Article 9(3), 117(1) and Article 117(2) of the Spanish Constitution

Article 367(1) and Article 367(2) Organic Law 6/1985, of 1 July, on the judiciary

On 20 November 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 suspension of functions of the judge.

The suspended judge challenged this decision of the CGPJ before the Spanish Supreme Court. The Supreme Court decided to suspend the proceedings and submit 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 declared 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. 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 on national constitutional law.

In this context, the Spanish Constitutional Court found that the regulation of the “declaration of aptitude” clashed with 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 such a requirement, but the legislator had to clarify 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 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 had already served the disciplinary sanction did not know whether he/she could be reintegrated to the judicial career or, in any case, the next step or action to be taken. In the words of the Spanish Constitutional Court, the denial led the judge to a “legal limbo” which was incompatible with the principle of legal certainty.