Judges: Constitutional safeguards and Admission

Admission
Judges and magistrates
Not Members of Judicial
Career:
Judges of Peace and their
Judges of the Supreme Court (magistrados del
substitutes.
Tribunal Supremo);
Substitutes of other
Judges of tribunals (collegial courts)
judges (fill vacancy, retired
(magistrados);
judges) same
Judges (jueces).
requirements than the three
levels
Judges individual courts decision taken by one judge
Members of Judicial Career:

Magistrate higher level than judges

Admission to judges
GENERAL REQUIREMENTS (Art. 302-303 OLJP)
Spanish nationality;
Adult;
Bachelor in law;
No incapacity:
-

Physically or mentally disable for the judicial functions physically depends

on the incapacity
convicted for deliberate crime (without rehabilitation),
Processed or accused of the deliberate crime (non-acquitted, non-dismissed),
Is not able to exercise all civil rights.

SINGLE PROCEDURE OF TWO STAGES (Art. 306-309)

Admission of the category of judge (ingreso en la categora)
-

Civil service examination (the same for the prosecutors, announced at least
once in 2 years)

Appointment (nombramiento) by the order of the GCJP

-

Theoretical (not less than 9 months) practical (not less than 6 months) course
in the Judicial School.

Admission to magistrates

For every 4 vacancies (final appointment by the Royal Decree on the proposal of GCJP
and draft of Royal Decree presented by the Minister of Justice)

For judges (at least 3 years of real experience) with the highest ranking of the
ranking list approved by the GCJP.

For a judge (2 years of real experience) through the selection test (civil and penal
branches) or
For a judge, magistrate or prosecutor (2 years of real experience) specialized test
(administrative, labor and commercial branches).
*** In these cases GCJP issues scale of merits that will be also evaluated (Art. 313.2)
for the appointment.

For the jurist with more than 10 years of experience in the relevant area through
the competition: The winner has to pass training in the Judicial School.
1/3 of these vacancies are foreseen for Court Clerks.
In this case they will not be able to move to another branch without special evaluation.
*** If the competition is without results, the vacancy is occupied through the
procedure of selection or specialized test among judges.
Promotion

General rule: competition.

Exceptions (nomination by the GCJP)

Presidents of Provintial Courts,

Presidents of High Courts of Justice,

President of High National Court and presidents of its chambers,

Presidents of the chambers and judges of the Supreme Court.

Admission to the Supreme Court

5
Vacancies of every chamber (final appointment by the Royal Decree on the proposal
of GCJP and draft of Royal Decree presented by the Minister of Justice)
4
For the professional magistrates that are not less than 10 years magistrates and not
less than 15 years in judicial career (decision of the GCJP)
-

2 of them just when they correspond to the requirements,

2 by the test of the relevant branch of law. In this case only 5 years of being
magistrate and 15 years of judicial career is required.

1
For famous jurist with the experience of 15 years.
*** subjective decision
Judges of peace outside the judicial career

The same requirements as for judges, except bachelor degree in law.

No incompatibilities except professional or commercial activities.

Elected by the Plenary of the City Council (absolute majority). GCJP has
nothing to do here

Appointed by the Governing Chamber of the HCJ for 4 years.

Incapacitites incompatibilities, prohibitions

Incapacities (Art. 303)
Personal obstacles to perform judicial functions:
-

Physically or mentally disable for the judicial functions, limited civil rights
Convicted for deliberate crime (without rehabilitation),
Processed or accused of the deliberate crime (non-acquitted, non-dismissed).

Incompatibilities (Art. 389 394) once you are inside the judicial career
-

Circumstances that do not allow to perform at the same time judicial and
other functions (see the following slide).
SC 127(1)
Exclusivity assure neutrality only judge and execute whats been judged

Prohibitions (Art. 395 397)

To belong to the political party or trade union (SC 127(1)).

Preside social meetings as judicial authority he cant use his status to solve
stuff outside the courts he can preside a reunion but not showing he is a judge
for example: urbanizacin

Reveal information about persons obtained while performing justice the

sentence is the only part that is always public

Incompabilities
Functions (Art. 389):
Performing other functions than judicial ones.
Exception: teaching, legal research, literary, artistic, scientific or technologic
creativity, if it is in conformity with the provisions of incompatibility of public
administration.
Judge / magistrate has to make decision in 8 days, what is he / she choosing.
Relations (Art 391-393)
Matrimonial or relevant relations, blood relationship or affinity until the second
grade with the:
-

Judges in the same Chamber of Justice, Provincial Court or governing chamber

(except cases of different sections);
Judges and prosecutors in the same court (except when Provincial Court has
more than 3 sections) or in the same territory;
Judges that deals with the case in investigation, the first instance and appeals.

