The General Council
of the Judiciary in 25
questions
Author: Joaquín Delgado Martín. Magistratua. Magistrate. General Council
of the Judiciary Lawyer.
The General Council of the Judiciary of Spain
INDEX
1.- THE JUDICIAL INDEPENDENCE................................................................................................. 3
QUESTION 1.- WHY IS THE INDEPENDENCE OF JUDGES IMPORTANT?...................................................... 3
QUESTION 2.- WHAT DOES THE INDEPENDENCE OF JUDGES MEAN?....................................................... 3
2.- THE GOVERNMENT OF THE JUDICIARY IN THE WORLD................................................. 4
QUESTION 3.- WHAT MODELS OF GOVERNMENT OF THE JUDICIARY ARE THERE IN THE WORLD? .......... 4
QUESTION 4.- WHAT DOES THE ASSIGNMENT OF THE GOVERNMENT FUNCTIONS OF THE JUDICIARY
TO A SPECIFIC AUTONOMOUS BODY OF A PROFESSIONAL NATURE –THE COUNCIL- CONSIST OF? .......... 7
3.- THE SPANISH SYSTEM OF GOVERNMENT OF THE JUDICIARY...................................... 8
QUESTION 5.- WHAT IS THE HISTORICAL BACKGROUND OF THE GENERAL COUNCIL OF THE
JUDICIARY? ............................................................................................................................................ 8
QUESTION 6.- WHAT IS THE CONFIGURATION OF THE GOVERNMENT SYSTEM OF THE JUDICIARY IN
SPAIN AT THE MOMENT? ........................................................................................................................ 9
4.- THE GENERAL COUNCIL OF THE JUDICIARY: CONCEPT, NATURE AND
FUNCTIONS.......................................................................................................................................... 11
QUESTION 7.- WHAT IS THE GENERAL COUNCIL OF THE JUDICIARY?.................................................. 11
QUESTION 8.- WHAT IS THE OBJECT OF THE GENERAL COUNCIL OF THE JUDICIARY? ......................... 12
QUESTION 9.- WHAT INSTRUMENT IS IT PROVIDED WITH FOR THE EXECUTION OF ITS COMPETENCES?14
QUESTION 10.- WHAT ARE THE RULES THAT REGULATE THE GENERAL COUNCIL OF THE JUDICIARY?17
5.- COMPOSITION............................................................................................................................... 18
QUESTION 11.- HOW MANY MEMBERS ARE THERE IN THE GENERAL COUNCIL OF THE JUDICIARY?.... 19
QUESTION 12.- WHERE DO THE MEMBERS OF THE GENERAL COUNCIL OF THE JUDICIARY COME
FROM? .................................................................................................................................................. 20
QUESTION 13.- WHO APPOINTS THE MEMBERS OF THE COUNCIL? ....................................................... 21
QUESTION 14.- WHAT IS THE PROCEDURE TO APPOINT THE MEMBERS OF THE GENERAL COUNCIL OF
THE JUDICIARY? ................................................................................................................................... 21
QUESTION 15.- WHAT SCHEME DO THE MEMBERS OF THE COUNCIL SUBMIT TO?................................ 23
QUESTION 16.- WHAT LENGTH OF TIME ARE THE MEMBERS OF THE GENERAL COUNCIL OF THE
JUDICIARY APPOINTED FOR? ................................................................................................................ 24
6.- COMPETENCES ............................................................................................................................. 24
QUESTION 17.- WHAT ARE THE COMPETENCES OF THE GENERAL COUNCIL OF THE JUDICIARY TO
GUARANTEE THE INDEPENDENCE OF THE JUDGES?............................................................................... 25
QUESTION 18.- WHAT ARE THE COMPETENCES OF THE GENERAL COUNCIL OF THE JUDICIARY IN
RELATION TO THE ORGANIZATION AND PERFORMANCE OF THE SYSTEM OF JUSTICE?.......................... 27
QUESTION 19.- WHAT ARE THE COMPETENCES OF THE GENERAL COUNCIL OF THE JUDICIARY IN THE
SCOPE OF ITS RELATIONSHIP WITH OTHER NATIONAL INSTITUTIONS? ................................................. 30
QUESTION 20.- WHAT COMPETENCES HAVE BEEN AWARDED TO THE GENERAL COUNCIL OF THE
JUDICIARY CONCERNING THE INTERNAL ORGANIZATION AND PERFORMANCE?................................... 31
QUESTION 21.- WHAT OTHER COMPETENCES DOES THE LAW AWARD TO THE GENERAL COUNCIL OF
THE JUDICIARY? ................................................................................................................................... 32
7.- ORGANIZATION AND PERFORMANCE .................................................................................. 33
QUESTION 22.- WHAT IS THE INTERNAL STRUCTURE OF THE GENERAL COUNCIL OF THE JUDICIARY?33
QUESTION 23.- HOW DOES IT WORK?................................................................................................... 34
QUESTION 24.- WHAT AUTHORITIES BELONG TO THE GENERAL COUNCIL OF THE JUDICIARY? .......... 36
QUESTION 25.- WHAT ARE THE TECHNICAL BODIES OF THE GENERAL COUNCIL OF THE JUDICIARY
AND HOW ARE THEY ORGANIZED?........................................................................................................ 43
8.- COMPLEMENTARY INFORMATION ....................................................................................... 47
8.1.- INFORMATION IN THE WEB SITE .................................................................................................. 47
8.2.- BASIC BIBLIOGRAPHY .................................................................................................................. 48
Joaquín Delgado Martin
-2-
The General Council of the Judiciary of Spain
1.- THE JUDICIAL INDEPENDENCE
Question 1.- why is the independence of judges important?
Faced with the violation of a right recognized by the legislation (conflict)
originated by the action of an individual or a public institution, the State must be
capable of protecting the citizen who holds the right; this protection is applied by
granting a public body the power to solve the conflict through the implementation
of the Law (jurisdictional or judicial duty).
