The new General Council of the Judiciary (CGPJ) begins with a priority objective: to find a consensual formula that protects the institution from possible blockages and internal struggles. An objective that seems almost an obligation given the current balance of power of the body, with eleven progressive members (ten members plus the president) and ten conservatives. In addition, the most important decisions must be taken by a reinforced majority of 13 votes. The members of both sectors agree that the most immediate thing is to seek a balance in the distribution of key positions.
The first decisive test will take place next Wednesday, during the first ordinary plenary session after the election of the president, Isabel Perelló. The members obtained this designation through an agreement to the extreme and after more than a month of intense negotiations. Supreme Court Justice Dimitry Berberoff, considered a conservative, is expected to be unanimously elected vice-president of the High Court that day. Also planned is the creation of the legal commissions, which constitute the skeleton of the CGPJ and whose members have been debating for days. The two blocs agreed that one group would have the presidency and another the majority in each of the commissions that serve to organize the daily operations of the body.
The law that regulates the judiciary establishes that the vice-president of the Supreme Court must be elected in the first ordinary plenary session after the election of the presidency. Perelló proposed Berberoff for this position, a judge of the Contentious-Administrative Chamber of the Supreme Court, a former lawyer at the Court of Justice of the European Union (CJEU) and author of numerous publications at community level. Until last Tuesday, when he resigned after his proposal was made public, he was the “number two” of the Professional Association of the Judiciary (APM), to which the majority of conservative members belong and which, in recent times, has been very belligerent against the coalition government and measures such as the amnesty law.
In fact, his name was put on the table by the councilors elected on the proposal of the PP, who understood that after the election of a progressive profile to the presidency, the APM should also have some power given its unquestionable predominance in the judicial career (it has 1,355 members out of a total of 5,408 active judges and magistrates). They also defend their “great legal capacity”. The figure of the vice-presidency of the Supreme Court has been in force since 2013. The president of the CGPJ at the time, the conservative Carlos Lesmes, also chose a magistrate of different ideological affinity: the progressive Ángel Juanes.
Berberoff’s election should be unanimous, according to the sources consulted. In the progressive bloc, some deputies consider that it is a “minor position, which has practically no function”, given that he is only vice-president of the Supreme Court, and not of the CGPJ; and that it was right that it was the other group that put the name on the table. Other members chosen at the initiative of the PSOE, however, maintain that Berberoff’s profile has “a lot of weight”, given that he has very good connections and can exert “great influence” on the president, who will be the one who will have to decide which tasks will be assigned to him. They also maintain that they are voting for Berberoff as a “gesture” towards Perelló. “No one said they were not going to vote for him”, says another deputy.
Berberoff has been a Supreme Court justice since 2018, when he won the position with the support of only nine of the 21 members of the plenary session. At that time, the law was still in force that allowed appointments to the High Court only by a simple majority. Until his appointment, he was director of the Technical Cabinet of the Supreme Court, where Lesmes had placed him at the beginning of his term. His mission was to assist the president, that is, Lesmes himself, and the chambers.
His appointment was appealed by another of the judges who held the position. By three votes to two, the judges of the same Third Chamber ratified his appointment. In a dissenting opinion on this decision, two judges warned that discretionary appointments “delegitimize” the judicial system.
The distribution of commissions
In addition to the election of the vice-presidency of the Supreme Court, the objective is that during the plenary session next Wednesday, the composition of the so-called legal commissions of the CGPJ can also be decided: permanent, disciplinary, equality, economic affairs and Qualification. The new CGPJ is less presidentialist than the one led by the last ordinary president, Carlos Lesmes. Thanks to a reform approved alone by the PP in 2013 and in the preparation of which he himself collaborated, Lesmes had the power to propose to the members of the all-powerful Permanent, a sort of hard core where many relevant decisions are taken.
In the previous term, its seven members were the only ones with exclusive dedication. Now, the 20 members are free to dedicate themselves 100% to the CGPJ, as was the case until 2013. The current law also specifies that the “election and appointment” of the members of the commissions depend on the plenary session, which must approve them by three-fifths (13 votes). The composition of these commissions has focused the work of the members in recent days. The idea is that each councilor goes to the commission “where they can contribute the most,” explains a deputy, but without losing sight of the question of power or other issues such as gender quotas.
In this mandate, the Qualification Commission that the PP abolished in its 2013 reform has also been recovered. It is a relevant body within the organization because it conducts public interviews with candidates for discretionary positions in the judicial management. With these interviews, an initial screening is carried out and a shortlist is proposed to the plenary assembly, composed of the twenty members and the president, who makes the final decision.
“We are moving very slowly, but the idea is to unblock everything so that the plenary session on the 25th allows us to complete the organization chart,” says a progressive MP, who does not rule out new preparatory meetings this Monday and Tuesday. “It is a complex negotiation, which involves a distribution of power because no one has a majority that represents a roll,” assures another source from the same sector. The perception is similar within the conservative bloc. “The negotiation is permanent, but there is a good atmosphere, of consensus,” says a member chosen on the proposal of the PP.
According to the sources consulted, one of the commissions that generates the most debate is the Commission for Equality. The law provides that it will be composed of three members and that it will also have to respect the principle of “balanced” presence between women and men. The members of the conservative bloc have proposed that one of its members chair it: Carlos Orga.
But for some progressives, it is not entirely true that the commission responsible for preparing reports on the impact of gender and proposing measures to improve the parameters of equality in the judicial career is headed by a man. Other sources, however, assume that they will have another choice if they intend to obtain the majority, according to the rules that have been established for the distribution of positions. Everything indicates that the negotiations will remain open until the last minute.