Lawyers, legal representatives and judges of those chambers where lawyers and
legal representatives usually work (not applicable in districts with more than 10 courts
of the First Instance and Examining or chambers with 3 or more sections.
*** In these cases forced relocation can be done.
Judges in the courts of territory where they, they spouse or relatives until the
second grade has economic interests (except territories with more than 100 000
inhabitants).
Judges in the courts where they were acting previously as lawyers or legal
representatives.

Particular situation of career

1. Active service
Occupation of the post corresponding to the judicial career,
Is admitted to judges but waits for the post,
Temporally posting to other justice service (up to 1 year).
2. Special service
International courts, Constitutional Courts, Ombudsman, GCJP (Permanent
Commission), General Prosecutor, members of the Government or Executive Council of
the Autonomous Communities; part of constitutional organs, EU organs, temporally
service approved by the GCJP for more that 6 months ();
In this case they save their salary and post, the term is counted into judicial
career.
3. Voluntary leave
For temporally work in public administration that is not covered by previous situation
(not applied to those who access level of magistrate without being previously a
judge and has not served at least 5 years).
Maternity leave (up to 3 years), leave for particular reasons (up to 2 years).
4. Suspension
Temporally or definitive in cases of criminal or disciplinary procedures.
5. Being a victim of the violence against women
Up to 3 years you can ask it permission to out of the service.
Constitutional principles
Judicial Power
-

Exclusivity (117 (3, 4))

Unity (117(5))
Independence (117(1))
Separate Government (122)

Judges (117(1))

Stability
Responsability he have to apply the law, but at the same time is independent.
who controls him? a balance of independance
Independence
Submission to the law

Judge Independence

From parties and

object of litigation

Independen
ce

From other judges and

courts (internal
independence)
From organs and
institutions (external
independence)
From the influence of
society and
economy(external
independence)

Imparciali
ty
From the executive
power

From the other

institutions

*** Economy they are affected by the crisis less vacancies but one you are in
you cannot be fired

Independence = liberty of the process and liberty

to judge with the unique reference to the
Constitution and to the law.
Double perspective:
-

Independency have to be respected

Independency have to be guaranteed

Protected and secured by the Prosecutor Office (Art. 124.1 of

SC, Art. 14.2 and 541.1 of OLJP);

Issue of the competence of the General Council of Judicial

Power (limited powers: to receive the complaint from judges and

forward to the Administrative authority from which the violation of

independence derives).
Judges: impartiality

Impartiality lack of personal interest in resolution of the case.

The judge is impartial when there is no backgrounds foreseen in Art. 219 of

OLJP.

Nevertheless, existence of a background does not mean factual partiality of

the judge, it is hypothetic partiality.

Art. 219 of OLJP establishes exhaustive list of backgrouds for cases of

abstention and rejection that can be divided into 3 groups:
-

Relations or links that affects the impartiality;

Friendship or enmity;
Interests, incompatibility or supremacy.

Backgrounds for partiality

Relations or links that affects impartiality
-

Matrimonial or relevant relations, blood relationship or affinity

until the fourth grade with parties or representative of the

Prosecutor Office (part 1);

until the second grade:

with lawyer or legal representative of any of the parties (part 2);

with the judge or magistrate who has made the resolution or act
that has to be taken into account by mean of appeal or in any later
phase of the process (part 15).

Has been legal representative (defensor judicial al cuidado del menor como
su tutor por ejemplo) of one party or has been a member of parties defense
organ, or have been under the protection of any of parties (part 3);

In administrative procedure to be in any relation foreseen in this article

(paragraphs 1 to 9, 12, 13 and 15) with the authority or civil servant who has
made the decision or has reported on it or has done the action subject to
litigation (part 14).

Friendship or enmity:

Is or has been under the charges or accusation of any of the parties as

responsible for a crime or offense, always when charges or accusation gave a
raise for beginning of the criminal procedure and it does not finished yet by the
final judgment or ruling of dismissal (par 4);

Has had disciplinary sanction on the basis of the report or initiative of any
of the parties (part 5);

Is or has been reporting the crime or authority accusing any of the parties
(part 7);

Has pending lawsuit with any of the parties (part 8);

Is in intimate friendship or obvious enmity with one of the parties (part 9).

Interests, incompability or supremacy

Has been lawyer (defensor) or representative of any of the parties, issued

report about the case as lawyer or has intervened as a prosecutor, expert or
witness (part 6);

Has direct or indirect interest in the case (part 10);

Has been participating in the examining (investigation) of the criminal case

or was resolving the case in the previous instance (part 11);

One of the parties is or has been subordinated to the judge that must solve
the dispute (part 12);

Has hold a public office, job or profession, in the performance of which:

-

had participated, directly or indirectly, in the object of the litigation, or in

other related to it (part 13);

could have known the object of the dispute and formed criteria violating
impartiality (part 16).