It consists of a State duty strictly necessary both, to prevent that people
solve the conflict by their own means, making coexistence easier, and to protect
the citizens against the abuse of the public authorities. In one word, it is relevant
to supervise the legitimate rights and interests of the people and of the firms, as
well as to control the governing authorities’ actions to guarantee their full
submittal to the Law.
“The independence of the judges in the exercise of the duties that have been
assigned to them and their freedom in the face of all type of interference from
any other power holder represents the final stone in the building of the lawful
constitutional democratic State” (LOEWENSTEIN)
In a Lawful State with a democratic performance it should be possible to
demand the resolution of a conflict, after the process of a trial with full guarantees
(just and proper trial), by a public body that is an impartial or neutral body to the
parts and to other public bodies (independence). This function is granted to the
Judge as a State body and his independence is guaranteed: it does not mean
guaranteeing independence as an end in itself, but as a means to safeguard the
impartiality of the judging person.
The independence is a “necessary condition in order for the Justice to be able to
perform in a specific case” (SERRA DOMÍNGUEZ)1
Question 2.- What does the independence of judges mean?
When a judge solves a case, he must be exempt or free of foreign influences
and interventions in the compliance of his duties, whether they come from the
government, the parliament, the electorate or the public opinion2, or even if they come
from the government bodies of the judiciary themselves3, or from the other judges4.
1
Manuel SERRA DOMÍNGUEZ, “Constitución y designación del Consejo General del Poder
Judicial (Constitution and designation of the General Council of the Judiciary)”, within the
collective work “El Gobierno de la Justicia. El Consejo General del Poder Judicial (The
Government of the Justice. The General Councils of the Judiciary)”, edited by the University of
Valladolid, Valladolid, 1996, pages 173 and followings.
2
Karl LOWENSTEIN, “Constitution Theory”, mentioned work, page 295.
3
According to article 4 of the Statute of the Latin American judge, “within the exercise of
jurisdiction, judges are not subject to higher legal authorities, without prejudice to the right of the
later to revise the jurisdictional decisions through the claims legally established, and the power
that each national legal system confers on the jurisprudence and on the precedents issued from
Joaquín Delgado Martin
-3-
The General Council of the Judiciary of Spain
A democratic State must establish all the necessary mechanisms to
guarantee such independence: some of them refer to the statute of the Judge,
understood as the set of rights and obligations that affect him in the exercise of
the legal performance (incompatibilities and prohibitions, immovability…); and
some others refer to the State architecture itself, in such a way that a guarantee
exists as to the fact that no other public authorities might influence a judge when
he is taking a decision within the exercise of his duties.
2.- THE GOVERNMENT OF THE JUDICIARY IN THE WORLD
Question 3.- What models of government of the judiciary are there in the
world?
There are three models of government of the judiciary within the
democratic States:
•
MODEL A: ASSIGNMENT TO A LEGAL BODY
o Through this model, the high judicial body in the country (High
Court or Supreme Court) gathers the jurisdictional function and
the Supreme Courts and Supreme Tribunals”; this Estatuto was approved by the IV Latin
rd
th
American Legal Summit celebrated in Santa Cruz de Tenerife (Spain) on 23 and 25 May 2001.
4
Article 7 of the Latin American Code of Legal Ethics states that “the judge not only is required to
be ethically independent but also not to interfere in the independence of other colleagues”; this
Code was approved by the XIII Latin American Legal Summit, which took place in the Dominican
st
nd
Republic on 21 and 22 May 2006.
Joaquín Delgado Martin
-4-
The General Council of the Judiciary of Spain
•
•
the governing function in relation to the remaining National
bodies5.
o This model is well extended in America, due to the influence of
the United States’ system.
o It emerges in relation to the original system in which there is no
such a thing as a legal career (there is no career promotion),
and in which judges are appointed for life and are selected
between jurists (lawyers…) with a prestigious professional life.
o It is provided with different modalities, which depend on the way
the members of the Supreme Tribunal or Court are appointed:
by the legislative branch of government (Costa Rica), by the
government with the approval of the legislative branch
(Panama), by popular election or by the Governor (several of
the USA States); with a possible previous proposal from the
Supreme Court (Chile) or by a body created to that effect and
consisting of judges (Venezuela)
MODEL B: ASSIGNMENT TO A NON LEGAL BODY
o Government duties are assigned to an executive branch of the
government body (normally the Department of Justice).
o It consists of a model belonging to continental Europe from the
time of the origin of the State regulated by the Rule of Law,
although in many countries there has been an evolution
towards the formula of the Council.
o When it originates it is linked to a judge-civil servant system that
is integrated within an Administrative career or body the access
to which is achieved through getting over some tests that certify
the required technical-legal knowledge, and within which
promotion is possible along the professional life. The Law
regulates all that is related to the rights and duties (statute) of
the judge, thoroughly. The application of the statute of the judge
concerns the executive branch, with a full submission to the
legislation6. Additionally, its decisions are open to claims before
the courts and, therefore, they are subject to judicial control.
o The executive branch is also in charge of the duties related to
the material and personal means at the service of the judicial
bodies, which traditionally concern the executive branch in the
European continental system.
MODEL C: ASSIGNMENT TO A PROFESSIONAL AND
AUTONOMOUS BODY
o This model originates after the Second World War in several
European countries (France and Italy), as a way to guarantee
5
Manuel CARRASCO DURÁN, “Estudio comparado de la regulación constitucional del gobierno
del poder judicial en España, Portugal y los países de Iberoamérica (Comparative Study of the
constitucional reglamentation of the government of the judiciary in Spain, Portugal y the Latin
American countries)”, within the collective work “Derecho Constitucional para el siglo XX1
(Constitutional Law for the twenty-first century)”, including presentations and communications of
the VIII Latin American Congress of Constitutional Law (Sevilla, December 2005), Book II, pages
3357 and following.
