Rule of law, judicial independence and government of the judiciary in Spain

• Pages: 527-550
• Author: Sergio Díaz Sánchez

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RULE OF LAW, JUDICIAL INDEPENDENCE AND GOVERNMENT

OF THE JUDICIARY IN SPAIN

SERGIO DÍAZ SÁNCHEZ

Predoctoral Researcher. Public Universit y of Navarre (UPNA). Spain.

SUMMARY: 1. INTRODUCTION. 2. THE UNIQUE CASE OF SPAIN: PAR-

LIAMENTARY ELECTION OF ALL COUNCIL OF JUDICIARY MEMBERS.

2.1. Constitutional framework and early legislative developments. 2.2.

Jurisprudence of the Constitutional Court and subsequent develop-

ments. 3. EUROPEAN STANDARDS FOR THE ELECTION OF THE MEM-

BERS OF THE COUNCILS OF THE MAGISTRATURE. 3.1. Standards within

the Council of Europe. 3.2. Standards within the European Union. 4. THE

PRIMACY OF THE DEMOCRATIC PRINCIPLE? 5. PROPOSED SOLUTIONS.

1. INTRODUCTION.

One of the pillars on which the rule of law is based, regardless of whether

one starts from a formal or substantive conception of the rule of law, has been

and continues to be judicial independence. Craig has pedagogically and simply

explained the importance of judicial independence in relation to one of the

basic principles of the rule of law, namely the principle of legality.1 The courts

play an essential role in ensuring that the executive and legislative powers do

not exceed the limits of the norms that serve as the legal basis for their actions,

which, if exceeded, imply the nullity or invalidity of such actions. Consequently,

the courts that are called upon to control legislative and executive activity must

1 CRAIG, Paul, “Definición y conceptualización del Estado de Derecho. La importancia de la

independencia judicial”, Teoría y Realidad Constitucional, no. 50, 2022, pp. 167.

SERGIO DÍAZ SÁNCHEZ

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be independent and free from any interference that might subject them to the

will of the political power. Otherwise, there is a risk that they will not observe

these limits or that they will interpret them extensively, “legitimizing legislative

or executive actions that should be annulled”.2

In the specific case of the Spanish state, the risk of a lack of judicial

independence with respect to the political power, in its legislative or executive

aspect, is clearly observed because the Third Chamber of the Supreme Court

controls the acts of the Council of Ministers and the Second Chamber is in charge

of prosecuting the members of the Government and the Parliament. This scheme

is reproduced with respect to the Autonomous Communities (regions) through

the Chambers for Contentious Administrative proceedings of the High Courts of

Justice for the Councils of Government and the Civil and Criminal Chambers for

the members of regional parliaments.3 It is for this reason that the temptation

to influence the appointment of judges with spurious intentions to these judicial

bodies should not be surprising.

This long-standing problem was addressed after World War II by the French

Constitution of 1946 and the Italian Constitution of 1947. Through the creation

of Councils of Magistracy or Judiciary, the aim was to remove the application

of the professional status of the judge from the Ministry of Justice, which until

then had been competent to do so. The idea was to create independent bodies

to administer everything related to promotions, appointments and disciplinary

matters, which, for obvious reasons, could influence the legal profession and the

independence of its members.4 In Spain, due to Franco’s dictatorship, it was

not until the transition to democracy and the 1978 Constitution that such a body

could be established.

2. THE UNIQUE SPANISH CASE: PARLIAMENTARY ELECTION OF ALL

COUNCIL OF THE JUDICIARY MEMBERS.

2.1. Constitutional framework and early legislative

developments.

The Spanish Constitution regulates the General Council of the Judiciary

in paragraphs 2 and 3 of Article 122, the content of which is reproduced in its

2 Ibidem, p. 167.

3 MURILLO DE LA CUEVA, Pablo Lucas,       

debate constitucional, Reus, Madrid, 2018, p. 159.

4 REQUERO IBÁÑEZ, José Luis,    ,

Fundación para el Análisis y los Estudios Sociales, Madrid, 1996, p. 53.