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
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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 opinion 2, or even if they come from the government bodies of the judiciary themselves 3, or from the other judges 4.
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
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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 American Legal Summit celebrated in Santa Cruz de Tenerife (Spain) on 23 rd and 25 th 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 Republic on 21 st and 22 nd May 2006.
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the governing function in relation to the remaining National bodies 5. 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 legislation 6. 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.
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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 Ecuador 8. 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 on 24 th 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.
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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 24 th 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.
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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 system 12 .
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 Justice (Barcelona, 2 nd and 3 rd of June 2005), page 3. Available in the Web site: http://www.encj.eu/encj/
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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 6 th December 1849; the Organizing Board of the Justice Department, established by way of a Royal Decree on 20 th October 1923; and specially the Judiciary. This organization was created by a Royal Decree on 18 th 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 21 st June 1926 and then it disappeared again through a Decree dated 19 th May 1931; finally, the Law dated 20 th 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.
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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: judged) Administration of the 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)
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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.
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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
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limited.
Constitutional Court´s d ecision 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 107.10,2 nd 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 1 st 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 22 nd April, on the Organization and Performance of the General Council of the Judiciary (published in the Official State Bulletin dated 5 th 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) The President of the Supreme Court who, areas and sections of the 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, judges, which is to the judicial system, 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
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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 PRESIDENT Council of the Judiciary among the members or the judicial career or legal experts or 1 renown competence
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 performance: • Protection of • Writing reports on legal • Internal legal authority independence 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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Question 17.- What are the competences of the General Council of the Judiciary to guarantee the independence of the judges?
A) Decisions related to the professional statute of the judges The main core of the competences of the General Council of the Judiciary concerns what we could designate as “management of human resources” of the judicial career, that is to say, all that is related to the professional career of a judge: • To select the individuals that are going to fulfill the judicial task. • To appoint the judges (by means of an Order from the General Council of the Judiciary); as well as the magistrates of the Supreme Court, magistrates and presidents (by presenting it to a Royal Decree, ratified by the Minister of Justice) • Aspects related to the development of their professional life: assignments, promotions, administrative situations (active service, special services, extended leave of absence and suspension of duties), leaves of absence, prohibitions and incompatibilities. • Training and improvement. The creation of the selection and training centre for judges under the name of Judicial School, serves this purpose. • To sanction the judges that commit a disciplinary offense • Loss of the condition of judge (retirement, incapacity, sanction or sentence, resignation, and loss of nationality)
Selection of the Appointment of the Judges, Training, members of the specialization judicial career
Decisions on the professional career of the Judge Assignments, Loss of the administrative condition of Judge situations, leaves, and permissions, prohibitions and incompatibilities
Sanctions for Disciplinary infractions
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B) Disciplinary legal authority
The determination of the body that will perform the disciplinary competence concerning the judges is relevant in order to safeguard their independence. At an international level, there is a tendency that consists of assigning the a.m. competence to professional bodies majorly or totally consisting of judges. In some cases, the Council is created with the main purpose of performing this disciplinary legal authority(for example the Judicial Conduct Councils in several States of the US); in other cases, the composition of the Council will be different when it performs disciplinary functions (the Chamber of the Superior Council of the Judiciary in Colombia consists of seven magistrates, elected by the National Congress from lists of three candidates sent by the Government, for a period of 8 years). Within the Spanish system, the disciplinary competence is shared by the General Council of the Judiciary (let’s recall that it majorly consists of judges) and other internal government bodies of the courts (consisting of judges only): • The General Council of the Judiciary is competent to impose sanctions on the members of the judicial career in the case they have committed one of the very serious (within the Assembly meetings) or serious (within the Disciplinary Commission meetings) administrative infractions. • The Government Chambers of the Courts can impose sanctions such as fines or a warning and fine for the commission of minor infractions. • The Presidents of the Courts can impose the warning sanction to the judges and magistrates that are subject to them.
The decisions of the General Council of the judiciary on disciplinary matters are also submitted to a judicial control, in such a way that the interested party may lodge an administrative-contentious appeal that will be solved by the Third Chamber of the Supreme Court.
