The General Council of the Judicial Power will apply, for the first time, the 60-40 rule: No gender will exceed 60% of positions or have less than 40%.
This is how it appears in the proposal from the Qualification Commission on the new bases filling discretionary judicial positions, which are those of presidents and judges of the Supreme Court; the presidents of the High Courts of Justice, the National Court and the Provincial Courts; the presidents of the Chambers of the TSJ and the AN and the magistrates of the civil and criminal Chambers of the TSJ proposed by the regional Parliaments.
The proposal of the Qualification Commission, to which EL ESPAÑOL has had access, will be debated next Wednesday by the plenary session of the CGPJ, which also plans to approve the appeal for the first four positions to be filled at the Supreme Court: the presidencies of the civil, criminal, contentious-administrative and social Chambers.
The High Court suffered particularly intensely the effects of the law approved in March 2021 which prevented the previous CGPJ from making discretionary appointments during the extension of its mandate.
The effects of this controversial law – which was ratified by the Constitutional Court by 7 votes to 4 in October 2023 – are based on the existence of 29 vacancies at the High Court as of September 27. The Supreme Court has a total of 79 positions, so it operates with 36.7% of its staff vacant.
Of the five presidencies of the Chamber, three of them (Civil, Litigation-Administrative and Social) are temporarily assisted by the highest ranking magistrates.
There are only two chambers whose presidents have the current mandate, the military one and the criminal one, but the second, Manuel Marchena, will finish it on December 5. It is for this reason that the CGPJ will summon the presidency of the Criminal Chamber as well as the three whose presidencies have been vacant for months.
The Supreme Court, now presided over by a woman, Isabel Perelló, has never had a female magistrate as President of the House.
The CGPJ Qualification Commission has established several changes in the bases selective processes for discretionary judicial positions compared to those applied by the previous Council.
“Gender circumstances”
The main thing is that “in the overall assessment of the merits” of the candidates “gender circumstances” will be taken into account.
Until now, the bases applied Organic Law 3/2007, for the effective equality of men and women. However, they added that “in accordance with constitutional jurisprudence and the Supreme Court which interpreted this requirement, these considerations [de igualdad efectiva de género] will take place in compliance with and assuming the requirements imposed by the principles of merit and abilitybut they can be decisive in the selection of a candidate in the case where the weighting of merits determines a substantial equality between two or more people applying for the same position.
The new Qualification Commission says it is necessary comply with the recent Organic Law 2/2024, on equal representation and balanced presence of women and men.
This is why it specifies that “any appointment or proposal for appointment must guarantee the principle of balanced presence of women and men, so that persons of each sex do not exceed sixty percent and are not less than forty percent”.
This criterion already appears in the proposal for new bases for the positions of presidents of the civil, criminal, contentious-administrative and social chambers of the Supreme Court.
For these positions, the merits to be considered are similar to those indicated in the bases approved for previous processes: governmental skills expressed in the action program, in the professional career and in the appearance before the CGPJ; jurisdictional excellence; experience accumulated at the Supreme Court and in the corresponding jurisdiction, particularly in government functions; and other professional, educational, student and scientific creation activities useful to government activity.
Short interview
Another change – which will be applied, if approved by the Plenary, to all future selection processes for discretionary positions – concerns the shortening of the interview that candidates undergo with members of the CGPJ.
The qualification commission’s proposal emphasizes that they are already 111 places of
vacant positions of discretionary jurisdiction and governor-jurisdiction.
The “urgent need” to begin the procedures for its coverage leads the Commission to propose, “at least for the moment”, the appeals system after approval of a basic model by the Plenary, “without prejudice to the possibility ” to study another alternative formula with greater continuity, such as the reform and adaptation of Regulation 1/2010 of February 25, which regulates the granting of discretionary appointment positions in judicial bodies.
The bases, however, need an “update”, motivated, among other reasons, by the recent reform of the organic law of the judiciary, in force since August, which has increased the years of active service in the judicial career from 15 to 20 to be able to aspire to become a judge of the Supreme Court. In addition, it is now required to have provided effective service within a collegial body in the jurisdiction corresponding to the position.
As for the interviewthe Qualification Commission considers that this appearance “does not constitute a merit in itself, but rather a means of accreditation of merits”.
“Taking into account that all merits are brought to the procedure in the form of a digital document, and without hiding the need to speed up treatment of the terms of allocation of these places, it is proposed that the appearance before the Qualification Commission is limited to a presentation of the merits”, without including, as until now, other aspects such as the presentation of the course and the action program or the explanation of judicial resolutions of particular importance that the candidate has issued, in accordance with the qualification proposal, there will also be no questions from the members.
This aims to reduce the time spent on the appearance of applicants, which from an hour to just 10 minutes.
Other reforms
Other reforms affect the means of assessing jurisdictional excellence. The criterion for evaluating the jurisdictional resolutions issued by the candidate through his consideration and relevance in resolution search engines most recognized in the legal community and the result and contribution of raising questions of prejudicial or unconstitutionality.
For the preparation of shortlists by the Qualification Commission, the need for prioritization has been removed pre-selected candidates.
The CGPJ will update the application submission system, which will be done electronically.
