The General Council of the Judiciary in 25 questions - Author: Joaquín Delgado Martín. Magistratua. Magistrate. General Council of the Judiciary ...
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The General Council
of the Judiciary in 25
questions
Author: Joaquín Delgado Martín. Magistratua. Magistrate. General Council
of the Judiciary Lawyer.
The General Council of the Judiciary of Spain
INDEX
1.- THE JUDICIAL INDEPENDENCE................................................................................................. 3
QUESTION 1.- WHY IS THE INDEPENDENCE OF JUDGES IMPORTANT?...................................................... 3
QUESTION 2.- WHAT DOES THE INDEPENDENCE OF JUDGES MEAN?....................................................... 3
2.- THE GOVERNMENT OF THE JUDICIARY IN THE WORLD................................................. 4
QUESTION 3.- WHAT MODELS OF GOVERNMENT OF THE JUDICIARY ARE THERE IN THE WORLD? .......... 4
QUESTION 4.- WHAT DOES THE ASSIGNMENT OF THE GOVERNMENT FUNCTIONS OF THE JUDICIARY
TO A SPECIFIC AUTONOMOUS BODY OF A PROFESSIONAL NATURE –THE COUNCIL- CONSIST OF? .......... 7
3.- THE SPANISH SYSTEM OF GOVERNMENT OF THE JUDICIARY...................................... 8
QUESTION 5.- WHAT IS THE HISTORICAL BACKGROUND OF THE GENERAL COUNCIL OF THE
JUDICIARY? ............................................................................................................................................ 8
QUESTION 6.- WHAT IS THE CONFIGURATION OF THE GOVERNMENT SYSTEM OF THE JUDICIARY IN
SPAIN AT THE MOMENT? ........................................................................................................................ 9
4.- THE GENERAL COUNCIL OF THE JUDICIARY: CONCEPT, NATURE AND
FUNCTIONS.......................................................................................................................................... 11
QUESTION 7.- WHAT IS THE GENERAL COUNCIL OF THE JUDICIARY?.................................................. 11
QUESTION 8.- WHAT IS THE OBJECT OF THE GENERAL COUNCIL OF THE JUDICIARY? ......................... 12
QUESTION 9.- WHAT INSTRUMENT IS IT PROVIDED WITH FOR THE EXECUTION OF ITS COMPETENCES?14
QUESTION 10.- WHAT ARE THE RULES THAT REGULATE THE GENERAL COUNCIL OF THE JUDICIARY?17
5.- COMPOSITION............................................................................................................................... 18
QUESTION 11.- HOW MANY MEMBERS ARE THERE IN THE GENERAL COUNCIL OF THE JUDICIARY?.... 19
QUESTION 12.- WHERE DO THE MEMBERS OF THE GENERAL COUNCIL OF THE JUDICIARY COME
FROM? .................................................................................................................................................. 20
QUESTION 13.- WHO APPOINTS THE MEMBERS OF THE COUNCIL? ....................................................... 21
QUESTION 14.- WHAT IS THE PROCEDURE TO APPOINT THE MEMBERS OF THE GENERAL COUNCIL OF
THE JUDICIARY? ................................................................................................................................... 21
QUESTION 15.- WHAT SCHEME DO THE MEMBERS OF THE COUNCIL SUBMIT TO?................................ 23
QUESTION 16.- WHAT LENGTH OF TIME ARE THE MEMBERS OF THE GENERAL COUNCIL OF THE
JUDICIARY APPOINTED FOR? ................................................................................................................ 24
6.- COMPETENCES ............................................................................................................................. 24
QUESTION 17.- WHAT ARE THE COMPETENCES OF THE GENERAL COUNCIL OF THE JUDICIARY TO
GUARANTEE THE INDEPENDENCE OF THE JUDGES?............................................................................... 25
QUESTION 18.- WHAT ARE THE COMPETENCES OF THE GENERAL COUNCIL OF THE JUDICIARY IN
RELATION TO THE ORGANIZATION AND PERFORMANCE OF THE SYSTEM OF JUSTICE?.......................... 27
QUESTION 19.- WHAT ARE THE COMPETENCES OF THE GENERAL COUNCIL OF THE JUDICIARY IN THE
SCOPE OF ITS RELATIONSHIP WITH OTHER NATIONAL INSTITUTIONS? ................................................. 30
QUESTION 20.- WHAT COMPETENCES HAVE BEEN AWARDED TO THE GENERAL COUNCIL OF THE
JUDICIARY CONCERNING THE INTERNAL ORGANIZATION AND PERFORMANCE?................................... 31
QUESTION 21.- WHAT OTHER COMPETENCES DOES THE LAW AWARD TO THE GENERAL COUNCIL OF
THE JUDICIARY? ................................................................................................................................... 32
7.- ORGANIZATION AND PERFORMANCE .................................................................................. 33
QUESTION 22.- WHAT IS THE INTERNAL STRUCTURE OF THE GENERAL COUNCIL OF THE JUDICIARY?33
QUESTION 23.- HOW DOES IT WORK?................................................................................................... 34
QUESTION 24.- WHAT AUTHORITIES BELONG TO THE GENERAL COUNCIL OF THE JUDICIARY? .......... 36
QUESTION 25.- WHAT ARE THE TECHNICAL BODIES OF THE GENERAL COUNCIL OF THE JUDICIARY
AND HOW ARE THEY ORGANIZED?........................................................................................................ 43
8.- COMPLEMENTARY INFORMATION ....................................................................................... 47
8.1.- INFORMATION IN THE WEB SITE .................................................................................................. 47
8.2.- BASIC BIBLIOGRAPHY .................................................................................................................. 48
Joaquín Delgado Martin -2-
The General Council of the Judiciary of Spain
1.- THE JUDICIAL INDEPENDENCE
Question 1.- why is the independence of judges important?
