The rule of gender parity in appointment to high judicial functions, introduced into law last August, will be be guaranteed for the entire duration of the “mandate” of the current General Council of the Judicial Power, which will extend until 2029.
This is how a legal opinionknown by EL ESPAÑOL, which was prepared by the CGPJ Studies and Reports Service. The document argues that the rule that neither gender exceeds 60% of judicial positions or is less than 40% It need not apply to the entire Supreme Court, the National Court or the superior courts. nor in each of its Chambers.
The report, which responds to a president’s commission of the Supreme Court and the CGPJ, Isabel Perelló, emphasizes above all that the selective procedure must be subject to the constitutional principles of merit and capacity. “The case law of the Court of Justice of the European Union, the Constitutional Court and the Supreme Court clearly excludes the possibility of attributing to the sex of candidates, in imperative terms, a superior relevance to merit and ability of each of them,” he said.
In practice, these conclusions – if accepted by the Plenary of the CGPJ – eliminate the possibilities that the progressive sector of the Council may impose, citing the need to respect gender parity, the appointment of female judges to head the presidencies of the Chamber of the Supreme Court.
The new governing body of judges must decide in the coming weeks the presidencies of the civil, criminal, contentious-administrative and social chambers, the most relevant positions to be filled. All, except the first, have female candidates: Ana Ferrer And Pilar Teso (who chose to preside over the judiciary) and Ureste-Design.
The latter is the one who has the most chance of presiding over the Social Chamber. The conservative sector prefers two experienced magistrates, Andres Martínez Arrieta And Paul Lucasat the head of the criminal and contentious-administrative chambers respectively. No candidate has been presented to preside over the Civil Chamber.
Scope of the standard
The legal report indicates that neither the project nor the draft organic law 2/2024 envisaged changes to the regime of discretionary appointments under the jurisdiction of the CGPJ.
The introduction of the parity rule is due to amendments made by the PSOE and Sumar groups during the parliamentary process.
But the ERC amendments were rejected according to which: “The bodies which must make nomination proposals will guarantee the principle of equal presence of women and men, so that they include at least forty percent of each of the sexes , both at the Supreme Court. [Audiencia Nacional y TSJ] as a whole as well as in each of its rooms.”
“From the parliamentary procedure”, states the opinion, “there is no element which allows us to identify the meaning and scope of the modifications made to the organic law of the judicial power in the ‘voluntas legislatoris’. [voluntad del legislador]. There is nothing on this subject in the preamble to the law, nor in the justification for the accepted amendments, nor in the parliamentary debates. However, we can say that by rejecting the ERC amendments, there was no desire to introduce the principle of balanced presence in the composition of the Supreme Courtthe National Court and the Superior Courts of Justice and their respective Chambers”
The report, which admits “the persistence of a significant gender gap“in judicial appointments, qualifies as a “necessary premise” the submission of the appointment procedure to the constitutional principles of merit and capacity.
This “is not only a constitutional imperative, but also has conventional relevance from the point of view of Article 6 of the European Convention on Human Rights”, he explains.
The European Court of Human Rights has underlined the importance of merit in the appointment of judges, finding that “it is inherent in the very concept of a ‘court’ that it is composed of judges selected on the basis of merit, that is, judges who meet the requirements of competence, technique and moral integrity to exercise judicial functions in a rule of law.
In the same sense, the doctrine of the CJEU, the TC and the TS is cited. And he deduces that the rule of parity”cannot be interpreted as an imperative and automatic criterion, taking precedence over merit and capacityin the decision of individual appointment procedures”.
Temporal scope
It also indicates that, in accordance with the literal wording of article 599.1.4 of the organic law of the judiciary, the objective scope of application of the parity rule extends to “all appointments or proposals for appointments and promotions which imply a certain margin of appreciation or”. appreciation of merits”, that is to say should apply to all discretionary designations.
“The imperative nature of the principle (“will be guaranteed”) does not authorize sine dieand in the absence of a precise time horizon in the law, it is reasonable to set the duration of the mandate of the General Council of the Judiciary as a period during which a balanced presence must be guaranteed in the appointments made for different types of positions,” he said.
According to the report, parity constitutes a “binding mandate” for the “global” politics appointments of the General Council of the Judiciary.
“The balanced presence of men and women in the percentages established by law constitutes an element that must always be present in the decision of the plenary on the appointment of those of whom it is aware, so that when deciding, on the basis of comparable merits candidates who reveal the required excellence and professionalism, among the various factors and legitimate elements that can be taken into consideration within the margin of freedom that corresponds to the Council, the criterion of balanced presence must always be taken into consideration, so that the the contribution of the nomination to achieving an equal result in all nominations for the respective job grades during the term of office of the Council,” states
