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A forced resignation and a controversial appointment: what happens with the Justice in Spain?

Spain faces an unprecedented crisis in the country’s judiciary, gestated for four years and crystallized with the resignation of Carlos Lesmes from the Presidency of the General Council of the Judiciary (CGPJ), the governing body of judges. Lesmes formalized his resignation on Monday in October, after nine years in office, the last four with his constitutional mandate expired.

His resignation represents a turning point in the unprecedented situation that Justice is experiencing in the country. It leaves two acting substitutes, a bicephaly not contemplated by the Spanish Constitution, an appeal before the Supreme Court and some political parties portrayed for their inaction, since their lack of agreement has caused the renewal that should have occurred in 2018 has not yet taken place.

Lesmes’s resignation came in an unusual way, with an institutional public message. “With all hope of rectification lost and in the face of the patent deterioration of the Supreme Court and the General Council of the Judiciary, which I cannot avoid, my presence at the head of these institutions is no longer useful, and would also be contrary to my own professional conscience“, Lesmes maintained in his message.

In addition, he said that continuing to lead this responsibility “can only serve” to convert him “in complicity” in a situation that he abhors and “which is unacceptable”, since the current situation “seriously compromises the prestige and functioning of the entire justice system”.

Lesmes announced that he will return to active service in the judicial career as a magistrate in the Supreme Court.

How did this situation come about?

The delicate situation of the Justice in Spain, with a expired body of Power, which even so has continued to make appointments, some of them for life, and with a part his paralyzed work, has been brewing over the last four years.

To understand the current scenario it is necessary to know the rudiments of the operation of this power in Spain. The Constitution establishes that the CGPJ will be made up of the president of the Supreme Court, a position that also fell to Lesmes and whom he has also resigned, and by others 20 members with a mandate all of them for five years.

Of those 20 members, twelve must be appointed from among judges and magistrates of all judicial categories , while of the rest, four must be appointed at the proposal of Congress and four at the proposal of the Senate, between lawyers and jurists with more than fifteen years of practice. In both cases, a majority of three-fifths of both legislative chambers must be reached.

One of the main problems lies in this last requirement, since that this majority requires the agreement of the two main political parties in the country, the Socialist Party and the Popular Party (PP).

The eight jurists are sought directly by parties among people they trust, while the others 12 Magistrates are proposed by the CGPJ through an internal process in which are presented as candidates active judges who have the endorsement of 12 judges or one of the four judicial associations in the country.

In December of 2018 the renewal of this constitutional body should have taken place, so in September of that year the CGPJ sent a list of 51 candidates for Parliament and Congress launched the renewal process of the CGPJ with appearances of the ca data. Then the negotiation between the political parties began to reach an agreement.

The leak of a WhatsApp dynamites the process

In the middle of November 2018 it seemed that had reached a pact between socialists and PP, which included the appointment of 11 members proposed by the former, nine by the latter, and Manuel Marchena as president of the General Council of the Judiciary, a position that also entails the Presidency of the Supreme Court.

However, a few days later, a WhatsApp audio of Ignacio Cosidó, then a PP senator, was leaked, in which he bragged with his fellow party members of that with this pact, thanks to the Presidency of Marchena, they would control the Second Chamber of the Supreme Court “from behind” . This room judges the parliamentarians and the ministers of the Government of Spain and to which former leaders of the PP could arrive as defendants.

The leaking of this audio caused such a stir that immediately afterwards Marchena published a letter in which, given the doubts that hung over judicial independence, he resigned from the Presidency of the CGPJ.

These events considered the pact between the two political formations and the process broken, even in the absence of the appearance of two candidates, was suspended.

Four years of blockade

In 2013, the last of his constitutional mandate, Carlos Lesmes gave a farewell speech. A speech that would be repeated in 1996, 2020 Y 2021. During all this time, the renewal of this body has been blocked.

The main obstacle has been the conditions that one party and the other have tried to impose on the other. Thus, at first, the PP refused to allow United We Can, a formation member of the Government, to participate in the negotiations. While during all this time one and the other have introduced unacceptable candidates for the other due to their excessively marked ideological bias.

However, it seemed that at the beginning of this year popular and socialists finally managed to reach an agreement. But the internal crisis that the PP experienced, which ended up deposing its leader, Pablo Casado, put an end to it. The new leadership, headed by Alberto Núñez Feijóo, refused to comply with the agreement committed by the previous leadership of his party.