Faced with the violation of a right recognized by the legislation (conflict)
originated by the action of an individual or a public institution, the State must be
capable of protecting the citizen who holds the right; this protection is applied by
granting a public body the power to solve the conflict through the implementation
of the Law (jurisdictional or judicial duty).
It consists of a State duty strictly necessary both, to prevent that people
solve the conflict by their own means, making coexistence easier, and to protect
the citizens against the abuse of the public authorities. In one word, it is relevant
to supervise the legitimate rights and interests of the people and of the firms, as
well as to control the governing authorities’ actions to guarantee their full
submittal to the Law.
“The independence of the judges in the exercise of the duties that have been
assigned to them and their freedom in the face of all type of interference from
any other power holder represents the final stone in the building of the lawful
constitutional democratic State” (LOEWENSTEIN)
In a Lawful State with a democratic performance it should be possible to
demand the resolution of a conflict, after the process of a trial with full guarantees
(just and proper trial), by a public body that is an impartial or neutral body to the
parts and to other public bodies (independence). This function is granted to the
Judge as a State body and his independence is guaranteed: it does not mean
guaranteeing independence as an end in itself, but as a means to safeguard the
impartiality of the judging person.
The independence is a “necessary condition in order for the Justice to be able to
perform in a specific case” (SERRA DOMÍNGUEZ)1
Question 2.- What does the independence of judges mean?
When a judge solves a case, he must be exempt or free of foreign influences
and interventions in the compliance of his duties, whether they come from the
government, the parliament, the electorate or the public opinion2, or even if they come
from the government bodies of the judiciary themselves3, or from the other judges4.
1
Manuel SERRA DOMÍNGUEZ, “Constitución y designación del Consejo General del Poder
Judicial (Constitution and designation of the General Council of the Judiciary)”, within the
collective work “El Gobierno de la Justicia. El Consejo General del Poder Judicial (The
Government of the Justice. The General Councils of the Judiciary)”, edited by the University of
Valladolid, Valladolid, 1996, pages 173 and followings.
2
Karl LOWENSTEIN, “Constitution Theory”, mentioned work, page 295.
3
According to article 4 of the Statute of the Latin American judge, “within the exercise of
jurisdiction, judges are not subject to higher legal authorities, without prejudice to the right of the
later to revise the jurisdictional decisions through the claims legally established, and the power
that each national legal system confers on the jurisprudence and on the precedents issued from
Joaquín Delgado Martin -3-
The General Council of the Judiciary of Spain
A democratic State must establish all the necessary mechanisms to
guarantee such independence: some of them refer to the statute of the Judge,
understood as the set of rights and obligations that affect him in the exercise of
the legal performance (incompatibilities and prohibitions, immovability…); and
some others refer to the State architecture itself, in such a way that a guarantee
exists as to the fact that no other public authorities might influence a judge when
he is taking a decision within the exercise of his duties.
2.- THE GOVERNMENT OF THE JUDICIARY IN THE WORLD
Question 3.- What models of government of the judiciary are there in the
world?
There are three models of government of the judiciary within the
democratic States:
• MODEL A: ASSIGNMENT TO A LEGAL BODY
o Through this model, the high judicial body in the country (High
Court or Supreme Court) gathers the jurisdictional function and
the Supreme Courts and Supreme Tribunals”; this Estatuto was approved by the IV Latin
rd th
American Legal Summit celebrated in Santa Cruz de Tenerife (Spain) on 23 and 25 May 2001.
4
Article 7 of the Latin American Code of Legal Ethics states that “the judge not only is required to
be ethically independent but also not to interfere in the independence of other colleagues”; this
Code was approved by the XIII Latin American Legal Summit, which took place in the Dominican
st nd
Republic on 21 and 22 May 2006.
Joaquín Delgado Martin -4-
The General Council of the Judiciary of Spain
the governing function in relation to the remaining National
bodies5.
o This model is well extended in America, due to the influence of
the United States’ system.
o It emerges in relation to the original system in which there is no
such a thing as a legal career (there is no career promotion),
and in which judges are appointed for life and are selected
between jurists (lawyers…) with a prestigious professional life.
o It is provided with different modalities, which depend on the way
the members of the Supreme Tribunal or Court are appointed:
by the legislative branch of government (Costa Rica), by the
government with the approval of the legislative branch
(Panama), by popular election or by the Governor (several of
the USA States); with a possible previous proposal from the
Supreme Court (Chile) or by a body created to that effect and
consisting of judges (Venezuela)
• MODEL B: ASSIGNMENT TO A NON LEGAL BODY
o Government duties are assigned to an executive branch of the
government body (normally the Department of Justice).
o It consists of a model belonging to continental Europe from the
time of the origin of the State regulated by the Rule of Law,
although in many countries there has been an evolution
towards the formula of the Council.
o When it originates it is linked to a judge-civil servant system that
is integrated within an Administrative career or body the access
to which is achieved through getting over some tests that certify
the required technical-legal knowledge, and within which
promotion is possible along the professional life. The Law
regulates all that is related to the rights and duties (statute) of
the judge, thoroughly. The application of the statute of the judge
concerns the executive branch, with a full submission to the
legislation6. Additionally, its decisions are open to claims before
the courts and, therefore, they are subject to judicial control.
o The executive branch is also in charge of the duties related to
the material and personal means at the service of the judicial
bodies, which traditionally concern the executive branch in the
European continental system.
• MODEL C: ASSIGNMENT TO A PROFESSIONAL AND
AUTONOMOUS BODY
o This model originates after the Second World War in several
European countries (France and Italy), as a way to guarantee
5
Manuel CARRASCO DURÁN, “Estudio comparado de la regulación constitucional del gobierno
del poder judicial en España, Portugal y los países de Iberoamérica (Comparative Study of the
constitucional reglamentation of the government of the judiciary in Spain, Portugal y the Latin
American countries)”, within the collective work “Derecho Constitucional para el siglo XX1
(Constitutional Law for the twenty-first century)”, including presentations and communications of
the VIII Latin American Congress of Constitutional Law (Sevilla, December 2005), Book II, pages
3357 and following.