6
Pablo LUCAS MURILLO DE LA CUEVA, “Modelos de Gobierno del Poder Judicial)Models of
Government of the Judiciary”, within the collective work “Ciudadanos e instituciones en le
constitucionalismo actual (Citizens and institutions within the present constitutionalism)”, editorial
Tirant Lo Blanch, pages 1039 and following.
Joaquín Delgado Martin
-5-
The General Council of the Judiciary of Spain
the independence of the judge in the face of possible pressures
or interferences coming from an executive branch body (the
Department of Justice) that negotiates all which concerns the
rights and obligations of the judge.
o It has later spread to different countries in Europe and America.
It has been implemented both in States that have traditionally
followed the model A of government through the executive
branch body (France, Spain), and in others that have followed
the model B of government through the judicial branch body
(Magistracy Council in Argentina)7.
o It has got several categories that will be examined at a later
stage.
There is no formula with a universal validity to guarantee the
independence of the judges; furthermore, their suitableness will depend directly
on the different political, legal and social circumstances that surround each
national system, and finally, on the political and legal culture of the country: in the
first model, it is attempted through the assignment of the government duties of
the judicial bodies themselves; in the second model, it is attempted through an
exhaustive regulation by means of the statute Law of the judges, while the
Department of Justice is limited to its mere application, complemented by the
judicial control of those application performances (the courts have a knowledge
of the appeal notice submitted by the interested party against the Department
decisions in this matter); in the third model, the guarantee of independence is
sought through the assignment of specific government functions to a professional
body that enjoys an autonomy and majorly consists of judges.
It has to be remembered that, in many countries where a Council for the
government of the judiciary has been created, the Supreme Court (model A) or
the Department of Justice (model B) still enjoy relevant governmental powers on
the legal system, which originates problems of adjustment and frictions which will
be greater or smaller depending on the legal-political culture of each country. As
an example, within model A, we may point at the existing relation between the
Supreme Court and the National Council of the Judiciary in Ecuador8.
Lastly, we must bear in mind that many States have not yet found an
optimum formula for the government of the justice to guarantee an independent
and efficient performance of the legal system, thus, it is normal to find different
specific reforms for each rule.
7
The Council of Argentina has been modified recently by means of the Law 26.080 promulgated
th
on 24 February 2006. See Ricardo HARO, “El Poder Judicial en el Estado Federal
argentino(The Judiciary within the Argentinean Federal State)”, within the collective work
“Constitutional Law for Derecho Constitucional para el siglo XXI (Constitutional Law for the
twenty-first century)”, with presentations and communications from the VIII Latin American
Congress of Constitutional Law (Sevilla, December 2005), Book II, pages 3305 and following.
8
Hernán SALGADO PESANTES, “El poder judicial en Ecuador (The judiciary in Ecuador)”, within
the collective work “Derecho Constitucional para el siglo XXI (Constitutional Law for the twentyfirst century)”, with presentations and communications from the VIII Latin American Congress of
Constitutional Law (Sevilla, December 2005), Book II, pages 3352 and following.
Joaquín Delgado Martin
-6-
The General Council of the Judiciary of Spain
Question 4.- What does the assignment of the government functions of the
Judiciary to a specific autonomous body of a professional nature –the
Council- consist of?
Within this system, a number of functions related to the organization and
performance of the judicial system is assigned to a professional body (consisting
of a varied range of individuals); majorly consisting of judges, although
individuals belonging to different groups, careers or interests in the judicial
system (such as lawyers, professors of legal disciplines…) do also take part in it;
this professional body usually enjoys a particular margin of autonomy for its
actions.
The Council is created with two possible aims: in the first place, to
contribute to guarantee the independence of the judiciary bodies; and, in the
second place, to extend the level of participation in the process of decision taking
that affect the legal system. Usually both aims come together, although in each
particular national judicial system one of them is more relevant than the other: for
example, in Spain (General Council of the Judiciary) the aim concerning the
guarantee of the jurisdictional independence prevails, focusing most of its
functions on the statute of the judge; while in California (Judicial Council) the aim
to propitiate the participation of judges and magistrates belonging to the different
jurisdictional grades prevails; this last aim also prevails within the magistracy
representative councils in Germany (consisting of judges only): the Präsidialrat,
which is configured as a consulting body which participates in the process of
electing the judges, and the Richterrat, also a consulting body for the general and
social questions within the members of the judiciary.
The configuration of the Councils within the international sphere varies
from country to country, depending on three factors, basically:
• Their composition (number, origin and manner of appointing their
members). While some consist exclusively of judges (for example the
Canadian Judicial Council); in other cases, the judges only conform a
majority, and individuals coming from other groups, careers or interests of
the judicial system (lawyers, professors of judicial disciplines…), or even
the representatives of other State bodies (some samples would be the
Supreme Judicial Council of Bulgaria, with the Minister of Justice, the
Presidents of the two Supreme Courts and the General Attorney taking
part in it; the Consel Supérieur de la Magistratura of France that is
presided by the President of the Republic and the Minister of Justice is its
Vicepresident; or the Italian Consiglio which, among others, consists of
three honorary members: the President of the Republic that presides it,
and the First President and the General Attorney of the Cassation Court)9
are also allowed to take part in the Council.
• The extension of their competences. While some Councils have merely
advisory functions (as happens in Germany with the Präsidialrat and the
Richterrat); others have limited competences (the Canadian Judicial
Council limits its functions to the training of judges and to the possibility to
establish codes of conduct for the judges and investigate the complaints
9
The Council of the Magistracy in Argentina (after the reform applied by Law 26.080 enacted on
th
24 February 2006) consists of three elected judges, six legislators appointed by the Parliament,
two lawyers appointed by those professionals’ direct vote, a representative of the Executive
Branch of Government, and by a representative of the academic and scientific area elected by
the National Interuniversity Council.