The disciplinary legal authority of the General Council of the Judiciary is concerned only with the external conditions of compliance with the judicial duties (unjustified delay, abuse of authority, lack of respect, non- compliance with the hearing timetable…) and it can in no way affect jurisdictional matters, that is, the specific contents of the judicial resolutions
C) Protection to the independence of the judge Following a request by the judge, the General Council of the Judiciary can adopt the measures that, within its competences, are deemed necessary to safeguard the independence of the person that considers himself worried or disturbed in his independent performance of the judicial function (article 14.1 LOPJ: Fundamental Law of the Judiciary). Although the system does not provide for the specific measures that might be adopted, if the General Council of the Judiciary considers the need for protection because it assumes that the independent performance of the judge has been disturbed, in practice, it is acting as per the following guideline:
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• First of all, it adopts an institutional declaration that affirms the existence of disturbance affecting the independence, which the interested party may oppose before any public body and before the society as a whole. • Additionally, it may inform the Attorney General’s Office or the courts about the facts, while considering the possible start of a penal process so that the competent judicial body investigates the possible commission of an offense. • On the other hand, it can also request that disciplinary action is taken to sanction the conduct threatening the independence of a public civil servant; or to practice its own disciplinary competence if the responsible is a judge.
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?
As opposed to the Councils in other countries (Netherlands, Bulgaria, Cyprus…), the Spanish General Council of the Judiciary has no direct competences concerning the management of the courts (administrative, logistic and budgetary support, through the provision and management of material and personal means: buildings, computing and telematic systems, civil servants…). On the other hand, the General Council of the Judiciary does have assigned various competences through which it can participate within the process of decision taking concerning the organization and performance of the judicial system, thus contributing to the improvement of the quality of the service and its modernization.
A) Inspection of the judicial bodies According to article 107 LOPJ (Fundamental Law of the Judiciary), one of the competences of the General Council of the Judiciary is the “inspection of Courts and Tribunals”. Additionally, “the General Council of the Judiciary performs the superior inspection and supervision over all the courts and tribunals to check and control the functioning of the Justice Administration” (article 171.1 LOPJ: Fundamental Law of the Judiciary)
• The contents of the inspection involve the revision of all that is considered necessary to know the performance of the judicial body and the judicial staff’s compliance with their duties (specially in relation to the diligence and quickness in the processing of the matters) • The interpretation and the application of the laws carried on by the judges when they administer justice can never be the object of approval, censure or correction when performing the inspection.
In order to effect this task, the General Council of the Judiciary can avail of the help of the Inspection Service, which itself consists of various units (delegate inspector and secretary). These units perform their activities within all the national territory, checking and controlling the good performance of the Justice Administration services through the actions and visits they make. On the other
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hand, the above mentioned Service will receive and check the reports, complaints and claims that are addressed to the Council on the performance of the different judicial bodies and on all judicial staff’s compliance with their duties, and can take disciplinary measures.
What is the use of the The inspection may bring inspection? about: o To obtain information on o The adoption of the real activity and measures to alleviate situation of the judicial the detected bodies situation, by the o To control the level of General Council of compliance with the the Judiciary or by standards of another body, each management in quantity within its own and in quality competence o To effect a diagnose on o Or the request for the organization and disciplinary performance of the responsibility to the inspected judicial body. judge or remaining judicial staff.
B) Complaints on the performance of the judicial system The Assembly of the General Council of the Judiciary, during its meeting dated 2 nd December 1998, approved the Regulations on Complaints and Claims, which describe the processing method that the reports, suggestions, complaints and claims of the citizens on the performance of the Justice Administration must follow. These Regulations are complemented with the Instruction 1/1999 which contains the service Protocol and the forms for the complaints and claims processing and the previous information to the citizen.
COMPLAINTS The citizens can lodge complaints, suggestions and claims on the performance Courts and Tribunals before the General Council of the Judiciary (and other government bodies of the Judiciary). In this way, the service to the citizen and the quality of the given service itself are improved. If a deficient performance is detected, the necessary measures will be taken to correct the anomaly if they are within the scope of the General Council of the Judiciary; or else, to inform the competent body. These complaints cannot affect the contents of the judicial resolutions, as a consequence to the respect towards the independence of the judges; if one of the parties does not agree with the resolution, it may lodge the concerning appeal within the process. They cannot refer to the facts that could constitute a case for taking disciplinary measures, either; in this case, the relevant disciplinary action will be followed. They can be submitted to the Registries in the judicial head offices, to the Registries in the public bodies, the Post Offices, the Boxes for the collection of claims and suggestions in the judicial buildings, and through the Web Site of the General Council of the Judiciary itself.