6
Pablo LUCAS MURILLO DE LA CUEVA, “Modelos de Gobierno del Poder Judicial)Models of
Government of the Judiciary”, within the collective work “Ciudadanos e instituciones en le
constitucionalismo actual (Citizens and institutions within the present constitutionalism)”, editorial
Tirant Lo Blanch, pages 1039 and following.
Joaquín Delgado Martin -5-The General Council of the Judiciary of Spain
the independence of the judge in the face of possible pressures
or interferences coming from an executive branch body (the
Department of Justice) that negotiates all which concerns the
rights and obligations of the judge.
o It has later spread to different countries in Europe and America.
It has been implemented both in States that have traditionally
followed the model A of government through the executive
branch body (France, Spain), and in others that have followed
the model B of government through the judicial branch body
(Magistracy Council in Argentina)7.
o It has got several categories that will be examined at a later
stage.
There is no formula with a universal validity to guarantee the
independence of the judges; furthermore, their suitableness will depend directly
on the different political, legal and social circumstances that surround each
national system, and finally, on the political and legal culture of the country: in the
first model, it is attempted through the assignment of the government duties of
the judicial bodies themselves; in the second model, it is attempted through an
exhaustive regulation by means of the statute Law of the judges, while the
Department of Justice is limited to its mere application, complemented by the
judicial control of those application performances (the courts have a knowledge
of the appeal notice submitted by the interested party against the Department
decisions in this matter); in the third model, the guarantee of independence is
sought through the assignment of specific government functions to a professional
body that enjoys an autonomy and majorly consists of judges.
It has to be remembered that, in many countries where a Council for the
government of the judiciary has been created, the Supreme Court (model A) or
the Department of Justice (model B) still enjoy relevant governmental powers on
the legal system, which originates problems of adjustment and frictions which will
be greater or smaller depending on the legal-political culture of each country. As
an example, within model A, we may point at the existing relation between the
Supreme Court and the National Council of the Judiciary in Ecuador8.
Lastly, we must bear in mind that many States have not yet found an
optimum formula for the government of the justice to guarantee an independent
and efficient performance of the legal system, thus, it is normal to find different
specific reforms for each rule.
7
The Council of Argentina has been modified recently by means of the Law 26.080 promulgated
th
on 24 February 2006. See Ricardo HARO, “El Poder Judicial en el Estado Federal
argentino(The Judiciary within the Argentinean Federal State)”, within the collective work
“Constitutional Law for Derecho Constitucional para el siglo XXI (Constitutional Law for the
twenty-first century)”, with presentations and communications from the VIII Latin American
Congress of Constitutional Law (Sevilla, December 2005), Book II, pages 3305 and following.
8
Hernán SALGADO PESANTES, “El poder judicial en Ecuador (The judiciary in Ecuador)”, within
the collective work “Derecho Constitucional para el siglo XXI (Constitutional Law for the twenty-
first century)”, with presentations and communications from the VIII Latin American Congress of
Constitutional Law (Sevilla, December 2005), Book II, pages 3352 and following.
Joaquín Delgado Martin -6-The General Council of the Judiciary of Spain
Question 4.- What does the assignment of the government functions of the
Judiciary to a specific autonomous body of a professional nature –the
Council- consist of?
Within this system, a number of functions related to the organization and
performance of the judicial system is assigned to a professional body (consisting
of a varied range of individuals); majorly consisting of judges, although
individuals belonging to different groups, careers or interests in the judicial
system (such as lawyers, professors of legal disciplines…) do also take part in it;
this professional body usually enjoys a particular margin of autonomy for its
actions.
The Council is created with two possible aims: in the first place, to
contribute to guarantee the independence of the judiciary bodies; and, in the
second place, to extend the level of participation in the process of decision taking
that affect the legal system. Usually both aims come together, although in each
particular national judicial system one of them is more relevant than the other: for
example, in Spain (General Council of the Judiciary) the aim concerning the
guarantee of the jurisdictional independence prevails, focusing most of its
functions on the statute of the judge; while in California (Judicial Council) the aim
to propitiate the participation of judges and magistrates belonging to the different
jurisdictional grades prevails; this last aim also prevails within the magistracy
representative councils in Germany (consisting of judges only): the Präsidialrat,
which is configured as a consulting body which participates in the process of
electing the judges, and the Richterrat, also a consulting body for the general and
social questions within the members of the judiciary.
The configuration of the Councils within the international sphere varies
from country to country, depending on three factors, basically:
• Their composition (number, origin and manner of appointing their
members). While some consist exclusively of judges (for example the
Canadian Judicial Council); in other cases, the judges only conform a
majority, and individuals coming from other groups, careers or interests of
the judicial system (lawyers, professors of judicial disciplines…), or even
the representatives of other State bodies (some samples would be the
Supreme Judicial Council of Bulgaria, with the Minister of Justice, the
Presidents of the two Supreme Courts and the General Attorney taking
part in it; the Consel Supérieur de la Magistratura of France that is
presided by the President of the Republic and the Minister of Justice is its
Vicepresident; or the Italian Consiglio which, among others, consists of
three honorary members: the President of the Republic that presides it,
and the First President and the General Attorney of the Cassation Court)9
are also allowed to take part in the Council.
• The extension of their competences. While some Councils have merely
advisory functions (as happens in Germany with the Präsidialrat and the
Richterrat); others have limited competences (the Canadian Judicial
Council limits its functions to the training of judges and to the possibility to
establish codes of conduct for the judges and investigate the complaints
9
The Council of the Magistracy in Argentina (after the reform applied by Law 26.080 enacted on
th
24 February 2006) consists of three elected judges, six legislators appointed by the Parliament,
two lawyers appointed by those professionals’ direct vote, a representative of the Executive
Branch of Government, and by a representative of the academic and scientific area elected by
the National Interuniversity Council.