Joaquín Delgado Martin
-7-
The General Council of the Judiciary of Spain
•
on judicial conducts with the power to recommend the separation of the
judge to the Minister of Justice)10; and others are provided with broad
competences which, in some cases, even extend to the administration of
the material and personal means of the judicial bodies (Bulgaria,
Cyprus…).
And their own autonomous level in the execution of their functions. In
general, the rules design mechanisms to guarantee the working autonomy
of the Council, although their efficiency varies from country to country:
different level of financial autonomy, different capacity of selforganization…
Portugal is a particular case; there are two Councils in that country: the
Conselho Superior da Magistrtura ( for the judges of the justice courts or the
common courts) and the Conselho Superior dos Tribunais Administrativos e
Fiscais (for the contentious-administrative judges and prosecutors)11.
This system has had and is having a wide acceptance by the legislations
in the different States, and is being configured as the optimal organizational
solution both, to contribute to guarantee the independence of the judges, and to
allow for a higher participation in the process of decision-taking concerning the
organization and the performance of the judicial system (helping in the
improvement and modernization of the justice). Even in those countries where
no Council has been created, a strong autonomy is being granted to the agencies
and bodies in charge of the administration of the judicial system12.
3.- THE SPANISH SYSTEM OF GOVERNMENT OF THE JUDICIARY
Question 5.- What is the historical background of the General Council of
the Judiciary?
The General Council of the Judiciary was created by the Constitution of 1978,
following the models of other countries with which Spain enjoyed a geographic
proximity (France, Italy, Portugal), and it then represented a novelty within the
Spanish judicial system.
10
The Consiglio della Magistratura of the Swiss canton of Tesino has also a competence on the
supervision of the performance of the justice to issue a report for the Grand Consiglio, to state the
problems detected in the performance to the Government of the canton and to apply a
disciplinary action to the judges.
11
Antonio MOREIRA BARBOSA DE MELO, “A Administraçao da justice no Estado de Dereito
democrático: o caso português”, within the collective book “Derecho Constitucional para el siglo
XXI (Constitutional Law for the twenty-first century)”, with accounts and communications of the
VIII Latin American Congress on Constitutional Law (Sevilla, December (2005), Book II, pages
3287 and following.
12
This issue is addressed in the document “Mission, vision, rules and other relevant matter of the
councils”, Conclusions of the Work-Group on the subject of Réseau Européen des Conseils de
nd
rd
and 3 of June 2005), page 3. Available in the Web site:
Justice (Barcelona, 2
http://www.encj.eu/encj/
Joaquín Delgado Martin
-8-
The General Council of the Judiciary of Spain
Remote precedents may be found of institutions that, nevertheless, do not
have the same nature and purpose, specially because such type of organization
can only find its authentic raison d’être within the architecture of a democratic
regime. To this effect, we may mention the Head or Supreme Board, created by
decree on 6th December 1849; the Organizing Board of the Justice Department,
established by way of a Royal Decree on 20th October 1923; and specially the
Judiciary. This organization was created by a Royal Decree on 18th May 1917,
which was quickly revoked by a Real Decree dated 18th July, the same year, and
the institution did not have the chance to perform in an effective way during that
period; it was later restored by the Royal Decree of 21st June 1926 and then it
disappeared again through a Decree dated 19th May 1931; finally, the Law dated
20th December 1952 proceeded to establish a new Judiciary that lasted up to the
establishment of the constitutional democratic regime.
Question 6.- What is the configuration of the government system of the
Judiciary in Spain at the moment?
There is the figure of the Judge that belongs to a career or department of
the Public Administration (judicial career) in Spain and, traditionally, the
government of the judicial system has been assigned to a body from the
executive branch (the Ministry of Justice). The 1978 Constitution inserts a new
body within this framework, the General Council of the Judiciary, establishing a
model that gathers different actors with different functions assigned to them:
• The jurisdictional function (to judge and make execute what has been
judged): it only concerns the judicial bodies (Courts and Tribunals) which
are the only ones that really are part of the so called Judiciary.
• The function of managing the statute of the judges (professional career) is
assigned to the General Council of the Judiciary; which is also granted the
right to perform other functions that may contribute to the improvement of
the performance of the Justice Administration. It should be considered that
both, the parliament (in a significant way since the appointment is made by
the Congress and by the Senate) and the Judiciary, itself (the judges
propose 36 candidates among which the Parliament must choose 12),
participate in the system to appoint the members of the Council.
• The function of managing the necessary material and personal means for
the good performance fo the judicial bodies (the so called “judicial office”)
concerns the Executive Branch of Government: the Ministry of Justice and
the Autonomous Regions to which the competences in that area have
already been transferred.
Joaquín Delgado Martin
-9-
The General Council of the Judiciary of Spain
THE JUDICIARY IN SPAIN
STATE
LEGISLATIVE
BRANCH
JUDICIAL
BRANCH
Government of the
Judiciary:
Functions of government
and administration of the
professional statute of the
judges (becoming a
member, promotion,
training, appointments…)
and those related to the
performance of the judicial
bodies (inspection,
appointment of
replacement judges…)
The Judiciary in a
strict sense:
It consists of the
Judges when they
practice the
jurisdictional function
(to judge and to make
execute what has been
judged)
It concerns each one
of the Judges
It concerns the General
Council of the Judiciary
Joaquín Delgado Martin
EXECUTIVE
BRANCH
Administration of the
Justice Administration:
The management of the
material and personal
means (they are grouped
within the so called
“judicial office”)
It concerns the Ministry
of
Justice
(or
the
Autonomous Region in
the cases where
the competences in this
area have already been
transferred)
- 10 -
The General Council of the Judiciary of Spain
4.- THE GENERAL COUNCIL OF THE JUDICIARY: CONCEPT, NATURE AND
FUNCTIONS
Question 7.- What is the General Council of the Judiciary?