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C) Regulating legal authority in relation to various aspects of the organization and performance of the judicial bodies.
• Inspection of courts and tribunals and processing of complaints and reports. • Publication of judicial actions, appointment of days and timetables, setting timetables for public audiences and constitution of judicial bodies outside their head office • Specializing of judicial bodies, distribution of matters and written accounts and general rules on the performance of civil custody, without prejudice to competences of the Ministry of Justice or, in if it is the case, the autonomous regions with competences in matters related to the staff. • Jurisdictional cooperation. • Honors and ways to address the judges and magistrates and rules about the protocol during judicial events. • Systems of rationalizing, organizing and measuring work, as esteemed convenient to determine the load of work that a jurisdictional body may bear, as well as to establish minimum homogeneous criteria to devise the distribution norms.
D) Advisory task: production of reports in relation to the legal rules that affect the organization and performance of the judicial system
THE GENERAL COUNCIL OF THE JUDICIARY AS AN ADVISORY BODY OF THE STATE
The General Council of the Judiciary has the competence to inform drafts of State laws and regulations or those of the Autonomous Regions in relation with the following subjects: • Statement and modification of legal demarcations. The General • Making and modifying the list of personnel as regards Council of the Judges, magistrates, secretaries and staff working for Judiciary the Justice Administration. collaborates with • Fundamental Statute of judges and magistrates. other State • Fundamental Statute of secretaries and the remaining institutions, staff working for the Justice Administration. contributing to the • Processing rules or rules that affect the legal- improvement of the constitutional aspects of the tutelage before the technical quality of ordinary Courts related to the practice of the basic the legal regulation. rights and any other rights that might affect the constitution, organization, performance and government of Courts and Tribunals. • Criminal Laws and Rules on prison system. • Any such functions as may be assigned to it by the laws in force.
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E) Reinforcement measures concerning legal bodies When the exceptional delay or accumulation of cases in a particular Court of Tribunal cannot be corrected through the reinforcement of the staff within the legal Office or the temporary exemption from the distribution of new cases, the General Council of the Judiciary can grant exceptional judicial supporting measures consisting of: the appointment, as substitute Judges or supporting Judges, of the internship Judges, the granting of service commissions to Judges and Magistrates or the appointment of substitute Judges or substitute Magistrates, in order for them to participate together with the nominal Judges and Magistrates of those bodies in dealing with and solving the cases that would not be pending (article 216 bis LOPJ: Fundamental Law of the Judiciary).
Question 19.- What are the competences of the General Council of the Judiciary in the scope of its relationship with other National institutions?
The legal system grants the General Council of the Judiciary another set of assignments that acquire sense when considering the General Council of the Judiciary as a constitutional body of the State,
A) Competences regarding the appointment of high position members The General Council of the Judiciary participates in the process of designation of people to perform relevant functions within the legal system: • The General Council of the Judiciary will be heard prior to the appointment of the State General Attorney (article 108.3 LOPJ: Fundamental Law of the Judiciary). • Proposal by majority of three fifths for the appointment of the President of the Supreme Court and of the General Council of the Judiciary (article 107.1 LOPJ: Fundamental Law of the Judiciary). • Proposal by majority of three fifths for the appointment of the members of the Constitutional Courts when appropriate (article 107.2 LOPJ: Fundamental Law of the Judiciary), these members will be appointed by the King (article 16.1 Fundamental Law of the Constitutional Court). • it is also concerned with the appointment of the General Secretary of the General Council of the Judiciary.
B) Annual report before the Courts
The General Council of the Judiciary will annually submit to the General Courts a report on the state, performance and activities of the council itself and of the justice courts and tribunals. Additionally, it will include the elements required in matters staff, installations and the resources in general that it considers necessary for the correct execution of the functions that the Constitution and the Laws assign to the Judiciary. The General Courts, according to the regulations of the Chambers, will be able to debate the contents of the above mentioned report and request, if necessary, the presence of the President of the General Council of the Judiciary or the Member of the same that the President has delegated on. The contents of the above mentioned report, always in compliance of the chamber regulations, can bring about the submission of motions, questions demanding a compulsory reply from the Council and, in general, the adoption of whatever measures are deemed necessary by those regulations.
