The General Council of the Judicial Power already has a technical report on what to do with the nomination processes for judicial positions initiated by the previous CGPJ and they did not succeed because an organic law promoted by the government in March 2021 withdrew this competence from them due to the extension of its mandate.
The new governing body of judges, created on July 25 and which finally began to function after the difficult election of the president, Isabel Perelló, and the formation of the commissions, must erase more than a hundred discretionary appointmentsincluding 31 at the Supreme Court.
The report, to which EL ESPAÑOL had access, was prepared by the director of the studies and reports department of the CGPJ, Javier Mieres, and concludes that “the procedures for discretionary appointment to positions already started and paralyzed upon entry into office force of organic law 4/2021 They are still alive and the Council has an obligation to resolve them“.
These are those in which the previous Council approved the bases of the calls, these have been published and the procedures have begun (appearances of the candidates, presentation of the shortlists to the plenary session) to proceed with the nomination, a process which was paralyzed in March. 2021.
In this situation, they find themselves five vacant positions: one place in the Social Chamber of the Supreme Court, another in the Civil Chamber of the TS, two in the Contentious-Administrative Chamber of the High Court and in the presidency of the Provincial Court of La Rioja.
Concerning seven more placesthe previous CGPJ approved the bases of the appeal on December 17, 2020, but it did not go beyond. There are two positions in the Supreme Court (one in the Military Chamber and the other in the Social Chamber), the presidency of the Social Chamber of the Superior Court of Justice of Extremadura; the presidencies of the Provincial Courts of Burgos, Lugo and Girona and the presidency of the Contentious-Administrative Chamber of the Superior Court of the Basque Country.
Finally, regarding a vacancy in the Civil and Criminal Chamber of the Superior Court of Justice of Asturias due to the turn of jurists of recognized prestige, the previous CGPJ addressed the General Council of the Principality of Asturias to propose a shortlist, but When Organic Law 4/2021 entered into force, the proposal from the Regional Parliament had not been received.
Candidate Rights
Concerning the first five places, the report specifies that “once the call is published, the candidates having submitted their application on time and meeting the access conditions have the right to continue the procedure since the competent body rules within the maximum time limit set”, i.e. six months.
According to him, failure to comply with this deadline does not entail either the declaration of positive silence or the expiration of the process because it does not have the character of a sanction or, in general, of intervention.
“Linking the effect of expiry to temporal excess in the resolution of a selection procedure would lead to consequences contrary both to the public interest in filling vacant posts on time and to the right of admitted candidates to have the procedure resolved” he said.
After the reform of March 2021, the lack of competence to carry out the procedures initiated “implied the impossibility of promoting them”, so that the effect on these procedures is equivalent to that of a suspension, he adds .
“The deadline to be resolved is “hibernated”, in the legal fiction that it does not expire, so that once the suspension is lifted, after the recovery of the full exercise of jurisdiction, with the renewal of the Council and the constitution of its internal bodies, the time limit for processing the procedures resume in the situation in which they found themselves at the time of their entry into hibernation”, he underlines.
Furthermore, the binding nature of the appeal and its grounds prevents any modification thereof. “It is only within the framework of the automatic review or declaration of harmfulness procedure that its modification or revocation may be possible,” specifies the report.
SO, It is not possible for the candidates who competed for these five posts to add their merits now. since “the bases of the appeal bind all participants, both the Administration and its qualifying bodies as well as the candidates, and constitute the “law of the competition” for all, and cannot be left without effect by any of the parties by virtue of hypothetical interpretative powers.
If they were allowed to incorporate the merits, the appeal would be amended without any regulatory cover, which “would imply a bankruptcy of the competitive situation which was closed at the time of the end of the application period”.
The merits that can be assessed should only be those alleged in the application submitted at the time, the report insists. “Opening an update period could certainly benefit some, but harm others, without the former being able to claim a right to this update, since the bases, which do not envisage such a possibility, commit them , while the latter can consider a new procedure without coverage in the bases would harm their expectations,” he explains.
On the other hand, the conditions of access to these positions will be those required by the organic law of the judicial power at the time of the appeal. Therefore, the new seniority conditions for access to the Supreme Court established in Organic Law 3/2024, in force since last August, are not applicable, since “they would give it an unfavorable retroactive effect.”
No new candidates
The opinion also excludes the possibility of incorporating new candidates for these five positions. “This would mean as much as the revocation of the current appeal without any legal cover,” he argues.
Compared to the paralyzed procedures, the holding of appearances by candidates and the preparation of proposals by the previous Council “do not guarantee that the current members of the body can have complete and precise knowledge of the capacity and merit of each candidate“.
In this sense, the preparatory actions for the Plenary decision developed by the previous Council “must be considered as simple procedural acts that can be repeated by the new one”.
It is therefore considered appropriate that new appearances of the candidates which were presented at the time for these five positions, interviews “the purpose of which will be limited to the alleged merits and which will be attended by members who wish to do so to ask questions or request clarifications”.
The Qualification Commission, in its new composition, will submit the corresponding proposals to the Plenary Session.
Processes not called
Concerning the seven positions for which the bases of the calls have been approved, the report recalls that the start of the selective procedure occurs with the publication of the call. “It is at this moment that the appeal and its foundations demonstrate legal effectiveness, binding the CGPJ and the participants in the procedure.”
“The published call for a selective process constitutes a favorable act whose revocation can only be articulated by an ex officio control or by the declaration of harmfulness,” he specifies.
For these seven vacant positions, “the appeal agreement not having been adopted and, for the most part, not having been the subject of publication, there is the possibility of modifying the bases by the Plenary, on the proposal of the Qualification Commission, and its subsequent new approval”.
In this case, with regard to vacancies within the Social and Military Chambers of the Supreme Court, the bases for convocation must be adapted to the situation. new requirements established in the reform of the LOPJ last Augustwhich requires at least twenty years of seniority in the judicial career, instead of the fifteen years required until now, and to have exercised effective functions in a collegial body of the corresponding jurisdictional order.
Regarding the position of magistrate of the Civil and Criminal Chamber of the Superior Court of Asturias, the report considers that it is necessary to return to the General Council of the Principality of Asturias for sending the shortlist.