It is a constitutional, professional, autonomous body, mostly
consisting of judges, that performs competences related to the
government of the Judiciary with the object of guaranteeing the
independence of the judges in the exercise of the judicial
function.
•
•
•
•
•
•
The main features of the General Council of the Judiciary are the following
ones:
Constitutional body: it has been created directly by the Constitution, that
places it at the top of the structure of the State since it performs the function
of governing one of the three state branches of government (the Judiciary).
Professional body: it consists of a diversity of members, in such a way that
the decisions of the General Council of the Judiciary are taken in consensus
by its members (by applying the majority system ).
Autonomous body: The legislation provides it a status which guarantees
that it may carry on its competences within an autonomous regime, without
any subordination to the other government branches and bodies of the State.
o Its financial autonomy is to be remarked: it manages the funds
assigned to it every year in an autonomous manner. This way, the
Fundamental Law of the Judiciary states that it is the General Council
of the Judiciary’s duty to “make, lead the execution of and control the
compliance with the Council’s budget”.
Instrumental body: It is created with the main object of guaranteeing the
independence of the Judiciary (consisting of the judges when they exercise
the judicial function judging and having executed what has been judged).
Administrative body: it adopts decisions of an administrative nature in the
exercise of the competences that are assigned to it, specially concerning the
professional statute of the judge..
o The General Council of the Judiciary has no legislative authority. It
cannot elaborate rulings with the status of Law. Let us recall that the
legislative authority belongs to the Parliament of the State and the
Legislative Assemblies of the Autonomous Regions. Notwithstanding,
the General Council of the Judiciary can elaborate legal rulings (of a
general nature) of a statutory nature (the rulings of the General Council
of the Judiciary are of a lesser rank and are subordinated to the Laws);
see section 4.3.2.
o The General Council of the Judiciary is not a jurisdictional body: it has
not been assigned the function of judging, that is to say, it does not
solve the conflicts between individuals or between the latter and the
State through the application of the Law.
Legal body mostly consisting of judges: while 12 of its members are
judges, 8 are prestigious legal experts that come from other legal careers.
This way, we can affirm that it is not a self-governing body belonging to the
judges.
Joaquín Delgado Martin
- 11 -
The General Council of the Judiciary of Spain
Question 8.- What is the object of the General Council of the Judiciary?
WHAT IS THE OBJECT OF THE GENERAL
COUNCIL OF THE JUDICIARY?
MAIN FUNCTION
The General Council of
the Judiciary is not a
government
body
belonging to the judges
only, but it is related to
the full Judicial Branch
of Government, thus, its
functions
spread
beyond the decisions
related to the statute of
the Judge
TO GUARANTEE THE
INDEPENDENCE OF
THE JUDGES (4.2.1)
•
•
To participate in the
decisions about the
performance of the
judicial system (4.2.2)
Functions in relation
to other State
institutions (4.2.3)
Autoantolaketa funtzioa: BJKN beraren
barne antolaketa eta funtzionamendua
(4.2.4.)
A)
Main function: to guarantee the independence of the judges
The main function of the General Council of the Judiciary resides in guaranteeing
the independence of the Spanish judges in the exercise of the jurisdictional
function (to judge and make execute what has been judged). That is why the
main core of their competences is extended to the questions that affect the
professional career of the judges: selection and appointment, positions,
promotions, administrative situations, leaves and work permits, prohibitions and
incompatibilities, sanctioning authority…
By assigning these decisions to an autonomous legal body (the Council)
instead of assigning them to other State institutions, getting them out of the area
related to other State Government bodies (the Ministry of Justice which is placed
within the Government), an important source of external pressures on the activity
of the judges that may affect the independent exercise of their function, is thus
Joaquín Delgado Martin
- 12 -
The General Council of the Judiciary of Spain
limited.
Constitutional Court´s decision 108/1986 dated 29th June 1986:
“The functions that the Council should assume compulsorily are those that could be
most relevant for the Government to try and influence on the Courts: on the one
hand, the possible favoring of some Judges by means of appointments and
promotions; on the other hand, the possible troubles and damages they could suffer
due to the inspection and imposition of sanctions. Thus, the object of the Council
is, to deprive the Government of those functions and to transfer them to an
autonomous and separate body”
B) Secondary function: to participate in the decisions related to the functioning of
the judicial system.
The General Council of the Judiciary has also been assigned a number of
competences that, even though they do not relate to the direct management of
the courts, they do contribute to the improvement of the good performance of the
judicial system. In this way, it may be stated that the existence of the General
Council of the Judiciary has a second function of a secondary nature: to extend
the level of participation in the process of decision taking that affect the judicial
system. To this effect, the fact that the Council is a professional body where not
only judges take part (12 in all), but also legal experts of a renown prestige (8 in
all) that actually belong to the various sectors of the justice system and to the
different legal careers (public prosecutors, lawyers, university professors…),
must be considered.
Although the management of the material and personal resources of the
judicial system mainly belongs to the Ministry of Justice (or to the Autonomous
Regions that have assumed the competences in this matter), the General Council
of the Judiciary develops certain activities that affect the quality and
modernization of the justice system: to announce rules on certain accessory
aspect of the judicial actions, to write reports concerning the legal rules that affect
the organization and performance of the judicial system, to inspect the
functioning of the judicial bodies…
C) Functions related to its relation with other State institutions
On the other hand, the legal system grants another series of functions to
the General Council of the Judiciary that become relevant only from its
dimension as a high State institution that has been directly created by the
Constitution (constitutional body): It participates in the appointment of high
positions in the State, it makes reports related to the laws and other rulings that
are written by other public bodies…
D) Self-organizing function
The General Council of the Judiciary has been assigned a last group of
competences that is related to its self-organizing ability (as an expression of the
nature of its autonomous body): to appoint the General Secretary and the
members of its technical bodies, make and execute its budget, regulate its
organization and internal performance…
Joaquín Delgado Martin
- 13 -
The General Council of the Judiciary of Spain
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.
