In the face of resistance from the vast majority of Spanish judges, the Spanish government gave final approval yesterday to a judicial reform that critics say weakens judicial independence – at a time when public pressure on judges overseeing high-profile corruption cases is visibly growing.
The reform takes away from judges the power to nominate members of the General Council of the Judiciary, a powerful body that oversees judicial matters, and cuts in half the number of permanent positions in the body.
Combined, judges and legal experts say, the two moves will make the General Council of the Judiciary more easily politicized and thus judges, who answer to the body, will be more vulnerable to power-wielding from politicians and interests groups.
“It’s a direct attack on the judicial branch. It’s like giving the government the right to punish and reward judges, which makes our jobs more uncomfortable,” said Joaquim Bosch, a court of first instance judge and the spokesman for Judges for Democracy, one of two main magistrate associations.
The reform, backed by the governing Popular Party and a smaller conservative allied party, has been months in the making. And while not ending judicial independence, it follows a trend of increased encroachment of courts’ purview – considered vital in the separation of powers – and narrows the rights for citizens, experts say.
“This reform will undoubtedly coerce judicial independence and the public perception of judicial independence within a democracy,” says Julia Sevilla, a constitutional law expert in Universidad de Valencia.
The European Association of Judges, an umbrella group representing the continent’s magistrates, concurs. Last month, the group said in a statement specifically referring to the government’s reform that the changes “contravene normal standards of judicial independence.” The now passed reform “would tend to jeopardize the independence of the judiciary in Spain, in particular with regard to its relations with the executive and legislative branches of government.”
It also coincides with intense pressure in a series of high-profile cases of powerful people and institutions that have implicated bankers, the Spanish royal family, and most notably the PP hierarchy – all the way up to Prime Minister Mariano Rajoy – and some of its closest allies.
Moreover, the government is still planning to push through after summer an even more controversial reform of the judicial system that would transfer the power to investigate criminal cases from judges to prosecutors.
Judges do the investigating in Spain, mainly because prosecutors are not independent and ultimately answer to executive decisions of the government-controlled attorney general’s office. Thus, the government would direct prosecutors against itself.
“The justice system does need to be reformed to add resources and to strengthen its independence, but these reforms are not conducive to either,” Dr. Sevilla says.
The biggest pressure on judges is coming through the media. PP leaders and sympathetic news outlets often suggest judges are acting inappropriately, questioning their motives and independence. While those comments are protected by freedom of speech, they visibly exert undue pressure on magistrates.
“There is more pressure now because courts are overseeing many high-profile cases,” Judge Bosch says. “There is no precedent to having hundreds of officials and powerful people under investigation, many of them indicted. We are talking about people with power over media outlets, over institutions that can exert direct and indirect pressure to move public opinion and how judges carry out their investigations.”
The reforms passed Thursday and the next round planned for later this year will make it easier to sway the outcome “because the careers of judges could be threatened,” he says.
On Wednesday, Judge Elpidio José Silva, who was sidelined from a case he was overseeing against the former head of one of Spain’s biggest banks, denounced “all kinds of pressure that can be exerted on a judge.”
He asked the Judiciary Council for a writ known as “amparo,” designed to defend constitutional rights, to protect him from media pressures. But the body swiftly denied his request and instead opened up an investigation into his handling of the case for two serious offenses. Judge Silva says he is “worried” the body could end his career.
There is a powerful precedent: Baltasar Garzón, a judge famous for investigating global human rights abuses including those of former Chilean dictator Augusto Pinochet, lost his job in 2010 when the Judiciary Council found that he overstepped boundaries in a corruption case against PP leaders, a decision widely believed to have been a political witch hunt.
Mr. Silva is not the only judge under pressure. A military judge who was investigating corruption and embezzlement in the Air Force also announced this week she had requested amparo from the Judiciary Council, after being pressured by her ranking officers through several means to drop her investigation. And the judge overseeing the corruption and embezzlement case against Princess Cristina, the daughter of King Juan Carlos, and her husband has also said he has been under intense public pressure.
Pablo Llarena, a top regional judge in Barcelona and president of the Professional Association of Magistrates, Spain's largest judicial association, also criticizes the reform of the Council of Judiciary, though he says his association was disappointed, as opposed to worried.
“Our judicial independence is not annulled by this reform, although it does make it harder for the Council of the Judiciary to defend the independence of judges,” he says.
A window for change
Indeed, all judges associations strongly defend their results and independence, even when facing public and media pressure. But they also say that the current reforms will make them more vulnerable, albeit with different levels of concern.
The main judge association led by Judge Llarena, for example, does not believe the government will push through legislation to replace judges as investigators with government-designated prosecutors. It would be inconceivable because it “risks the credibility of the judicial system,” he says.
Mr. Bosch, however, is certain the government will try. Justice Minister Alberto Ruiz-Gallardón told him so, he says.
“At stake is our rule of law because it would lead to a lot of concentration of power,” Bosch says. “There already is a lot of power concentration, uniting powerful economic groups and the ruling party, and there is a big risk that they will go on concentrating it.”
Sevilla sees a window of opportunity. “There is growing consensus that the country needs another constitutional reform, and I think that even if the government passes these reforms using its overwhelming majority in parliament, nothing is irreversible.”