Independence (tenure, discipline, transfers, and removal of magistrates)

Tribunal Constitucional

Constitutional Court

135/2018

13 December 2018

ES:TC:2018:135

N/A

Independence – Discipline – Suspension of functions – Irremovable – Judicial tenure

The case concerns the debate about the constitutionality of a national legal clause which establishes the need of a “declaration of aptitude” issued by the General Council of the Judiciary (CGPJ) to allow the reintegration to the judicial career of a judge which was disciplinary suspended in his/her judicial functions.

Article 367.1 and Article 367.2 Organic Law 6/1985, of 1 July

On 20 November of 2014, the General Council of the Judiciary (CGPJ) sanctioned a judge for committing a serious offense to one year of suspension of functions. Once the sanction was served, the judge requested to the CGPJ his reintegration to the judicial career. Under Article 367.1 of the Organic Law 6/1985, the judge needed a “declaration of aptitude” issued by the CGPJ before his reintegration. The CGPJ declared that the judge was unfit to the reintegration to the service and denied the “declaration of aptitude”. Subsequently, the CGPJ declared a permanent and non-temporary suspension of functions of the judge.  

The suspended judge challenged this decision of the CGPJ before the Spanish Supreme Court. This Court decided to paralyze the proceedings and to send a question of unconstitutionality to the Spanish Constitutional Court for assessing the constitutionality of Article 367.1 of the Organic Law 6/1985. The Supreme Court alleged that the terms of the regulation of the “declaration of aptitude” were contrary to the principle of legal certainty (Article 9.3 Spanish Constitution) and the judicial tenure (Articles 117.1 and 117.2 of the Spanish Constitution). 

The Spanish Constitutional Court declared the “declaration of aptitude” unconstitutional and annulled this legislative provision in the terms that was regulated. This declaration of unconstitutionality was framed under national law, without considering any references to the Charter or the Convention. The grounds for the unconstitutionality were based exclusively under national constitutional law.

In this context, the Spanish Constitutional Court found the regulation of the “declaration of aptitude” against the principle of legal certainty (article 9.3 of the Spanish Constitution). The legislator used an ambiguous term, without any clarification or criteria and, therefore, it was not possible to know the meaning of the “aptitude” required for the reintegration to the judicial functions. The Spanish Constitutional Court argued that it was possible to establish a requisite such that, but it was necessary to frame by the legislator itself the meaning, the criteria or the boundaries of this “declaration of aptitude” in order to comply with the principle of legal certainty. In that regard, the decisionmaker, that is, the CGPJ which was in charge of deciding if the judge was “fit” or not for the reintegration, had too much discretion. The Spanish Constitutional Court required more legislative precision for complying with the principle of legal certainty.

Moreover, the legislator did not establish the consequences of a denial of this “declaration of aptitude”. In case of denial, the suspended judge who already served the disciplinary sanction did not know whether can be reintegrated to the judicial career or, in any case, the next step or action to be done. In words of the Spanish Constitutional Court, the denial led the judge to a “legal limbo” which was incompatible with the principle of legal certainty.

Article 367.1 Organic Law 6/1985 vas declared unconstitutional and annulled, as same as parts of Article 367.2 Organic Law 6/1985 which were related to the “declaration of aptitude” established in Article 367.1. The legislator has not changed the terms of the regulation of the “declaration of aptitude” and, therefore, currently this requisite is deactivated. The Spanish Constitutional Court declared the terms of regulation of the “declaration of aptitude” unconstitutional, but not the existence per se of this kind of requisite. It was possible to reintroduce the requisite, but with much more legislative precision about its meaning and criteria for its application. However, until now, the Spanish legislator has not provided a new regulation for this requisite and, therefore, nowadays it is completely deactivated.

http://hj.tribunalconstitucional.es/es-ES/Resolucion/Show/25818

Joan Solanes Mullor, Universitat Pompeu Fabra (UPF)