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.
14
Joaquín Delgado Martin
- 14 -
The General Council of the Judiciary of Spain
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).
Joaquín Delgado Martin
- 15 -
The General Council of the Judiciary of Spain
THE EXTERNAL REGULATION LEGAL AUTHORITY OF THE GENERAL COUNCIL OF
THE JUDICIARY
Article 110 of the Fundamental Law of the Judiciary states as follows:
“These regulations can regulate accessory conditions for the exercise of the rights and duties that
conform the judicial statute without innovating the former or modifying the latter as a whole. They may
be approved in the cases where they are required for the execution or application of this law, in those
cases where it is thus anticipated by this law or a different one and, specially, in the following cases:
1. Admission, promotion and specialization system within the Judicial Career, status of the interim
judicial civil servants and of the assistant judges and the theoretical and practical courses within
the Judicial School, as well as the organization and functions of the latter. To this effect, and
within the regulating development of the Judicial School’s organization and performance, the
composition of its Governing Board should be determined; in it, the Ministry of Justice, the
autonomous regions with competences in matters of Justice and the professional associations of
judges and magistrates should be necessarily represented.
2. Way of distributing the different shifts and providing for vacant and deserted positions to
judges and magistrates.
3. Minimum period of permanence in a position for judges and magistrates.
4. Procedure for the regulated tenders and way to apply for the provision of positions and
responsibilities of discretionary appointments.
5. Training programs for judges and magistrates and way to obtain specializing degrees.
6. Administrative situations of judges and magistrates.
7. Scheme of leave and work permits for judges and magistrates.
8. Consideration of the knowledge of the language as a preferential merit and of the autonomous
community’s own right to the provision of judicial positions within the territory of the
community itself.
9. Scheme of incompatibilities and file processing on questions that affect the statute of judges and
magistrates.
10. Contents of the judicial Scale, within the terms anticipated by this law.
11. Scheme of replacements, of the substitute magistrates, of the replacement judges, and of the
Justice of the Peace.
12. Performance and authority of the Government Chambers, of the Board of Judges and of other
governmental bodies, and elections, appointments and cessation of members of the
Governmental Chambers and Senior Judges.
13. Inspection of courts and tribunals and processing of complaints and claims.
14. Publication of judicial actions, appointment of days and times, setting the times for the public
audiences and constitution of the judicial bodies outside their head office.
15. Specialization of the judicial bodies, distribution of matters and papers and general rulings for
the provision and development of the duty service, without prejudice to the competences of the
Ministry of Justice or, in its case, the autonomous regions with competences in the field of
personnel.
16. Way to resign and to possess within the judicial bodies and drawing-up of displays.
17. Jurisdictional cooperation.
18. Honours and ways to address judges and magistrates and rules about protocol on judicial events.
19. Systems of rationalization, organization and measurement of the work that are considered
convenient to determine the work-load that might be borne by a jurisdictional body, as well as
to establish minimum homogeneous criteria for the making of distribution rules”.
And article 107.10,2nd of the LOPJ (Fundamental Law of the Judiciary) states the
following in relation to the court orders and other resolutions issued by the Supreme Court and
the remaining judicial bodies:
“To that effect, the General Council of the Judiciary, following the report from the competent
Administrations, will establish, by regulation, the manner in which the electronic books for
court orders must be made, how these court orders should be collected and their treatment,
circulation and certification method, in order to watch over their integrity, authenticity and
access, as well as to secure the compliance with the legislation in the matter of personal data
protection”.
Joaquín Delgado Martin
- 16 -
The General Council of the Judiciary of Spain
C) Making reports (advisory body)
The General Council of the Judiciary also makes reports in relation to the
laws and legal rules that will be written by other state bodies and which refer to
the judicial system and to the jurisdictional tutelage of the fundamental rights,
prior to the approval of those rules. See section 6.2.4.
D) Legitimisation to raise conflict cases before the Constitutional Court
Article 59 of the Fundamental Law of the Constitutional Court places the
General Council of the Judiciary among the constitutional bodies, so that it is
legitimized to rise conflict cases before the Constitutional Court in defence of its
competences.
E) Initiative in relation to other State institutions
The General Council of the Judiciary has not been assigned the legislative
initiative, that is to say, it cannot present any Bills of Law before the Parliament.
Nevertheless, it is not prevented from urging the Parliament, the Government of
the Autonomous Regions to adopt the measures and initiatives that it considers
necessary for the right performance of the judicial bodies (material and personal
means at the service of the justice administration:
A) Presentation of the Annual Report to the General Courts (article 109
LOPJ: Fundamental Law of the Judiciary).
B) Submittal of a list of requirements (article 37.2 LOPJ: Fundamental
Law of the Judiciary) to the Government or to the Autonomous Region
with competences in matters of justice.
Question 10.- What are the rules that regulate the General Council of the
Judiciary?
Article 112 of the Constitution
1.- The Fundamental Law of the Judiciary will
determine the constitution, performance and
government of the Courts and Tribunals, as well as the
legal statute of the career Judges and Magistrates,
that will constitute a unique Body, and the personnel
at the service of the Justice Administration.
2.- The General Council of the Judiciary is the
government body of the same. The fundamental law
will establish its statute and the system of
incompatibilities of its members and their duties,
particularly in the matter of appointments,
promotions, inspection and disciplinary system.
•
•
Article 122 of the Spanish Constitution
Fundamental Law 6/1985, dated 1st July, of the Judiciary (LOPJ), that has
been the object of different reforms in this matter.
