Thursday, July 7

The Judiciary rules out emergency measures to fill vacancies in the Supreme Court | Spain

Carlos Lesmes congratulates the magistrate of the Contentious-Administrative Chamber of the Supreme Court Javier Borrego, during the act of taking office of this, in 2018.
Carlos Lesmes congratulates the magistrate of the Contentious-Administrative Chamber of the Supreme Court Javier Borrego, during the act of taking office of this, in 2018.FERNANDO ALVARADO (EFE)

For now, there will be no exceptional emergency measures to fill vacancies in the Contentious-Administrative Chamber of the Supreme Court. The General Council of the Judiciary (CGPJ) has ruled out applying in the coming months the extraordinary solutions that had been proposed to avoid the collapse of this room, which has suffered in the last months six casualties that cannot be covered due to the blockage in the renovation of the CGPJ and the legal reform that prevents the current Council from making appointments to discretionary positions. Sources of the body indicate that the three avenues that had been explored (recovering retired magistrates, assigning judges from other courts on commission, and temporarily transferring magistrates from the Military Chamber) have been discarded due to doubts about their viability or due to the complexity to implement them. For now, it is going to choose to fill the gaps with magistrates from the court itself assigned to the Admission Section. If the problem worsens, the court will be reorganized, moving magistrates from the less saturated sections.

In recent days, two reports have provided data on the consequences of the blockade of the judges’ governing body. The impossibility of making discretionary appointments has already left 48 vacancies in positions that cannot be assigned by a Council with the extended mandate (the current one expired in December 2018). Eleven of the vacancies correspond to the Supreme Court, the body most affected because each magistrate who loses the court (due to retirement, death or voluntary departure) leaves a gap that cannot be filled. And within the high court, the most affected room is the Third (Contentious-Administrative), in charge of resolving, among others, appeals against acts of the Government and the CGPJ itself. In this room there have already been six casualties and although they still do not hinder its operation, the magistrates of this room consulted assume that this will happen in the coming months if an agreement is not reached to renew the governing body of the judges.

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The operation of the Contentious Chamber is organized by sections, depending on the matter in question (health, economy, environment) or the public body involved. To deliberate a matter, at least five magistrates are needed. For now, the four prosecution sections have enough judges, but some are already with just the right number and with magistrates about to retire. This is the case of the second section (in charge, for example, of resources on taxes) or of the fifth (which sees resources on urban planning or the environment, among others), whose presidents, Rafael Fernández Valverde and Segundo Menéndez, respectively, they will retire next spring. If the CGPJ has not been renewed by then, these sections will no longer have enough members to deliberate.

Council sources indicate that studies were commissioned on two possible solutions: recover retired magistrates or assign judges from higher courts of justice or provincial courts on commission. But both have been ruled out due to their complexity and because they did not convince either the technicians or those responsible for the court. The same has happened with the possibility that magistrates of the Military Chamber, who have less workload, complete the courts of the Contentious Chamber. Consulted magistrates of the Third Chamber point out that this route would imply “denaturing” the Supreme Court and would only be acceptable for an exceptional crisis.

Rejected in the short term these measures, within the court it is already taken for granted that the judges of the Admission Section will complete the courts when necessary. This section, responsible for deciding the admission or inadmissibility of cassation appeals, is made up of four magistrates, one for each of the jurisdictional sections. Its members rotate every six months and the one who becomes part of Admission temporarily leaves his section of origin. The plan, according to sources from the Council, is that, from the next few months, the magistrates of the Admission Chamber go to their section of origin to deliberate and sign the sentences if there are not enough members. “It is not something exceptional, it is done when an unforeseen event arises,” explains a magistrate in the courtroom. If the Council’s blockade persists and more vacancies arise, the president of the Third Chamber, César Tolosa, could reorganize the sections and move magistrates from those with the most to those with the least.

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The Council has also considered other measures that do not serve to fill vacancies but to relieve the magistrates of the Chamber in the face of the increase in their workload. One of the options that gathers the most consensus is to strengthen the team of lawyers that make up the technical cabinet of the Chamber so that they can provide support in all sections.

However, although drastic measures are ruled out for now, both the CGPJ and the Supreme Court assume that the situation will have to be reassessed in a few months if the renewal of the Council is not seen. “In spring, with the new starts, the situation becomes very complicated and we will have to sit down to talk and study options. We cannot face one or two more years in this situation, ”says a member. The Third Chamber is the one that worries the most because vacancies may impede its operation, but the consequences derived from the blockade of the CGPG already affect almost all the rooms. The Fourth Chamber (of the Social) is the one that supports the lowest percentage (three places of 12, 25%) and consulted magistrates claim to be “completely saturated” because they have to assume the presentations of those who are missing.

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