusing each other than negotiating a solution, and that’s how it goes.
And what are the reasons?
Well, the power to keep the Judiciary under control from the Political Power in exercise. This is the root of the problem. The PP refuses to renew the positions of the CGPG, the Constitutional Court and the Supreme Court because until now it had a conservative majority that it does not want to lose, because by its sentences it can change and suppress the meaning of certain laws by the Constitutional Court , or influence the direction of certain sentences handed down in the Supreme Court, so that given the majority that the Government presents in Congress, which would allow it to move forward with the candidates proposed by the left, if it succeeded in renewing these positions, it would obtain the left control the high courts.
On the other hand, the Popular Party, what it intends is to delay the process until after new elections, which it thinks it can win, if it manages to have a majority of the conservative vote in Parliament, allows it to renew the courts that would maintain the conservative predominance of these, and therefore they would have control of the meaning of the sentences that were handed down.
This is the heart of the matter, which could only be avoided if the politicians took their dirty hands out of judicial affairs, and let the judges choose among themselves the most suitable for each vacancy to be appointed, but this would make the politicians lose any control capacity over the Governing Bodies of the Judiciary, which is a lot to lose, and over what is legislated by the National Parliament and the Autonomous Parliaments, which we must not forget are the Courts, the Third Power of the State, therefore a counterpower to the Executive , which is supposed to be independent of the previous one, and I say that it is supposed, because currently it has little to do with being independent.
The fact is that one of the reasons why politics exists is to solve problems like this in the Judiciary, but “Spain is different”, they point out to us from abroad, and well that we apply the saying to ourselves. Politics, or rather, politicians of both sides, have gotten us into this mess that is damaging coexistence in the country, which is also becoming dangerously polarized in this regard, due to the incompetence of one and the other to reach agreements that They would be very good for Spain, but above all for those Spaniards who are waiting for a judicial resolution of their problem.
There is no law, and I say it in both senses, in that if there is no justice, the law cannot be applied, and in that we Spaniards have the right to receive justice from the courts, because our Constitution, as It says in its Preamble, “it guarantees democratic coexistence within the Constitution and the laws in accordance with a just economic and social order, and consolidates a Rule of Law to ensure the rule of law as an expression of the popular will”, and this It is precisely what we Spaniards do not have insured at this time.
Again I repeat to myself the previous question: who or who can we point out as guilty?
Well, I think that this blame must be assumed by the Spanish, all of us, because we are all voters with our vote. We are the ones who choose those who make the laws, we are the ones who choose those who govern us. If we choose the most incompetent, what we can expect from them is incompetence. If we choose better next time, if we try “not to put a fox in the pen that can eat the chicks”, we would not have this serious problem. But the solution is in our hands: let’s vote better if there is someone to vote for, and if not, let’s stay at home and may God have mercy on Spain, our Constitution, and the Spanish people.
Source: The Spanish Constitution
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