Joaquín Delgado Martin -7-The General Council of the Judiciary of Spain
on judicial conducts with the power to recommend the separation of the
judge to the Minister of Justice)10; and others are provided with broad
competences which, in some cases, even extend to the administration of
the material and personal means of the judicial bodies (Bulgaria,
Cyprus…).
• And their own autonomous level in the execution of their functions. In
general, the rules design mechanisms to guarantee the working autonomy
of the Council, although their efficiency varies from country to country:
different level of financial autonomy, different capacity of self-
organization…
Portugal is a particular case; there are two Councils in that country: the
Conselho Superior da Magistrtura ( for the judges of the justice courts or the
common courts) and the Conselho Superior dos Tribunais Administrativos e
Fiscais (for the contentious-administrative judges and prosecutors)11.
This system has had and is having a wide acceptance by the legislations
in the different States, and is being configured as the optimal organizational
solution both, to contribute to guarantee the independence of the judges, and to
allow for a higher participation in the process of decision-taking concerning the
organization and the performance of the judicial system (helping in the
improvement and modernization of the justice). Even in those countries where
no Council has been created, a strong autonomy is being granted to the agencies
and bodies in charge of the administration of the judicial system12.
3.- THE SPANISH SYSTEM OF GOVERNMENT OF THE JUDICIARY
Question 5.- What is the historical background of the General Council of
the Judiciary?
The General Council of the Judiciary was created by the Constitution of 1978,
following the models of other countries with which Spain enjoyed a geographic
proximity (France, Italy, Portugal), and it then represented a novelty within the
Spanish judicial system.
10
The Consiglio della Magistratura of the Swiss canton of Tesino has also a competence on the
supervision of the performance of the justice to issue a report for the Grand Consiglio, to state the
problems detected in the performance to the Government of the canton and to apply a
disciplinary action to the judges.
11
Antonio MOREIRA BARBOSA DE MELO, “A Administraçao da justice no Estado de Dereito
democrático: o caso português”, within the collective book “Derecho Constitucional para el siglo
XXI (Constitutional Law for the twenty-first century)”, with accounts and communications of the
VIII Latin American Congress on Constitutional Law (Sevilla, December (2005), Book II, pages
3287 and following.
12
This issue is addressed in the document “Mission, vision, rules and other relevant matter of the
councils”, Conclusions of the Work-Group on the subject of Réseau Européen des Conseils de
nd rd
Justice (Barcelona, 2 and 3 of June 2005), page 3. Available in the Web site:
http://www.encj.eu/encj/
Joaquín Delgado Martin -8-The General Council of the Judiciary of Spain
Remote precedents may be found of institutions that, nevertheless, do not
have the same nature and purpose, specially because such type of organization
can only find its authentic raison d’être within the architecture of a democratic
regime. To this effect, we may mention the Head or Supreme Board, created by
decree on 6th December 1849; the Organizing Board of the Justice Department,
established by way of a Royal Decree on 20th October 1923; and specially the
Judiciary. This organization was created by a Royal Decree on 18th May 1917,
which was quickly revoked by a Real Decree dated 18th July, the same year, and
the institution did not have the chance to perform in an effective way during that
period; it was later restored by the Royal Decree of 21st June 1926 and then it
disappeared again through a Decree dated 19th May 1931; finally, the Law dated
20th December 1952 proceeded to establish a new Judiciary that lasted up to the
establishment of the constitutional democratic regime.
Question 6.- What is the configuration of the government system of the
Judiciary in Spain at the moment?
There is the figure of the Judge that belongs to a career or department of
the Public Administration (judicial career) in Spain and, traditionally, the
government of the judicial system has been assigned to a body from the
executive branch (the Ministry of Justice). The 1978 Constitution inserts a new
body within this framework, the General Council of the Judiciary, establishing a
model that gathers different actors with different functions assigned to them:
• The jurisdictional function (to judge and make execute what has been
judged): it only concerns the judicial bodies (Courts and Tribunals) which
are the only ones that really are part of the so called Judiciary.
• The function of managing the statute of the judges (professional career) is
assigned to the General Council of the Judiciary; which is also granted the
right to perform other functions that may contribute to the improvement of
the performance of the Justice Administration. It should be considered that
both, the parliament (in a significant way since the appointment is made by
the Congress and by the Senate) and the Judiciary, itself (the judges
propose 36 candidates among which the Parliament must choose 12),
participate in the system to appoint the members of the Council.
• The function of managing the necessary material and personal means for
the good performance fo the judicial bodies (the so called “judicial office”)
concerns the Executive Branch of Government: the Ministry of Justice and
the Autonomous Regions to which the competences in that area have
already been transferred.
Joaquín Delgado Martin -9-The General Council of the Judiciary of Spain
THE JUDICIARY IN SPAIN
STATE
LEGISLATIVE JUDICIAL EXECUTIVE
BRANCH BRANCH BRANCH
The Judiciary in a
strict sense:
It consists of the
Judges when they
practice the
jurisdictional function
(to judge and to make
Government of the
execute what has been
Judiciary: Administration of the
judged)
Functions of government Justice Administration:
and administration of the The management of the
professional statute of the It concerns each one material and personal
judges (becoming a of the Judges means (they are grouped
member, promotion, within the so called
training, appointments…) “judicial office”)
and those related to the
performance of the judicial
bodies (inspection, It concerns the Ministry
appointment of of Justice (or the
replacement judges…) Autonomous Region in
the cases where
It concerns the General the competences in this
Council of the Judiciary area have already been
transferred)
Joaquín Delgado Martin - 10 -The General Council of the Judiciary of Spain
4.- THE GENERAL COUNCIL OF THE JUDICIARY: CONCEPT, NATURE AND
FUNCTIONS
Question 7.- What is the General Council of the Judiciary?
