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Spanish General Council of the Judiciary blockade
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Spanish General Council of the Judiciary blockade
The General Council of the Judiciary blockade was a constitutional crisis that resulted in the General Council of the Judiciary (CGPJ), the governing body of the Judiciary in Spain not being able to fulfill its functions due to the inability of the Spanish Parliament (Cortes Generales) to agree on the appointment of a new council since the term of the last council expired in 2018. The most serious of these functions that were in abeyance were the selection of the President of the Supreme Court and the appointment of judges to the Supreme Court and the Constitutional Court.
The Council has a term of five years, after which all 20 members of the council must be re-appointed. The law requires that a three fifths majority is required in the Congress for their appointment, which usually means that a consensus must be reached between the Government and the Opposition. The Opposition refused to do so principally on the grounds that they wanted to change the method of appointment (to allow some members to be appointed by the judiciary themselves) but also as a bargaining chip in negotiations on other legislation. The Government had been able to pass legislation to allow some functions of the Council to be exercised without the Council but the Council remained in abeyance for five and a half years.
The same opposition party had blocked the reappointment of the Council twice before, in 1995 until they won government and in 2006 for two years until the following general election.
After mediation by the European Commission, an agreement between the two main political parties was reached and on 25 July 2024 the new members of the Council assumed office, ending the crisis. Minor parties complained that they had not been consulted nor was the agreement debated in parliament.
The Spanish Constitution establishes that the Judiciary of Spain is governed by itself through the General Council of the Judiciary. This body, chaired by the President of the Supreme Court and made up of twenty other members, has a mandate of five years. According to the constitutional text, of the twenty members mentioned, twelve must belong to the category of "Judges and Magistrates" and eight will be "lawyers and other jurists, all of them of recognized competence and with more than fifteen years of practice in their profession." Regarding the form of election, article 122 of the Constitution establishes that the eight jurists will be chosen by the Cortes Generales, in equal parts between both chambers, while the form of election of judges and magistrates leaves it open to the legal regulation made by the legislator.
At the beginning of 1980, the Cortes approved Organic Law 1/1980, of January 10, of the General Council of the Judiciary, an organic law that developed the powers of the Governing Council of judges. This law, in its twelfth and subsequent articles, established that the twelve judges and magistrates would be elected by the judges and magistrates themselves through a personal, equal, direct and the principle of a secret ballot. The law was definitively approved by the Congress of Deputies on December 28, 1979, with 258 votes in favour (mainly UCD and PSOE), 17 against and two abstentions.
Five years later, in 1985, the definitive Organic Law of the Judiciary was approved, which repealed the previous organic norm of 1980 and integrated it into this one. The main novelty that it brought with it was the modification of the system of these twelve judges and magistrates, who from the entry into force of the new law began to be elected — like the other eight members— by reinforced majorities —three fifths— of the Congress of Deputies and the Senate. This idea, initially discarded, was supported by the Spanish Socialist Workers' Party (PSOE) — which at that time had 202 seats— considered that the judiciary had a "conservative structure" and that the "parliamentary majority" should weigh more. The law was definitively approved by Congress on 28 March 1985 with 188 votes in favour, 65 against, and three abstentions.
This new law was appealed by the most conservative sector of Parliament, considering that there was a risk of "politicization", as well as by the General Council of the Judiciary itself, presenting various conflicts of competences. Its unconstitutionality was ruled out by the Constitutional Court in two judgments of 1986 (STC 45/1986, of April 17, and STC 108/1986, of July 29). Undoubtedly, the most relevant is 108/1986, which deals in depth with the question related to the election system. In this judgment, the High Court, although it sees coherence in the arguments of the appellants that there could be an implicit limit in the Constitution by establishing that eight of the members must be elected by the Cortes, while this is not the case for the twelve judges and magistrates, It is also true, according to the Court, that the text does not prohibit Parliament from legally appropriating that capacity. Likewise, the constitutional magistrates continue, the resolution of this ambiguity does not find a clear answer in the debate on the elaboration of the Constitution itself. After analysing the spirit of the regulation, the court considers that it is intended to "ensure that the composition of the Council reflects the pluralism existing within society and, especially, within the Judiciary" and that the risk of politicization would not only exist with a parliamentary election, but also with a "corporate election" among the judges and magistrates themselves, which could cause "the electoral procedure to transfer the existing ideological divisions in society to the heart of the Judicial Career."
