It remains to be seen if the plenary session of the governing body of judges appoints its two candidates on December 22
MADRID, 30 (.)
The Constitutional Court (TC) has dismissed the request of three progressive magistrates to examine the two candidates appointed by the Government to form part of the guarantee court — the former Minister of Justice Juan Carlos Campo and the former high office of Moncloa Laura Díez –. It has agreed to wait until the plenary session of the General Council of the Judiciary (CGPJ) on December 22 to find out if it appoints its two magistrates.
This decision takes place after yesterday Tuesday the Government approved in the Council of Ministers the names of the two magistrates that it is up to the Constitutional Court to designate. That same day, sources from the guarantee court consulted by Europa Press explained that, for the moment, Campo and Díez would not be examined alone in the Plenary of the TC, but warned that it was a temporary decision that could be reviewed.
This Wednesday, within the framework of the meeting of the Constitutional Plenary, the magistrates Cándido Cónde-Pumpido, Ramón Sáez and Inmaculada Montalbán have proposed to advance the examination to the Executive candidates. According to legal sources consulted by Europa Press, the president of the court, Pedro González-Trevijano, has sought the opinion of the rest of the magistrates, who have spoken out against it, for which reason he has chosen not to bring forward the plenary for now to evaluate the names proposed by Moncloa.
The same sources explain that the court will wait until December 22, when the next Plenary of the CGPJ is scheduled to be held, to find out if the body also proposes the two magistrates that it is responsible for designating. CGPJ sources, however, point out that there is no certainty that the Council will choose its two candidates that day.
THE EXAMINATION OF THE CANDIDATES
The legal sources consulted yesterday by this agency after Moncloa’s announcement specified that if the CGPJ delayed in communicating its candidates, the Constitutional Court could proceed to review the suitability of the candidates proposed by the Government. In this situation, they did not rule out that the Moncloa nominees would have to face the Constitutional exam alone.
The court must analyze the suitability of the candidates, verifying that they meet the legal requirements to be a Constitutional magistrate — being Spanish and judges, prosecutors, university professors, civil servants or lawyers, all of them jurists of recognized competence with more than 15 years of professional practice. –.
Campo and Díez would replace the president of the TC, Pedro González-Trevijano, and Antonio Narváez, the two magistrates who were proposed by the Government of Mariano Rajoy, while the vice president, Juan Antonio Xiol, and Santiago Martínez-Vares, must be relieved by those designated by the CGPJ.
These four magistrates, whose mandate expired on June 12, make up the third that the Constitution entrusts to name the Government and Council, hence the doubts raised about the possibility that they can take possession by halves (two by two) or if only a complete renovation is possible (all four at the same time).
At first, sources from the court of guarantees saw it difficult for the Executive candidates to overcome the filter of the Plenary without the two from the CGPJ, because -they explained- the Council could not fulfill its constitutional function due to the reform of the Law Organic of the Judiciary approved in March 2021 that prohibits the body from making discretionary appointments in the judicial leadership while it has expired, a situation in which it has been going for almost four years.
However, the same sources now point out that the scenario changed last July, when PSOE and Unidas Podemos promoted the approval of a second reform so that the Council would recover its power to fill vacancies in the high courts, although only for the Constitutional one.
THE NEGOTIATIONS IN THE CGPJ
Since then, the progressive and conservative members have been negotiating their two names with little progress. The two blocks have promised to hold a first vote on December 22, although CGPJ sources emphasize that this does not guarantee that there will be white smoke that day. At the moment, the only formal candidate is the magistrate of the Supreme Court (TS) José Manuel Bandrés on behalf of the progressive current.
After Moncloa’s movement yesterday, sources from the governing body of the judges consulted by Europa Press assured that the appointment of Campo y Díez complicated the conversations within the CGPJ because for the conservative wing the nominees by Moncloa are two excessively politicized profiles that would have to be compensated by betting from the Council on two faultless applicants from the point of view of impartiality.
This Wednesday, at the end of a brief meeting, the negotiators from the conservative sector of the CGPJ have requested more time from their progressive counterparts to assess the impact of the appointments made by the Government in the internal negotiations of the Council. Thus, they have asked their progressive counterparts to meet tomorrow to hold the conservative conclave tonight and be able to go to the negotiating table with a clear position.
TC sources consider it feasible for the two government candidates to take office alone because, they state, one thing is that the four candidates cannot go due to legal impediment –as was the case before the second reform of the Organic Law of the Judiciary– and another that the Constitutional cannot be renewed because one State body blocks another, since -according to they allege– since July the renewal of the court of guarantees depends solely on the will of the members of the Council.
In addition, they recall that there is already a historical precedent for the incomplete constitution of the TC. The first Constitutional magistrates were appointed on February 14, 1980 and days later, on the 25th, they took office. There were only ten because the two from the CGPJ were missing and it had not yet been constituted. The court was not fully constituted until July 12, but until then it functioned as a college of magistrates.
FROM A CONSERVATIVE MAJORITY TO ANOTHER PROGRESSIVE
Faced with this thesis, other sources of the TC maintain that the Constitution does not allow any interpretation other than that the renewal be made with the full third (the four magistrates), because otherwise it would mean ‘de facto’ doing it by sixths (two magistrates). .
And they point out as a favorable precedent for this position what happened in 2004, when the CGPJ appointed Pascual Sala and Ramón Rodríguez-Arribas, and the Government of José María Aznar, already in office after the electoral victory of the PSOE with José Luis Rodríguez Zapatero, opted for not designating its two candidates, who were finally appointed by the new Socialist Executive, with Manuel Aragón and Pablo Pérez-Tremps.
Thus, the key to the plenary session will be held by the current conservative majority of the TC, from 6 to 5, since the position of magistrate Alfredo Montoya –who must fill the Senate– remains vacant.
It should be remembered that, if Campo and Díez obtained the approval of the Plenary without the two from the CGPJ, the majority of the Constitutional Court would change because González-Trevijano and Narváez, at the time nominated by the Rajoy Executive, would be replaced by the two sent by the Cabinet of Sánchez, configuring a progressive majority of 7 to 4, in the absence of the two of the CGPJ.