In this scenario many voices clamored for the resignation of all the members of the CGPJ en bloc to force the pact, a path finally followed by Lesmes.

However, a waiver in mass would harm the citizens. The CGPJ appoints the members of the Supreme Court, the country’s highest jurisdictional body, and the rest of the judicial leadership, which is why the political forces are so interested in placing similar magistrates in these positions. But it also decides the licenses and permits of the judges, their transfers, substitutions, service commissions, promotions, training or disciplinary sanctions. So that its complete paralysis would at the same time stagnate the judicial functioning of the country.

Thus, what many jurists have been demanding for some time is that the mode of designation of these members be changed, to prevent situations like this occur periodically. In fact, it is not the first time that a blockade of this type has taken place, but it has been experienced before whenever the Popular Party has been in opposition, although never in such a prolonged way.

The current situation gave rise to a regulatory change in 2018, so that an acting CGPJ could not make appointments. Until then, the Council had continued to make appointments, many of them for life, and it was criticized that they were made by a CGPJ appointed by a parliamentary majority that no longer responded to the current popular will.

The Legacy of Lesmes

Carlos Lesmes has been at the head of the judges’ governing body for almost nine years. With almost four decades of professional career, most of his active years have been held in positions to which he was promoted by the Popular Party.

After eight years working as a prosecutor, in 1993 leaves the Prosecutor’s Office and becomes a magistrate . In 1993 was incorporated as high position of the Ministry of Justice in the Government of the popular José María Aznar, where he remained the 8 years that Aznar remained in the Government.

After Zapatero’s victory, Lesmes left the Government and a few months later he was appointed president of the Contentious-Administrative Chamber of the National High Court. By then he had served less than four years as a judge, however he was appointed on a discretionary basis by the members of the CGPJ, who appointed to that position a senior official from the same government that had appointed them four years earlier.

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In 2010 the members appointed by the PP promoted him again, this time to the Contentious Chamber- Administrative of the Supreme Court. This appointment was controversial because the requirements were to have at least 15 years of experience in the judicial career, of which at least 10 were to be as a magistrate. Lesmes at that time had served as a magistrate for just over 8 years, not counting his background as a prosecutor or as a senior government official. In 2013 he came to the position of the one who has just finished to resign.

After nine years governing the judges, Lesmes leaves pending the renewal of the Constitutional Court and an overwhelming majority of conservative magistrates in the Supreme Court, the National Court and other higher courts.

Thus, the appointments that Lesmes has promoted have mainly benefited magistrates related to the Popular Party, many of whom will have to decide on resources that the PP has filed against progressive legislation, such as equal marriage or the reform of the abortion law, or in cases in which there are imputed politicians.

The lifetime nature of many of these positions and the The age of some of the people who have been appointed will practically guarantee two decades of conservative predominance in the leadership of the judiciary in Spain.

This is what interpreted the Jewish associations Francisco de Vitoria (AJFV) and Judges for Democracy (JJpD), who appealed those appointments made by the interim CGPJ, an appeal that was finally dismissed by the Third Chamber of the Supreme Court, which ordered the associations to pay costs.

Who governs the judiciary now?

Last Thursday Rafael Mozo he was appointed substitute for Carlos Lesmes, as he was the oldest member of the CGPJ. The decision taken by the Plenary of the Council collides with the technical report commissioned by Lesmes. So much so that one of the members, Wenceslao Olea, has appealed the plenary agreement before the Supreme Court.

On the one hand, supporting Lesmes’ thesis, Olea maintains that the substitute should be Francisco Marín, a magistrate of the Supreme Court who has already He is replacing Lesmes in the Presidency of this court in his capacity as the oldest president of the Chamber.

On the other hand, Olea points out that this bicephaly (Marín in the Supreme Court and Mozo in the CGPJ) is not admissible and is unconstitutional and that there can only be one president who chairs both bodies.

For its part, the anomalous situation seems to have spurred the PP and PSOE to resume negotiations that were until now non-existent two weeks ago. The President of the Government, Pedro Sánchez, and the leader of the PP, Alberto Núñez Feijóo, met last Monday in La Moncloa, an image that has not been seen for six months.

It is rumored that The negotiations are advancing and an agreement could be reached shortly. In addition, although there are still many fringes to finish off, there could be an agreement in principle on a reform to give more weight to judges in the election of the members of the CGPJ and avoid political blockades like the current one.

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