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Spanish General Council of the Judiciary blockade
The General Council of the Judiciary blockade was a constitutional crisis that resulted in the General Council of the Judiciary (CGPJ), the governing body of the Judiciary in Spain not being able to fulfill its functions due to the inability of the Spanish Parliament (Cortes Generales) to agree on the appointment of a new council since the term of the last council expired in 2018. The most serious of these functions that were in abeyance were the selection of the President of the Supreme Court and the appointment of judges to the Supreme Court and the Constitutional Court.
The Council has a term of five years, after which all 20 members of the council must be re-appointed. The law requires that a three fifths majority is required in the Congress for their appointment, which usually means that a consensus must be reached between the Government and the Opposition. The Opposition refused to do so principally on the grounds that they wanted to change the method of appointment (to allow some members to be appointed by the judiciary themselves) but also as a bargaining chip in negotiations on other legislation. The Government had been able to pass legislation to allow some functions of the Council to be exercised without the Council but the Council remained in abeyance for five and a half years.
The same opposition party had blocked the reappointment of the Council twice before, in 1995 until they won government and in 2006 for two years until the following general election.
After mediation by the European Commission, an agreement between the two main political parties was reached and on 25 July 2024 the new members of the Council assumed office, ending the crisis. Minor parties complained that they had not been consulted nor was the agreement debated in parliament.
The Spanish Constitution establishes that the Judiciary of Spain is governed by itself through the General Council of the Judiciary. This body, chaired by the President of the Supreme Court and made up of twenty other members, has a mandate of five years. According to the constitutional text, of the twenty members mentioned, twelve must belong to the category of "Judges and Magistrates" and eight will be "lawyers and other jurists, all of them of recognized competence and with more than fifteen years of practice in their profession." Regarding the form of election, article 122 of the Constitution establishes that the eight jurists will be chosen by the Cortes Generales, in equal parts between both chambers, while the form of election of judges and magistrates leaves it open to the legal regulation made by the legislator.
At the beginning of 1980, the Cortes approved Organic Law 1/1980, of January 10, of the General Council of the Judiciary, an organic law that developed the powers of the Governing Council of judges. This law, in its twelfth and subsequent articles, established that the twelve judges and magistrates would be elected by the judges and magistrates themselves through a personal, equal, direct and the principle of a secret ballot. The law was definitively approved by the Congress of Deputies on December 28, 1979, with 258 votes in favour (mainly UCD and PSOE), 17 against and two abstentions.
Five years later, in 1985, the definitive Organic Law of the Judiciary was approved, which repealed the previous organic norm of 1980 and integrated it into this one. The main novelty that it brought with it was the modification of the system of these twelve judges and magistrates, who from the entry into force of the new law began to be elected — like the other eight members— by reinforced majorities —three fifths— of the Congress of Deputies and the Senate. This idea, initially discarded, was supported by the Spanish Socialist Workers' Party (PSOE) — which at that time had 202 seats— considered that the judiciary had a "conservative structure" and that the "parliamentary majority" should weigh more. The law was definitively approved by Congress on 28 March 1985 with 188 votes in favour, 65 against, and three abstentions.
This new law was appealed by the most conservative sector of Parliament, considering that there was a risk of "politicization", as well as by the General Council of the Judiciary itself, presenting various conflicts of competences. Its unconstitutionality was ruled out by the Constitutional Court in two judgments of 1986 (STC 45/1986, of April 17, and STC 108/1986, of July 29). Undoubtedly, the most relevant is 108/1986, which deals in depth with the question related to the election system. In this judgment, the High Court, although it sees coherence in the arguments of the appellants that there could be an implicit limit in the Constitution by establishing that eight of the members must be elected by the Cortes, while this is not the case for the twelve judges and magistrates, It is also true, according to the Court, that the text does not prohibit Parliament from legally appropriating that capacity. Likewise, the constitutional magistrates continue, the resolution of this ambiguity does not find a clear answer in the debate on the elaboration of the Constitution itself. After analysing the spirit of the regulation, the court considers that it is intended to "ensure that the composition of the Council reflects the pluralism existing within society and, especially, within the Judiciary" and that the risk of politicization would not only exist with a parliamentary election, but also with a "corporate election" among the judges and magistrates themselves, which could cause "the electoral procedure to transfer the existing ideological divisions in society to the heart of the Judicial Career."