ABSTENTION (Art 217, 221)

No appeal system

*** if there is rejection of the abstention the parts can have the right of objection
Submission of objection (art 218)
-

Civil, labor, administrative cases:

Parties;

General Prosecutor Office (those cases in which it participates).

Criminal cases:

General Prosecutor Office;

Accusatory party;

Civil claimant;

Accused;

Person against whom charges are brought;

Third responsible party.

Objection is only admissible if a competence subject present it:

At the beginning of the process, but in any case no later than in 10

days after the notification of the first resolution from which the
identity of judge can be known,

At the moment of discovery of possible background of partiality.

Objection (Art 223-228)

()

Internal independence (Art. 12 of OAJP)

In implementing of judicial power judges are independent from other

courts and governing bodies of JP.

Judges and tribunals cant correct application or interpretation of

the legislation by inferiors, but through the established appeals.

Judges and courts, governing organs and GCJP cant dictate

instructions to the inferiors on application and interpretation of legislation.

BUT:

It does not prevent from management instructions.

Chamber of the Supreme Court can adopt agreements on

unification criteria on interpretation and application of legislation (non-binding
guidelines).

It does not apply to Judgments of Supreme Tribunal, as they

do not establish general rules, but case law by solving individual case.

External independence

Influence of the State powers is minimized by the establishment of selfgoverning organs: GCJP, governing chambers.

Protection from social pressure is achieved by establishment of incapacities

and incompatibility of the judicial post with any other.

State warranties of economic independence.

STABILITY (ART 379)

-

Judges can be dismissed:

When he/she looses Spanish nationality;

As disciplinary sanction for severe misdeed;

In case of imprisonment for deliberate crime;

In case of incapacity;

On his own request;

In case of retirement.

STABILITY (Art. 361, 365, 385-387)

-

Judges can be:

Suspended when they are defendants in criminal or disciplinary process.

 Moved (relocated):
-

On their own request;

As disciplinary sanction for severe offence.

Retired because of permanent incapacity or age (70 years).

Exceptions from stability: Temporally appointed judges: judges of peace (4 years),
substituting judges (1 year), judges of the Constitutional Court.
RESPONSIBILITY (ART 16,405-427)
Is applied only to misdeeds that derive from the performing of the judicial power.
Civil Criminal - Disciplinary
In other cases responsibility is as of other persons, with the exception of detention
that is possible only by the decision of the competent judge or in case of flagrant
crime (caught in the act).
CIVIL AND CRIMMINAL
-

Criminal responsibility (Art. 405-408):

Can be started by the court order, charges of the prosecutor or party that
has suffered the damage.

Civil responsibility (Art. 411-413):

Ordinary procedure;

Can be started only after the final judgment of the case that provokes the
lawsuit and with previous complaint during the process.

There has to be deliberate (dolo) or guilt (culpa).

DISCIPLINARY- MISDEEDS
-

Very severe (Art. 417)

Prescription of 2 years
Misdeeds (deliberate omission of fidelity, belonging to political party,
repeated provocation of conflicts with other authorities, intervention by
pressure or other relevant means in jurisdiction and work of other judge, final
decision on civil responsibility, existence of incompatibilities, not justified
absences for 7 or more days, etc.)
Severe (Art. 418)

Prescription of 1 year

Misdeeds: show interest (by recommendations, etc.) in work of other

judges, express agreement or disagreement with the actions of other
institutions, not justified delay of case, inapropriate wording of resolutions,
not justified absence of more than 3 days, etc.

Not severe (Art. 419)

Prescription as for misdemeanors (6 months)

Misdeeds: misbehave with colleages, citizens or institutions, not

justified absence of 1-4 days, etc.

DISCIPLINARY
-

Sanctions:

expulsion,

forced relocation,

suspension until 3 years,

fine,

warning.

Can take place during the criminal process, but the disciplinary decision cant be taken
until the decision in criminal process.
COMPETENT AUTHORITIES
-

Plenary of GCJP:

For very severe violations with the sanction of expulsion.

-

Disciplinary Commission of the GCJP:

For severe and very severe violations.

-

Governing chamber of the court to which the judge belongs.

In cases of magistrates of the Supreme, Tribunal, High National Court and High
Courts of Justice the President of the relevant court:
For not severe violations.
SUBMISSION TO THE LAW

Law is understood as laws adopted by the Parliament and laws adopted by the
Legislative Assemblies of the Autonomous Communities.

It is also a warranty that independence is not absolute and the limits are
laws.

Applying of the same legislation ensure equality and certainty.