For more than two years, Spain has been in the limbo of the judiciary, while the country’s leading political parties have been mired in corruption cases for much longer.
Now the ruling Socialists and the opposition People’s Party are embroiled in a heated argument over the appointment of the country’s chief judges and a corruption case that sparked the collapse of the last center-right government.
Both sides have been heavily criticized in an affair that uncovered problems with the powers of Spanish politicians over the legal system, even when high-profile political cases drag through the country’s courts.
The PP accuses Pedro Sánchez’s socialists of trying to grab the courts, alarm Brussels and provoke comparisons with the rule of law problems in Poland.
The government replied that the opposition is holding the system hostage for objecting to a judge who ruled against one of the largest corruption cases in recent history.
The main controversy concerns the body that regulates the Spanish judges and is supposed to guarantee their independence – the General Council of Justice. The 20 judges, attorneys and jurists who sit on the council make the most important judicial appointments in the country, including the Supreme Court, which is also presided over by the chairman of the council.
Spanish Prime Minister Pedro Sánchez says the opposition People’s Party is holding the system hostage. © Eduardo Parra / EUROPA PRESS / dpa
The council currently operates on a janitorial basis as its term expired in 2018. Despite constitutional provisions that stipulate that he should only be in office for five years, he was not renewed because, under Spanish law, its members can only be elected with a three-fifths majority in parliament.
Since the socialist-led minority government and the PP cannot agree on a new list of candidates, no new council has taken office. This means that the old council, which was set up during a previous PP government, continues to select judges, much to the displeasure of Sánchez and his coalition partners in the radical left-wing Podemos movement.
“The problems arose when the political parties wanted to get their hands on the institution [the judicial council]”Francisco Pérez de los Cobos, former head of the Spanish Constitutional Court, told the Financial Times.
“Instead of agreeing on the best candidates, the parties have the [council’s] Members based on their representation in Parliament at a specific point in time. . . Bring partisan confrontation to the heart of the institution. “
The European Commission has highlighted the need to break the impasse. But it reacted with alarm last year when the Socialists and Podemos proposed changes to the law that would allow them to set up a new Judicial Council with an absolute, rather than three-fifths, parliamentary majority. Vera Jourova, Vice-President of the Commission, warned of the risk of “politicization” and called on Madrid to “ensure that the independence of the judiciary is not compromised”.
In October, Sánchez announced that he would put the proposed change in the law on hold in favor of talks with the PP. But those negotiations broke off this month in the midst of sharpness.
A number of corruption cases that have hit leading political parties form the backdrop to this dispute. In 2019, two former socialist heads of government in the Andalusian regional government, José Antonio Griñán and Manuel Chaves, were found guilty of abuse of power in a case of theft from a € 680 million fund. Other cases involve Podemos’ funding and a complicated story about a party worker missing cell phone.
The Spanish national court in Madrid during the trial in which Luis Bárcenas, the former treasurer of the PP, was sentenced to 33 years in prison © Juan Carlos Hidalgo / Pool / EPA-EFE
However, the party with the most important legal problems is the PP, which lost power in a vote of no confidence in 2018 after a court censored it for “institutional corruption” in a case convicted of Luis Bárcenas, the party’s former treasurer 33 Years in prison. Another case of Bárcenas using off-book payments continues. A third case will investigate whether the last PP government used law enforcement officers to destroy evidence in Bárcenas’ possession.
The author of the sentence on “institutional corruption” in the 2018 case was Judge José Ricardo de Prada. He is now the central figure in the dispute over the Council of Justice. The government will not remove him from its list of candidates for a seat on the body, while the PP will not accept him.
The PP argues that de Prada was not nominated by his colleagues for any of the 12 posts on the council reserved for practicing judges – and that his appointment would therefore be illegal.
“Our reasoning is based on the law,” said Pablo Montesinos, a senior PP official, who argued that in the future judges should themselves elect their representatives on the council without parliamentary approval.
The government, which has already agreed to remove a judge from the candidate list, says it will not budge on the issue. “De Prada is a great lawyer,” said a Justice Department official, adding that there was no legal barrier to electing him as a legal scholar rather than a judge if necessary. “The government remains firm for this reason.”
Others are nowhere near convinced that the system can go on as it is, with questions about the most important judicial appointments in the country.
“Political parties betray the spirit of the constitution by making appointments on the basis of quotas,” said Eva Sáenz, professor of constitutional law at the University of Zaragoza, who wants a lottery to decide which qualified candidates are appointed to the judicial council if Parliament cannot decide this.
“The judges in Spain are independent, but the real danger is that the higher courts tailor their judicial decisions on grounds of political preference.”
“It is extremely important to change the way in which the parties reach an agreement,” said Pérez de los Cobos. “It is probably time to rethink the model.”