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C) Initiatives to drive other institutions to adopt measures to alleviate the necessities of the justice administration.
The General Council of the Judiciary can avail of various instruments to stimulate the adoption of measures and initiatives by the Government, the Parliament or the Autonomous Regions when it considers them necessary for the proper performance of the judicial bodies or the jurisdictional process:
C.1) STATEMENT OF THE NEEDS WITHIN THE ANNUAL REPORT In the first place, a mention should be made to the submission of the Annual Report to the General Courts; the needs that in its opinion exist in matters of staff, installations and resources for the correct performance of the functions assigned to the Judiciary (article 109 LOPJ: Fundamental Law of the Judiciary) will be included in it.
C.2)LIST OF NEEDS BEFORE THE GOVERNMENT OR THE AUTONOMOUS REGIONS Article 37.2 LOPJ (Fundamental Law of the Judiciary) states that the General Council of the Judiciary will submit, in a yearly basis, to the Ministry of Justice of the competent body of the Autonomous Region (wherever the competences in matters of justice administration are transferred) a justified list of needs in matters of the necessary means for the courts and tribunals to perform their function with independence and efficiency. On the other hand, when the delay in dealing with cases within a legal body has a structural nature, the General Council of the Judiciary, together with the adoption of the above mentioned reinforcement measures related to article 216 bis LOPJ (Fundamental Law of the Judiciary), will lodge the necessary proposals to the Ministry of Justice or to the Autonomous Regions with competences in this matter, in order to proceed with the adaptation of the staff in the Courts or Tribunals affected or the correction of the demarcation or department in question (section 2 of article 216 bis LOPJ: Fundamental Law of the Judiciary).
Question 20.- What competences have been awarded to the General Council of the Judiciary concerning the internal organization and performance?
• Self-organizing capacity . This capacity includes the so called internal regulating legal authority: it can write regulations concerning its staff, organization and performance within the framework of the legislation on the public function (article 110.1 LOPJ: Fundamental Law of the Judiciary) • Appointment of the General Secretary and members of the departments or services that depend on the same (article 107.6 LOPJ: Fundamental Law of the Judiciary) • Make, supervise the execution of, and control the compliance with the budget of the Council (article 107.8 LOPJ: Fundamental Law of the Judiciary). In this line, article 127.10 LOPJ (Fundamental Law of the Judiciary) states that the a.m. budget “will form part of the State General Budget, within an independent section” (budgetary autonomy)
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Question 21.- What other competences does the Law award to the General Council of the Judiciary?
The legislation assigns other competences to the Council, emphasizing the ones related to the appointment of the substitute judges and the substitute magistrates; the resolution of the appeals against the agreements of the internal government bodies; the report on the resources in matters of the responsibility for the abnormal performance of the Justice Administration, etc.
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7.- ORGANIZATION AND PERFORMANCE
Question 22.- What is the internal structure of the General Council of the Judiciary? Since the General Council of the Judiciary is a professional body, its decisions are taken by their members jointly: within a Assembly meeting or within one of the Commissions scheduled by the system. In principle, the agreements must be reached by the body that includes all the members of the General Council of the Judiciary (the Assembly). Nevertheless and to facilitate the work of the General Council of the Judiciary in relation to the multiple subjects within its competence, two instruments are considered: • Commissions . Certain decisions can be taken by an administrative body that includes part of the members (normally 5): the Commission. The most important one is the Permanent Commission (which is in charge of making the agreements related to the everyday life of the General Council of the Judiciary), but, there are other commissions that carry on their functions in relation to certain matters: disciplinary, budgetary, international relations… These Commissions make agreements in matters related to their competence or, they get the work of the Assembly or that of the Permanent Commission ready. • Delegate Board Members. In certain occasions, the plenary delegates in one or various Members, the preparation of its work concerning certain matters (Members delegated for making the Report, for the Attention to the Citizen, for the Judicial Statistics, for monitoring the Insolvency Law, for the Domestic and Gender Violence Observatory, the Territorial Organization, the Penal and Civil Mediation); or its relations with certain institutions or groups (Parliament, Ministry of Justice, Autonomous Regions, the Attorney General, Professional Colleges, Legal Associations, School of Legal Studies, Governmental Bodies, matters related to retirement); or its relations with certain jurisdictional bodies (Supreme Court, National Audience, social jurisdictional order, administrative- contentious order, Under-aged, Family, Penitentiary Surveillance); or for the performance of certain functions (Spokesperson for the General Council of the Judiciary, the Board of the Editorial Department of the Magazine of the Judiciary, Selection Commission, National Commission of the Judiciary Police, Government Board, Summer School, Board of the Editorial Department of the Magazine e-Justicia). Additionally, each Autonomous Region has one or several Delegate Members for its relationship with the legal bodies residing within its own territory.