Joaquín Delgado Martin
- 17 -
The General Council of the Judiciary of Spain
•
•
Regulation no. 1/1986, dated 22nd April, on the Organization and
Performance of the General Council of the Judiciary (published in the
Official State Bulletin dated 5th May 1986)
Other Regulations written by the General Council of the Judiciary within its
regulatory legal authority:
o Regulation 1/1995, dated 7th June, concerning the Judicial Career.
o Regulation 2/1995, dated 7th June, concerning the Judicial School.
o Regulation 3/1995, dated 7th June, concerning the Justice of the
Peace.
o Regulation 1/1997, dated 7th May, concerning the Judicial
Documentation Head Office.
o Regulation 1/1998, dated 2nd December, on the processing of
complaints
and claims concerning the performance of courts
and tribunals.
o Regulation 1/2000, dated 26th July, concerning the court governing
bodies
o Regulation 2/2000, dated 25th October, concerning the associate
judges
o Regulation 1/2003, dated 9th July, concerning judicial statistics
department
o Regulation 1/2005, dated 15th September, concerning the
accessory aspects of the judicial actions
o Regulation 2/2005 concerning the honours, way to address and
protocol in the solemn judicial events
The texts concerning these rulings may be looked up in the web site of the
General Council of the Judiciary (http://www.poderjudicial.es/): section General
Council of the Judiciary/ Judicial organization and attention to the citizen/ Judicial
Organization/ Summary of Judicial Law.
5.- COMPOSITION
The General Council of the Judiciary is a professional body, that is to say,
it consists of a diversity of individuals that adopt decisions as a group.
Both the body composition and the way its members are appointed vary
within the international scope. Both questions reflect the role of the Council within
the overall State legal authorities.
Joaquín Delgado Martin
- 18 -
The General Council of the Judiciary of Spain
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
Councils with a reduced
number of members (for
example the seven
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)
The General Council of the Judiciary
consists of:
• 20 members (named Vocales)
• and 1 President
Joaquín Delgado Martin
- 19 -
The General Council of the Judiciary of Spain
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
Council
belong
to
three
categories:
• Judges: Most of the
members of the Council
are judges. Usually, they
come from the different
areas and sections of the
judicial system. In some
countries, some of them
are members of the
Council on the grounds of
their way of life; others
are elected by the judges
themselves.
• Non-judicial
members.
They are elected, through
different channels, by the
interested groups related
to the judicial system,
and/or by the Parliament
and other State bodies.
• Ex-officio members due to
their particular position in
the State. In some
specific countries the
persons
holding
the
position of the President
of the Republic, the
Minister or Justice, the
President of the Supreme
Court or the General
Attorney are members of
the Council.
The members of the General Council of the
Judiciary belong to three categories;:
12 Members are judges or magistrates
(judicial members)
8 Members are legal experts of a renown
reputation (non judicial members)
The President of the Supreme Court who,
at the same time, holds the title of President
of the General Council of the Judiciary (exofficio member).
Most
of
the
members of the
General Council of
the Judiciary are
judges, which is
understandable if
we consider that
their main objective
consists
on
managing
the
statute
of
the
judges
Joaquín Delgado Martin
The legal experts
that are no judges
by profession,
provide their own
experience on the
performance of
the judicial system
from various
perspectives, thus
contributing to the
General Council
of the Judiciary’s
richer exercise of
its duties.
- 20 -
The General Council of the Judiciary of Spain
Question 13.- Who appoints the members of the council?
Who appoints the members of the council?
•
•
The 20 members of the General
Council of the Judiciary
(Members) are elected by the
Parliament (Congress and
Senate)
o Although some of them
(12) are appointed by
the judges themselves
(by themselves or
through judicial
associations)
The President is designated by
the Plenary of the General
Council of the Judiciary itself
(within its constituent meeting)
among the members of the
judicial career or legal experts
of renown competence
The formal appointment of the
Members and the President is made
by the King.
Question 14.- What is the procedure to appoint the members of the General
Council of the Judiciary?
A) Designation of the judicial Members
Each one of the two Chambers within the Spanish Parliament (Chamber of
Deputies and Senate) elects -by majority of three fifths- six members (Vocales)
among Judges and Magistrates from all judicial categories that will be proposed
for their appointment by the King according to the following procedure:
• The Judges and Magistrates, from all judicial categories, that are working
and are not members of the outgoing Council and do not provide any
service within the technical bodies of the same, can be proposed.
• The proposal for the appointment must be made by the Congress and the
Senate among the candidates presented to the Chamber by the Judges
and Magistrates according to the following steps:
o The candidates will be proposed, up to a maximum of three times
the twelve positions that are to be covered, by the professional
associations of Judges and Magistrates, or by a number of Judges
and Magistrates that represents, at least, 2% of all of those that are
working at the time. The decision about the maximum number of
candidates that are to be presented by each association and the
Joaquín Delgado Martin
- 21 -
The General Council of the Judiciary of Spain
maximum number of candidates that can be presented through the
signature of Judges and Magistrates will follow strict proportionality
criteria, according to the following rules:
o The 36 candidates will be distributed in proportion to the number of
affiliates in each association and to the number of non-affiliates to
any association; the latter will determine the maximum number of
candidates that may be presented through the signatures of other
non-affiliated Judges and Magistrates; all of this will be carried on
according to the data kept in the Register within the General
Council of the Judiciary, following what is stated in article 401 of
the present Fundamental Law, and no Judge or Magistrate will
have the possibility to back more than one candidate with his
signature.
o In the case where the number of Judges and Magistrates presented
with the backing of enough signatures is higher than the maximum
allowed and mentioned in the a.m. paragraph, only the candidates
backed by the higher number of signatures up to the required figure
will be considered. In the opposite case where the number of
candidates backed by the signatures is not enough to cover the
total number of 36, the remaining ones will be provided by the
associations, in proportion to the affiliate numbers; considering the
latter and in order to prevent any delays, the associations will
include a differentiated complementary list of candidates within their
initial proposal.
o Each association will determine, according to its statutes, the
system of election of the candidates that it is meant to present.
• Among the 36 candidates presented, according to the system described
above, 6 Members will be elected, first, for the Plenary of the Chamber of
Deputies, and once these 6 Members are elected, the Senate will elect the
other 6 among the 30 remaining candidates.