It is a constitutional, professional, autonomous body, mostly
consisting of judges, that performs competences related to the
government of the Judiciary with the object of guaranteeing the
independence of the judges in the exercise of the judicial
function.
The main features of the General Council of the Judiciary are the following
ones:
• Constitutional body: it has been created directly by the Constitution, that
places it at the top of the structure of the State since it performs the function
of governing one of the three state branches of government (the Judiciary).
• Professional body: it consists of a diversity of members, in such a way that
the decisions of the General Council of the Judiciary are taken in consensus
by its members (by applying the majority system ).
• Autonomous body: The legislation provides it a status which guarantees
that it may carry on its competences within an autonomous regime, without
any subordination to the other government branches and bodies of the State.
o Its financial autonomy is to be remarked: it manages the funds
assigned to it every year in an autonomous manner. This way, the
Fundamental Law of the Judiciary states that it is the General Council
of the Judiciary’s duty to “make, lead the execution of and control the
compliance with the Council’s budget”.
• Instrumental body: It is created with the main object of guaranteeing the
independence of the Judiciary (consisting of the judges when they exercise
the judicial function judging and having executed what has been judged).
• Administrative body: it adopts decisions of an administrative nature in the
exercise of the competences that are assigned to it, specially concerning the
professional statute of the judge..
o The General Council of the Judiciary has no legislative authority. It
cannot elaborate rulings with the status of Law. Let us recall that the
legislative authority belongs to the Parliament of the State and the
Legislative Assemblies of the Autonomous Regions. Notwithstanding,
the General Council of the Judiciary can elaborate legal rulings (of a
general nature) of a statutory nature (the rulings of the General Council
of the Judiciary are of a lesser rank and are subordinated to the Laws);
see section 4.3.2.
o The General Council of the Judiciary is not a jurisdictional body: it has
not been assigned the function of judging, that is to say, it does not
solve the conflicts between individuals or between the latter and the
State through the application of the Law.
• Legal body mostly consisting of judges: while 12 of its members are
judges, 8 are prestigious legal experts that come from other legal careers.
This way, we can affirm that it is not a self-governing body belonging to the
judges.
Joaquín Delgado Martin - 11 -The General Council of the Judiciary of Spain
Question 8.- What is the object of the General Council of the Judiciary?
WHAT IS THE OBJECT OF THE GENERAL
COUNCIL OF THE JUDICIARY?
TO GUARANTEE THE
MAIN FUNCTION INDEPENDENCE OF
THE JUDGES (4.2.1)
The General Council of • To participate in the
the Judiciary is not a decisions about the
government body performance of the
belonging to the judges judicial system (4.2.2)
only, but it is related to • Functions in relation
the full Judicial Branch to other State
of Government, thus, its institutions (4.2.3)
functions spread
beyond the decisions
related to the statute of
the Judge
Autoantolaketa funtzioa: BJKN beraren
barne antolaketa eta funtzionamendua
(4.2.4.)
A) Main function: to guarantee the independence of the judges
The main function of the General Council of the Judiciary resides in guaranteeing
the independence of the Spanish judges in the exercise of the jurisdictional
function (to judge and make execute what has been judged). That is why the
main core of their competences is extended to the questions that affect the
professional career of the judges: selection and appointment, positions,
promotions, administrative situations, leaves and work permits, prohibitions and
incompatibilities, sanctioning authority…
By assigning these decisions to an autonomous legal body (the Council)
instead of assigning them to other State institutions, getting them out of the area
related to other State Government bodies (the Ministry of Justice which is placed
within the Government), an important source of external pressures on the activity
of the judges that may affect the independent exercise of their function, is thus
Joaquín Delgado Martin - 12 -The General Council of the Judiciary of Spain
limited.
Constitutional Court´s decision 108/1986 dated 29th June 1986:
“The functions that the Council should assume compulsorily are those that could be
most relevant for the Government to try and influence on the Courts: on the one
hand, the possible favoring of some Judges by means of appointments and
promotions; on the other hand, the possible troubles and damages they could suffer
due to the inspection and imposition of sanctions. Thus, the object of the Council
is, to deprive the Government of those functions and to transfer them to an
autonomous and separate body”
B) Secondary function: to participate in the decisions related to the functioning of
the judicial system.
The General Council of the Judiciary has also been assigned a number of
competences that, even though they do not relate to the direct management of
the courts, they do contribute to the improvement of the good performance of the
judicial system. In this way, it may be stated that the existence of the General
Council of the Judiciary has a second function of a secondary nature: to extend
the level of participation in the process of decision taking that affect the judicial
system. To this effect, the fact that the Council is a professional body where not
only judges take part (12 in all), but also legal experts of a renown prestige (8 in
all) that actually belong to the various sectors of the justice system and to the
different legal careers (public prosecutors, lawyers, university professors…),
must be considered.
Although the management of the material and personal resources of the
judicial system mainly belongs to the Ministry of Justice (or to the Autonomous
Regions that have assumed the competences in this matter), the General Council
of the Judiciary develops certain activities that affect the quality and
modernization of the justice system: to announce rules on certain accessory
aspect of the judicial actions, to write reports concerning the legal rules that affect
the organization and performance of the judicial system, to inspect the
functioning of the judicial bodies…
C) Functions related to its relation with other State institutions
On the other hand, the legal system grants another series of functions to
the General Council of the Judiciary that become relevant only from its
dimension as a high State institution that has been directly created by the
Constitution (constitutional body): It participates in the appointment of high
positions in the State, it makes reports related to the laws and other rulings that
are written by other public bodies…
D) Self-organizing function
The General Council of the Judiciary has been assigned a last group of
competences that is related to its self-organizing ability (as an expression of the
nature of its autonomous body): to appoint the General Secretary and the
members of its technical bodies, make and execute its budget, regulate its
organization and internal performance…
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Question 9.- What instrument is it provided with for the execution of its
competences?