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President
ASSEMBLY Vicepresident
Members
Delegate Permanent Other Commissions Board Commission Members
General
Secretary
Technical
Bodies
Question 23.- How does it work?
A) General explanation In general, they only deploy effects ad extra , that is to say, out of the General Council of the Judiciary (administrative actions or decisions, regulations and reports) the agreements reached by the Assembly or by the Permanent Commission (as well as the Disciplinary Commission when it imposes sanctions due to serious offenses). The remaining Delegate Commissions and Boards of Members get the agreements from the Assembly and from the Permanent Commission ready, and maintain the relations that are inherent to the cases each one of them deals on. The work of the Delegate Assembly, Commissions and Boards of Members are dealt with by the technical bodies of the General Council of the Judiciary; these technical bodies are supervised and coordinated by the General Secretary, with the superior leadership of the President.
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B) Administrative Procedure • The Fundamental Law of the Judiciary and the Regulation 1/1986 of Organization and Functioning (ROF) establish their own procedure for the General Council of the Judiciary’s actions. o As an additional measure, the administrative procedure’s legal system can be applied: currently, Law 30/1992 dated 26 th November, of the Public Administration’s Legal System and of the Common Administrative procedure (art. 142.1 LOPJ: Fundamental Law of the Judiciary). • The General Council of the Judiciary’s actions are immediately enforceable , without prejudice to the appeal system considered within the Fundamental Law of the Judiciary. o Nevertheless, when an appeal is presented, the authority that is competent to solve it will be able to grant the suspension of the enforcement, by virtue of one’s office or at the petition of the plaintiff, if that enforcement can cause damages that are impossible or difficult to compensate, or when it is so established by the law (art. 140).
C) Resources The channels to challenge the actions of the General Council of the Judiciary which are offered are the following ones: • The appeals in the administrative channel . The procedure actions that establish the impossibility to continue a process or which produce vulnerability, and the final resolutions of the Permanent Commission and the Disciplinary Commission, will be contestable by an appeal before the Assembly of the Council (art. 143.1 LOPJ: Fundamental Law of the Judiciary). Additionally, the Assembly actions that do not produce a resolution in the administrative channel (appeals or extraordinary appeals
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for revision) can be the object of an optional appeal for compensation (articles 116 and 117 Law 30/1992). • The appeals in judicial review channels. The actions, resolutions and dispositions issued by the Assembly can be appealed via judicial review before the relevant Chamber of the Supreme Court. (art. 143.2 LOPJ: Fundamental Law of the Judiciary).
Question 24.- What authorities belong to the General Council of the Judiciary?
Let’s analyze the following ones: • President • Vice-president • Assembly • Permanent Commission • Other Commissions • General Secretary
The technical authorities that are at the service of the General Council of the Judiciary will be analyzed at a later stage. See question number 25.
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A) President
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B) Vicepresident
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C) Assembly
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D) Permanent Commission
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E) Other Commissions
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F) General Secretary
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Question 25.- What are the technical bodies of the General Council of the Judiciary and how are they organized?
A) Functions • To process the matters that must be known by the Association, the Permanent Commission and the President and the Delegate Members. • Execute the decisions taken by the above mentioned bodies. • Issue the communications and notifications in the files they process.
