This analysis was written by Nino Tsereteli, Research Officer at DRI, in consultation with Dr. Joan Solanes Mullor, Professor of Constitutional Law at Universitat Pompeu Fabra, Department of Law.
A constitutional crisis long in the making peaked in Spain in these past few days. In an attempt to overcome a deadlock hindering the renewal of the constitutional court, the government led by the Spanish Socialist Worker’s Party tried to simplify the appointment of judges through a fast-track legislative reform. By amending laws that govern the appointment of Spain’s judiciary powers, the reform would have facilitated the renewal of four constitutional court judges whose mandates expired in June 2022.
While the Congress of Deputies (Spain’s lower chamber of a bicameral parliament) approved the reform on 15 December, the main opposition parties, the conservative People’s Party (PP) and the extremist Vox party, appealed to the Constitutional Court. The Court, which is currently operating with a conservative majority and has the four judges with the expired mandate, ruled on Monday 19 December 2022 to suspend the government’s legislative proposal.
The Senate (the upper chamber), which was supposed to ratify the law passed by the Congress, appealed the decision. In another session held on 21 December, the court dismissed the appeal, upholding its decision to suspend the legislative proposal.
How did Spain end up in this deadlock?
The main political parties have clashed over judicial appointments for many years. The composition of the General Council of the Judiciary has been disputed for four years and the Constitutional Court’s composition since June 2022. Politicised appointment processes have allowed political parties to seek influence or control over courts by installing loyal people in key judicial positions. It is telling that perceived levels of judicial independence among the general public and companies are rather low. In a 2022 survey, almost half of the Spanish judges insisted that the government as well as parliament have failed to respect their independence in the past three years. They rated the independence of the General Council of the Judiciary very low as well, which is hardly surprising in view of the prolonged political struggle on whom to appoint to the Council.
The renewal of the General Council of the Judiciary has been due since 2018 due to the expiry of the mandates of its 20 members. Under the current system, the Parliament appoints all Council members, including its judge-members. This is subject to a qualified majority of 3/5. Such a high decision-making threshold is meant to ensure that the opposition has a say in who becomes the Council members, making the judicial body less susceptible to political capture by the ruling party. However, the lack of an agreement with the opposition since 2018 has led to the deadlock which continues until now. The PP has demanded compromise on matters unrelated to the judiciary in exchange for its agreement on the renewal of the Council. Given the non-renewal, the Council has continued to function on an interim basis, which has meant that 20 of its members with anexpired mandate have remained in their positions.
A government set on ending the deadlock
In 2020, the government led by social democrat Pedro Sánchez attempted to lower the decision-making threshold by which Parliament appoints members of the Council, but the EU raised concerns and the government withdrew this legislative initiative. Importantly, while the Council continued to operate on an interim basis, it was precluded by law from making appointments to top judicial positions, such as those of the court presidents and Supreme Court judges. This, according to the Supreme Court, meant that it operated with 14 % fewer judges than required by law and could issue 1000 fewer decisions per year, undermining its efficiency.
The persisting failure to renew the Council membership triggered calls by judges for changing the system and letting judges elect the judge-members of the Council from among themselves. Various expert bodies as well as the EU/CoE recommend such a solution as means of insulating judges and judiciaries from political interferences. The most recent 2022 report of the European Commission recommended Spain to proceed with the renewal of the Council and initiate, immediately after its renewal, a process to adapt the appointment procedure.
The General Council of the Judiciary has been implicated in the most recent chapter of the crisis involving Constitutional Court reform as well. Out of the four expired seats on the Constitutional Court, the Government is entitled to appoint judges to fill two seats, and the General Council of the Judiciary - the other two. However, the law requires that all these vacant positions are filled simultaneously. This means that by failing to nominate the positions that fall under their responsibility, the Council also blocks the governmental nominations.
Consequently, in the latest legislative initiative, the government proposed to remove the requirement of simultaneous nominations and lower the threshold to be reached in the Council for the latter to be able to nominate constitutional court judges from a qualified to a simple majority. The opposition, however, presented this initiative as the government’s effort at court packing.
The clear political affiliations of candidates the government had proposed (including the former Minister of Justice) added weight to the opposition’s accusation. Currently, conservative judges are in the majority, with only five left-leaning judges among 12 judges altogether. Bearing in mind that the mandates of a third of the court’s judges – three conservatives and one left-wing – have expired, the renewal could tilt the balance of the Court. The opposition therefore tries to thwart the change and maintain the conservative majority.
While the government declared that it would abide by the Constitutional Court ruling, the Prime Minister has said that the government will “adopt all relevant measures” to end the impasse and that it will do so in line with the law and the Constitution.
Is Spain on a similar track to Poland and Hungary?
These developments bear some resemblance with the ones in Poland and Hungary in terms of the politicization of judicial governance and its consequences for judicial independence. Politicisation has been an issue in all three countries, in various forms and to varying degrees. However, it seems that checks and balances work somewhat better in Spain, compared to the other two countries.
In contrast to Poland, no political party in Spain managed to fully capture the Council or the Constitutional Court because of the way that decision-making processes are structured. The situation is rather the opposite: checks and balances have resulted in a deadlock, because parties are unwilling to compromise. These party attempts to influence the composition and functioning of judicial institutions shows that Spain still has a rather weak culture of respect for judicial independence. For years now, Spanish politicians have proposed candidates with obvious political affiliations and failed to compromise with each other on respective candidate proposals. As a consequence, judicial appointments have become a battleground for party politics. This differentiates Spain from other EU members, such as Germany, where political bodies are also involved in judicial appointments. These processes in Spain contribute to the perception of courts as lacking independence and could potentially affect output independence in politically sensitive cases.
The Spanish government seems generally responsive to criticism from Brussels, which has resulted in the withdrawal of problematic legislative drafts in the past. However, this does not mitigate the fact that political parties’ efforts remain self-serving rather than focused on merit-based selection to the bodies the members of which are supposed to have both competence and integrity. Such a focus would need a deeper change to judicial appointments.
Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up for DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.