The Venice Commission of the Council of Europe has adopted, during its 144th plenary session, an opinion on the manner of election of the judicial members of the General Council for the Judiciary of Spain.
Following the non-election by parliament of the judicial members of the General Council of the Judiciary, the latter was tasked in 2024 to make a proposal for a reform of the election system with direct participation of the judges and in line with the highest European standards. The General Council of the Judiciary proposed two alternative options. The President of the General Council of the Judiciary requested the opinion of the Venice Commission on both options.
Two options for reform
The two options developed by the General Council of the Judiciary differ primarily in the involvement of the Spanish Parliament in the election process. Option 1 provides for the direct election of the judicial members by the other judges from among candidates to be endorsed by 25 judges or a judicial association. Option 2 provides for the election of the judicial candidates by parliament with a 3/5 majority from a shortlist of candidates directly elected by the judges from among candidates endorsed by 30 judges or a judicial association.
The Commission found that option 1 complies with the standard of peer election, but does not suffice to rule out internal politicisation, and recommended additional measures.
The Commission found that option 2, while introducing a phase of direct election by judges, does not meet the standard of peer election because it leaves the final choice to a political body.
In this opinion, the Venice Commission reiterates that, while there is no obligation to establish a judicial council, the European Court of Human Rights has held that "where a judicial council is established, the authorities should be under an obligation to ensure its independence from the executive and legislative powers in order to, inter alia, safeguard the integrity of the judicial appointment process." European standards provide that the judicial members of the judicial council should be judges elected by their peers in a manner ensuring broad representation of the judiciary.
The non-judge members of the judicial council, on the other hand, may be elected by parliament at a qualified majority, thus providing democratic legitimacy and preventing corporatism. The reform in question should align the current system of election of the judicial members of the CGJP with the European standards on peer election.
The Venice Commission underlined however that the election process should be protected not only from external political influence, but also from internal politicisation; in other words, not only from direct interference by political actors, but also from indirect dependence on, or alignment with, such actors - notably through judicial associations.
The Venice Commission will publish the as-adopted opinion on Monday 13 October.