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B) Structure
The technical bodies are supervised and coordinated by the General Secretary, with a top supervision of their activities by the President of the General Council of the Judiciary. They are organized according to the subject they work on and they can be systematized as per the following table:
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C) Statute of the staff working in within the technical bodies
Only the members of the judicial or supervision careers related to the judicial secretary bodies and the civil servants in the public Administrations and the Justice Administrations, as per the numbers specified by the related staff regulations (art. 145 of the Fundamental Law of the Judiciary) will be allowed to work within the technical bodies of the General Council of the Judiciary. The members of the higher level technical bodies that required a Degree in Law before they were appointed to them, will be acting as lawyers at the service of the General Council of the Judiciary. The provision of the positions for the technical bodies of the Council will be made by a selection process where commendable work is considered. Those who have obtained higher level positions will be appointed by the Assembly of the General Council of the Judiciary, after a selection process where commendable work is considered, for a period of two years that can be extendable in a yearly basis with a top limit of 10 years service, and they will be considered to be in a special duties situation at their Administrations of origin. When it is related to tasks at the remaining positions within the technical bodies of the General Council of the Judiciary, the civil servants that perform that work will be considered to be in active service at their bodies of origin. While they remain working within the General Council of the Judiciary, they will be under the rules of the Council Staff Regulations.
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8.- COMPLEMENTARY INFORMATION
8.1.- Information in the Web Site
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8.2.- Basic Bibliography
• VARIOUS AUTHORS, collective work “Derecho Constitucional para el siglo XXI (Constitutional Law for the twenty-first century)”, which contains the Minutes of the eighth Latin American Congress of Constitutional Law (Sevilla, 3rd to 5th December 2003), Book II, editorial Thomson Aranzadi, Madrid, 2006, pages 3269 and following ones. • VARIOUS AUTHORS, “Jornadas de Estudio sobre el consejo General del Poder Judicial (Study Conference on the General Council of the Judiciary)”, 10th to 13th December 1981, General Council of the Judiciary, Editora Nacional, Madrid, 1983 • VARIOUS AUTHORS, collective work “El Gobierno de la Justicia. El Consejo General del Poder Judicial (The Government of the Justice. The General Council of the Judiciary)”, that contains the dissertations of the International Congress of Processing Law of Castilla and León (Valladolid, 28 th to 30 th September 1994), edited by the University of Valladolid, Valladolid, 1996 • VARIOUS AUTHORS, collective work “Constitución y Poder Judicial
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(Constitution and Judiciary)”, edited by the General Council of the Judiciary, Madrid, 2003. • VARIOUS AUTHORS, “El federalism judicial (The judicial federalism)”, edited by the Institute of Autonomic Studies of the Generalitat of Catalunya, Barcelona, 2006. • María BALLESTER CARDELL, “El Consejo General del Poder Judicial. Su función constitucional y legal (The General Council of the Judiciary. Its constitutional and legal function)”, which received the Rafael Martínez Emperador award in 2006; edited by the General Council of the Judiciary in Madrid, 2007. • Carlos DOMÍNGUEZ LUIS, “Poder Judicial: actos de gobierno y su impugnación) Judiciary: government proceedings and their contest proceedings”, editorial Iustel, Madrid, 2006. • 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 el constitucionalismo actual (Citizens and institutions within the present constitutionalism)”, editorial Tirant lo Blanch, 1997, pages 1025 and following ones. • María del Mar NAVAS SÁNCHEZ, “Poder Judicial y sistema de Fuentes. La potestad normativa del Consejo Geneeral del Poder judicial (Judiciary and sources system. The ruling legal authority of the General Council of the Judiciary)”, editorial Civitas, Madrid, 2002. • José Luis REQUERO IBÁÑEZ, “El Gobierno Judicial y el Consejo General del Poder Judicial (The Judicial Government and the General Council of the Judiciary)”. Roles of the Foundation for the Social Analysis and Studies no. 28, edited by the above mentioned Foundation, Madrid, 1996. • RÉSEAU EUROPÉEN DES CONSEILS DE JUSTICE, “ Mission, vision, rules and other relevant matter of the councils”, Conclusions of the Working Group on the matter (Barcelona, 2 nd and 3 rd June, 2005), available in the Web : http://www.encj.eu/encj/ • Celso RODRÍGEZ PADRÓN, “La conformación del Poder Judicial (The homologation of the Judiciary)”, editorial Difusa, Madrid, 2005. • María Inmaculada SÁNCHEZ BARRIOS, “Las atribuciones del Consejo General del Poder Judicial (The General Council of the Judiciary’s powers)” editorial Tesitex, Salamanca, 1999. • Wim WOERMANS AND Pim ALBERS, “ Councils for the Judiciary in UE Countries ”, document written in March 2003, available in the Web: http://www.encj.eu/encj/
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