The General Council of the Judiciary takes decisions of an administrative
nature, writes rulings, makes reports, it can raise conflicts before the
Constitutional Court and it can request some measures to other State bodies.
A)Decisions of an administrative nature
The General Council of the Judiciary is an administrative body, that is to
say, it adopts administrative decisions (administrative acts) within the scope of its
competences.
It is fully subjected to the Constitution and the remaining legal system for
its actuation.
Its decisions are subjected to a judicial control: the party concerned that
considers that it has been harmed by the decision of the General Council of the
Judiciary can formulate an administrative-contentious appeal that will be solved
by the Third Chamber of the Supreme Court.
B) Ruling legal authority
In the exercise of its functions, the General Council of the Judiciary not
only will take decisions of an administrative nature (specific actions addressed to
one or several specific addressees), but it can also avail of the possibility of
writing legal rules (rulings of a general nature with undetermined addressees and
which create objective Law) in particular matters: these legal rules are called
regulations.
Considering the area where the regulations display their effects, they may
be classified in two categories: the internal one and the external one (introduced
by the Fundamental Law 1/1994).
B.1) INTERNAL REGULATION LEGAL AUTHORITY
First of all, the General Council of the Judiciary can dictate regulations
concerning its staff, organization and performance within the framework of the
legislation on the public function (article 110.1 Fundamental Law of the
Judiciary)13.
It consists of a regulating legal authority that expresses its self-organizing
capacity)14. This autonomy is limited by the contents of the Law that has allowed
these regulations to be written (the Fundamental Law of the Judiciary).
Within the internal regulating legal authority, the General Council of
the Judiciary wrote the Regulation 1/1986, dated 22nd April , concerning the
Organization and Performance of the General Council of the Judiciary (ROF)
B.2) EXTERNAL REGULATION LEGAL AUTHORITY
Within the scope of its competence and subjected to the laws, the General
13
Hereon LOPJ.
14
See Maria del Mar NAVAS SÁNCHEZ, “Poder Judicial y sitema de Fuentes. La potestad
normativa del Consejo General del Poder Judicial (The Judiciary and system of sources. The
regulating legal authority of the General Council of the Judiciary)”, editorial Civitas, Madrid, 2002,
pages 315 and 316.
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Council of the Judiciary will have the power to write rules to establish regulations
of a secondary and auxiliary nature that will help develop the Fundamental Law
of the Judiciary, controlling accessory conditions for the exercise of the rights and
duties that conform the judicial statute without innovating the former nor
modifying the latter as a whole.
Within the exercise of this legal authority, the Council is limited by the
rights and obligations of the judges that are considered by the Fundamental Law
of the Judiciary: it cannot create new ones or modify the content of the ones
established by the mentioned LOPJ (Fundamental Law of the Judiciary).
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THE EXTERNAL REGULATION LEGAL AUTHORITY OF THE GENERAL COUNCIL OF
THE JUDICIARY
Article 110 of the Fundamental Law of the Judiciary states as follows:
“These regulations can regulate accessory conditions for the exercise of the rights and duties that
conform the judicial statute without innovating the former or modifying the latter as a whole. They may
be approved in the cases where they are required for the execution or application of this law, in those
cases where it is thus anticipated by this law or a different one and, specially, in the following cases:
1. Admission, promotion and specialization system within the Judicial Career, status of the interim
judicial civil servants and of the assistant judges and the theoretical and practical courses within
the Judicial School, as well as the organization and functions of the latter. To this effect, and
within the regulating development of the Judicial School’s organization and performance, the
composition of its Governing Board should be determined; in it, the Ministry of Justice, the
autonomous regions with competences in matters of Justice and the professional associations of
judges and magistrates should be necessarily represented.
2. Way of distributing the different shifts and providing for vacant and deserted positions to
judges and magistrates.
3. Minimum period of permanence in a position for judges and magistrates.
4. Procedure for the regulated tenders and way to apply for the provision of positions and
responsibilities of discretionary appointments.
5. Training programs for judges and magistrates and way to obtain specializing degrees.
6. Administrative situations of judges and magistrates.
7. Scheme of leave and work permits for judges and magistrates.
8. Consideration of the knowledge of the language as a preferential merit and of the autonomous
community’s own right to the provision of judicial positions within the territory of the
community itself.
9. Scheme of incompatibilities and file processing on questions that affect the statute of judges and
magistrates.
10. Contents of the judicial Scale, within the terms anticipated by this law.
11. Scheme of replacements, of the substitute magistrates, of the replacement judges, and of the
Justice of the Peace.
12. Performance and authority of the Government Chambers, of the Board of Judges and of other
governmental bodies, and elections, appointments and cessation of members of the
Governmental Chambers and Senior Judges.
13. Inspection of courts and tribunals and processing of complaints and claims.
14. Publication of judicial actions, appointment of days and times, setting the times for the public
audiences and constitution of the judicial bodies outside their head office.
15. Specialization of the judicial bodies, distribution of matters and papers and general rulings for
the provision and development of the duty service, without prejudice to the competences of the
Ministry of Justice or, in its case, the autonomous regions with competences in the field of
personnel.
16. Way to resign and to possess within the judicial bodies and drawing-up of displays.
17. Jurisdictional cooperation.
18. Honours and ways to address judges and magistrates and rules about protocol on judicial events.
19. Systems of rationalization, organization and measurement of the work that are considered
convenient to determine the work-load that might be borne by a jurisdictional body, as well as
to establish minimum homogeneous criteria for the making of distribution rules”.
And article 107.10,2nd of the LOPJ (Fundamental Law of the Judiciary) states the
following in relation to the court orders and other resolutions issued by the Supreme Court and
the remaining judicial bodies:
“To that effect, the General Council of the Judiciary, following the report from the competent
Administrations, will establish, by regulation, the manner in which the electronic books for
court orders must be made, how these court orders should be collected and their treatment,
circulation and certification method, in order to watch over their integrity, authenticity and
access, as well as to secure the compliance with the legislation in the matter of personal data
protection”.