B)Designation of the non-judicial Members
Additionally, each Chamber within the Parliament will elect -by a majority
of three fifths- four Members among lawyers and other legal experts of renown
competence who have more than 15 years of experience in their career and who
are not members of the outgoing Council and do not provide any service within
the technical bodies of the same.
Joaquín Delgado Martin
- 22 -
The General Council of the Judiciary of Spain
MEMBERS
PROPOSED BY
THE CONGRESS
MEMBERS
PROPOSED BY
THE SENATE
TOTAL
MEMBERS
PRESIDENT
Among Judges
and Magistrates
Among legal
experts of
renown
competence
TOTAL
6
4
10
6
4
10
12
8
20
1
Designated by the Assembly of the General
Council of the Judiciary among the members
or the judicial career or legal experts or
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
Joaquín Delgado Martin
- 23 -
The General Council of the Judiciary of Spain
(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:
6.1- To guarantee the
independence of the
judges:
• Decisions related to the
professional statute
• Disciplinary legal
authority
• Protection of
independence
6.2.- On the organization
and performance of the
judicial system:
• Inspection of judicial
bodies
• Complaints on the
functioning of the
system of justice
• External legal authority
regulation
• Writing reports on legal
regulations on the
subject
• Reinforcement of
judicial bodies
6.3.- In its relation with other
State Institutions:
• Appointment of highranking-officials
• Annual report before the
Parliament
• Initiative to push other
institutions to adopt
measures
6.4.- On the internal
organization and
performance:
• Internal legal authority
regulation
• Appointment of General
Secretary and technical
bodies
• General Council of the
Judiciary budget
6.5.- Other competences
considered by the Law
Joaquín Delgado Martin
- 24 -
The General Council of the Judiciary of Spain
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
Judges, Training,
specialization
Appointment of the
members of the
judicial career
Decisions on
the
professional
career of the
Judge
Loss of the
condition of Judge
Assignments,
administrative
situations, leaves,
and permissions,
prohibitions and
incompatibilities
Sanctions for
Disciplinary
infractions
Joaquín Delgado Martin
- 25 -
The General Council of the Judiciary of Spain
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, noncompliance 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:
Joaquín Delgado Martin
- 26 -
The General Council of the Judiciary of Spain
•
•
•
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
Joaquín Delgado Martin
- 27 -
The General Council of the Judiciary of Spain
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
inspection?
o To obtain information on
the real activity and
situation of the judicial
bodies
o To control the level of
compliance with the
standards of
management in quantity
and in quality
o To effect a diagnose on
the organization and
performance of the
inspected judicial body.
The inspection may bring
about:
o The adoption of
measures to alleviate
the detected
situation, by the
General Council of
the Judiciary or by
another body, each
within its own
competence
o Or the request for
disciplinary
responsibility to the
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 2nd 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.
Joaquín Delgado Martin
- 28 -
The General Council of the Judiciary of Spain
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
collaborates with
other State
institutions,
contributing to the
improvement of the
technical quality of
the legal regulation.
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.
• Making and modifying the list of personnel as regards
Judges, magistrates, secretaries and staff working for
the Justice Administration.
• Fundamental Statute of judges and magistrates.
• Fundamental Statute of secretaries and the remaining
staff working for the Justice Administration.
• Processing rules or rules that affect the legalconstitutional aspects of the tutelage before the
ordinary Courts related to the practice of the basic
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.
Joaquín Delgado Martin
- 29 -
The General Council of the Judiciary of Spain
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.
Joaquín Delgado Martin
- 30 -
The General Council of the Judiciary of Spain
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)
Joaquín Delgado Martin
- 31 -
The General Council of the Judiciary of Spain
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.
Joaquín Delgado Martin
- 32 -
The General Council of the Judiciary of Spain
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, administrativecontentious 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.
Joaquín Delgado Martin
- 33 -
The General Council of the Judiciary of Spain
President
ASSEMBLY
Vicepresident
Members
Permanent
Commission
Other Commissions
Delegate
Board
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.
Joaquín Delgado Martin
- 34 -
The General Council of the Judiciary of Spain
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 26th
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
Joaquín Delgado Martin
- 35 -
The General Council of the Judiciary of Spain
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.
Joaquín Delgado Martin
- 36 -
The General Council of the Judiciary of Spain
A) President
Joaquín Delgado Martin
- 37 -
The General Council of the Judiciary of Spain
B) Vicepresident
Joaquín Delgado Martin
- 38 -
The General Council of the Judiciary of Spain
C) Assembly
Joaquín Delgado Martin
- 39 -
The General Council of the Judiciary of Spain
D) Permanent Commission
Joaquín Delgado Martin
- 40 -
The General Council of the Judiciary of Spain
E) Other Commissions
Joaquín Delgado Martin
- 41 -
The General Council of the Judiciary of Spain
F) General Secretary
Joaquín Delgado Martin
- 42 -
The General Council of the Judiciary of Spain
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.
Joaquín Delgado Martin
- 43 -
The General Council of the Judiciary of Spain
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:
Joaquín Delgado Martin
- 44 -
The General Council of the Judiciary of Spain
Joaquín Delgado Martin
- 45 -
The General Council of the Judiciary of Spain
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.
Joaquín Delgado Martin
- 46 -
The General Council of the Judiciary of Spain
8.- COMPLEMENTARY INFORMATION
8.1.- Information in the Web Site
Joaquín Delgado Martin
- 47 -
The General Council of the Judiciary of Spain
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,
28th to 30th September 1994), edited by the University of Valladolid,
Valladolid, 1996
VARIOUS AUTHORS, collective work “Constitución y Poder Judicial
Joaquín Delgado Martin
- 48 -
The General Council of the Judiciary of Spain
•
•
•
•
•
•
•
•
•
•
(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, 2nd and 3rd 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/
Joaquín Delgado Martin
- 49 -