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C) Making reports (advisory body)
The General Council of the Judiciary also makes reports in relation to the
laws and legal rules that will be written by other state bodies and which refer to
the judicial system and to the jurisdictional tutelage of the fundamental rights,
prior to the approval of those rules. See section 6.2.4.
D) Legitimisation to raise conflict cases before the Constitutional Court
Article 59 of the Fundamental Law of the Constitutional Court places the
General Council of the Judiciary among the constitutional bodies, so that it is
legitimized to rise conflict cases before the Constitutional Court in defence of its
competences.
E) Initiative in relation to other State institutions
The General Council of the Judiciary has not been assigned the legislative
initiative, that is to say, it cannot present any Bills of Law before the Parliament.
Nevertheless, it is not prevented from urging the Parliament, the Government of
the Autonomous Regions to adopt the measures and initiatives that it considers
necessary for the right performance of the judicial bodies (material and personal
means at the service of the justice administration:
A) Presentation of the Annual Report to the General Courts (article 109
LOPJ: Fundamental Law of the Judiciary).
B) Submittal of a list of requirements (article 37.2 LOPJ: Fundamental
Law of the Judiciary) to the Government or to the Autonomous Region
with competences in matters of justice.
Question 10.- What are the rules that regulate the General Council of the
Judiciary?
Article 112 of the Constitution
1.- The Fundamental Law of the Judiciary will
determine the constitution, performance and
government of the Courts and Tribunals, as well as the
legal statute of the career Judges and Magistrates,
that will constitute a unique Body, and the personnel
at the service of the Justice Administration.
2.- The General Council of the Judiciary is the
government body of the same. The fundamental law
will establish its statute and the system of
incompatibilities of its members and their duties,
particularly in the matter of appointments,
promotions, inspection and disciplinary system.
• Article 122 of the Spanish Constitution
• Fundamental Law 6/1985, dated 1st July, of the Judiciary (LOPJ), that has
been the object of different reforms in this matter.
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• Regulation no. 1/1986, dated 22nd April, on the Organization and
Performance of the General Council of the Judiciary (published in the
Official State Bulletin dated 5th May 1986)
• Other Regulations written by the General Council of the Judiciary within its
regulatory legal authority:
o Regulation 1/1995, dated 7th June, concerning the Judicial Career.
o Regulation 2/1995, dated 7th June, concerning the Judicial School.
o Regulation 3/1995, dated 7th June, concerning the Justice of the
Peace.
o Regulation 1/1997, dated 7th May, concerning the Judicial
Documentation Head Office.
o Regulation 1/1998, dated 2nd December, on the processing of
complaints and claims concerning the performance of courts
and tribunals.
o Regulation 1/2000, dated 26th July, concerning the court governing
bodies
o Regulation 2/2000, dated 25th October, concerning the associate
judges
o Regulation 1/2003, dated 9th July, concerning judicial statistics
department
o Regulation 1/2005, dated 15th September, concerning the
accessory aspects of the judicial actions
o Regulation 2/2005 concerning the honours, way to address and
protocol in the solemn judicial events
The texts concerning these rulings may be looked up in the web site of the
General Council of the Judiciary (http://www.poderjudicial.es/): section General
Council of the Judiciary/ Judicial organization and attention to the citizen/ Judicial
Organization/ Summary of Judicial Law.
5.- COMPOSITION
The General Council of the Judiciary is a professional body, that is to say,
it consists of a diversity of individuals that adopt decisions as a group.
Both the body composition and the way its members are appointed vary
within the international scope. Both questions reflect the role of the Council within
the overall State legal authorities.
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Question 11.- How many members are there in the General Council of the
Judiciary?
Number of members
In other countries the
number of members varies
greatly, ranging from The General Council of the Judiciary
Councils with a reduced consists of:
number of members (for • 20 members (named Vocales)
example the seven • and 1 President
members of the Council of
the Federal Judiciary in
Mexico) to others that have
a higher number of
members (the Consiglio
Superior della Magistratura
in Italy has 33 members)
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Question 12.- Where do the members of the General Council of the
Judiciary come from?
Where the members come from
In general, the members of the The members of the General Council of the
Council belong to three Judiciary belong to three categories;:
categories: 12 Members are judges or magistrates
• Judges: Most of the (judicial members)
members of the Council
are judges. Usually, they
8 Members are legal experts of a renown
come from the different reputation (non judicial members)
areas and sections of the The President of the Supreme Court who,
judicial system. In some at the same time, holds the title of President
countries, some of them of the General Council of the Judiciary (ex-
are members of the officio member).
Council on the grounds of
their way of life; others
are elected by the judges
themselves.
• Non-judicial members. Most of the
They are elected, through members of the The legal experts
different channels, by the General Council of that are no judges
interested groups related the Judiciary are by profession,
to the judicial system, judges, which is
provide their own
and/or by the Parliament understandable if
we consider that experience on the
and other State bodies. performance of
their main objective
• Ex-officio members due to consists on the judicial system
their particular position in managing the from various
the State. In some statute of the perspectives, thus
specific countries the judges contributing to the
persons holding the
General Council
position of the President
of the Judiciary’s
of the Republic, the
richer exercise of
Minister or Justice, the
its duties.
President of the Supreme
Court or the General
Attorney are members of
the Council.
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Question 13.- Who appoints the members of the council?
Who appoints the members of the council?
• The 20 members of the General
Council of the Judiciary
(Members) are elected by the
Parliament (Congress and
Senate)
o Although some of them
(12) are appointed by
the judges themselves
(by themselves or
through judicial
associations)
• The President is designated by
the Plenary of the General
Council of the Judiciary itself
(within its constituent meeting)
among the members of the
judicial career or legal experts
of renown competence
The formal appointment of the
Members and the President is made
by the King.
Question 14.- What is the procedure to appoint the members of the General
Council of the Judiciary?
A) Designation of the judicial Members
Each one of the two Chambers within the Spanish Parliament (Chamber of
Deputies and Senate) elects -by majority of three fifths- six members (Vocales)
among Judges and Magistrates from all judicial categories that will be proposed
for their appointment by the King according to the following procedure:
• The Judges and Magistrates, from all judicial categories, that are working
and are not members of the outgoing Council and do not provide any
service within the technical bodies of the same, can be proposed.
• The proposal for the appointment must be made by the Congress and the
Senate among the candidates presented to the Chamber by the Judges
and Magistrates according to the following steps:
o The candidates will be proposed, up to a maximum of three times
the twelve positions that are to be covered, by the professional
associations of Judges and Magistrates, or by a number of Judges
and Magistrates that represents, at least, 2% of all of those that are
working at the time. The decision about the maximum number of
candidates that are to be presented by each association and the
Joaquín Delgado Martin - 21 -The General Council of the Judiciary of Spain
maximum number of candidates that can be presented through the
signature of Judges and Magistrates will follow strict proportionality
criteria, according to the following rules:
o The 36 candidates will be distributed in proportion to the number of
affiliates in each association and to the number of non-affiliates to
any association; the latter will determine the maximum number of
candidates that may be presented through the signatures of other
non-affiliated Judges and Magistrates; all of this will be carried on
according to the data kept in the Register within the General
Council of the Judiciary, following what is stated in article 401 of
the present Fundamental Law, and no Judge or Magistrate will
have the possibility to back more than one candidate with his
signature.
o In the case where the number of Judges and Magistrates presented
with the backing of enough signatures is higher than the maximum
allowed and mentioned in the a.m. paragraph, only the candidates
backed by the higher number of signatures up to the required figure
will be considered. In the opposite case where the number of
candidates backed by the signatures is not enough to cover the
total number of 36, the remaining ones will be provided by the
associations, in proportion to the affiliate numbers; considering the
latter and in order to prevent any delays, the associations will
include a differentiated complementary list of candidates within their
initial proposal.
o Each association will determine, according to its statutes, the
system of election of the candidates that it is meant to present.
• Among the 36 candidates presented, according to the system described
above, 6 Members will be elected, first, for the Plenary of the Chamber of
Deputies, and once these 6 Members are elected, the Senate will elect the
other 6 among the 30 remaining candidates.
B)Designation of the non-judicial Members
Additionally, each Chamber within the Parliament will elect -by a majority
of three fifths- four Members among lawyers and other legal experts of renown
competence who have more than 15 years of experience in their career and who
are not members of the outgoing Council and do not provide any service within
the technical bodies of the same.
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Among legal
Among Judges experts of
TOTAL
and Magistrates renown
competence
MEMBERS
PROPOSED BY 6 4 10
THE CONGRESS
MEMBERS
PROPOSED BY 6 4 10
THE SENATE
TOTAL
MEMBERS 12 8 20
Designated by the Assembly of the General
Council of the Judiciary among the members
PRESIDENT or the judicial career or legal experts or
renown competence
1
Question 15.- What scheme do the members of the Council submit to?
The members of the General Council of the Judiciary are subjected to
a very demanding scheme or statute, with the object of guaranteeing an
autonomous or independent exercise of their duty.
• During the compliance with their functions.
o They will carry on their activities with a full dedication, and their
position will be incompatible with any other position, profession or
activity, public or private, working for themselves or for others,
remunerated or not, with the exception of the mere administration of
the personal or familiar patrimony; additionally, the specific
incompatibilities related to judges and magistrates will also be
applied to them.
o They will not be subjected to imperative mandate.
o They cannot be promoted to the category of magistrates of the
Supreme Court during the term of their mandate, nor can they be
proposed for any position within the judicial career of free
designation or for a position requiring recognition of merits.
o The civil and penal responsibility will be demanded through the
procedures established for the Magistrates’ within the Supreme Court.
• In relation to the finishing up of their duty
o The members of the Council can only be removed from their
positions in the case that their period of mandate gets to and end,
or due to their resignation, incapacity, incompatibility or serious
non-compliance with the duties related to their position. The
President is competent for the acceptance of the resignation; the
consideration of the remaining causes for the cessation must be
made and agreed upon by the Assembly of the Council, through a
majority of three fifths of its members.
o The members of judicial origin will finalize their term when, due to
retirement or other reasons, they do not belong to the judicial
career any longer, and they will be replaced by the same procedure
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(by parliamentary election) and for the remaining term of the
Council mandate.
Can the members of the General Council of the Judiciary be
reelected for a new mandate?
No, they cannot because article 112.1 establishes the prohibition of
nominating the Members of the outgoing Council; although they may
be appointed for later Councils.
Question 16.- What length of time are the members of the General Council
of the Judiciary appointed for?
The term for each mandate of the General Council of the
Judiciary lasts 5 years
The members of the General Council of the Judiciary are appointed for a 5
year term, after which they are all renovated.
6.- COMPETENCES
The different competences assigned by the Law to the General Council of
the Judiciary can be classified according to its different functions:
6.3.- In its relation with other
State Institutions:
• Appointment of high-
6.2.- On the organization ranking-officials
and performance of the • Annual report before the
judicial system: Parliament
6.1- To guarantee the • Inspection of judicial • Initiative to push other
independence of the bodies institutions to adopt
judges: • Complaints on the measures
• Decisions related to the functioning of the
professional statute system of justice
• Disciplinary legal • External legal authority 6.4.- On the internal
authority regulation organization and
• Protection of performance:
• Writing reports on legal
independence • Internal legal authority
regulations on the
regulation
subject
• Appointment of General
• Reinforcement of
Secretary and technical
judicial bodies
bodies
• General Council of the
Judiciary budget
6.5.- Other competences
considered by the Law
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