Spain, Supreme Court, nº822/2023, 19 June 2023
Member State
Spain
Topic
independence, accountability
Sector
Disciplinary proceedings; Judicial Ethics
Deciding Court Original Language
Tribunal Supremo
Deciding Court English translation
Supreme Court
Registration N
822/2023
Date Decision
19 June 2023
ECLI (if available)
ECLI:ES:TS:2023:2661
National Follow Up Of (when relevant)
NO
EU legal sources and CJEU jurisprudence
Article 47 of the Charter
ECtHR Jurisprudence
Article 6.1 ECHR
Subject Matter
Disciplinary measures - Unjustly delay in the initiation of the proceedings – legitimacy of the disciplinary organ
Legal issue(s)
A judge sanctioned for not adequately performing her duties challenges both the legality of her sanction and the legitimacy of the body imposing it.
Request for expedited/PPU procedures
NO
Interim Relief
No interim relief
National Law Sources
Article 417.1 Organic Law of the Judiciary
Facts of the case
Judge Virtudes, head of Court No. 5 in Móstoles, was on duty on October 9, 2020. The Rey Juan Carlos Hospital in Móstoles informed her of the involuntary admission of two people. Instead of initiating the relevant procedure, she forwarded it to the Court Registry for it to be assigned to the competent court. The problem was that by the time the competent court could resolve the matter, more than the legal 72 hours to do so would have passed. Article 763.1 of Law 1/2000 requires that involuntary hospital admission be judicially ratified within a period not exceeding 72 hours.
On June 28, 2021, the Disciplinary Committee of the General Council of the Judiciary (CGPJ) sanctioned Judge Virtudes with a 5-day suspension for being the author of a very serious offense according to Article 417.9 of the Organic Law of the Judiciary: "Unjustified and repeated neglect or delay in the initiation, processing, or resolution of proceedings and cases or in the exercise of any judicial powers."
Judge Virtudes appealed the decision to the plenary session of the CGPJ, but the appeal was dismissed (November 25, 2021). Following the rejection of the appeal, a contentious-administrative appeal was filed with the Supreme Court.
On June 28, 2021, the Disciplinary Committee of the General Council of the Judiciary (CGPJ) sanctioned Judge Virtudes with a 5-day suspension for being the author of a very serious offense according to Article 417.9 of the Organic Law of the Judiciary: "Unjustified and repeated neglect or delay in the initiation, processing, or resolution of proceedings and cases or in the exercise of any judicial powers."
Judge Virtudes appealed the decision to the plenary session of the CGPJ, but the appeal was dismissed (November 25, 2021). Following the rejection of the appeal, a contentious-administrative appeal was filed with the Supreme Court.
Reasoning (role of the Charter or other EU, ECHR related legal basis)
The Supreme Court confirms the sanction imposed by the CGPJ. The Supreme Court considers that exists a serious disciplinary offense and rejected the appeal for two reasons:
- Firstly, it confirms that at the time the Hospital informed the magistrate that two patients had been involuntarily admitted, it was foreseeable that if the duty court did not immediately ratify the admission, it would take more than 72 hours for the case to be seen by another court.
- Secondly, the Supreme Court states that although, ordinarily, the Móstoles Instance Courts No. 7 and 8 are the competent ones to resolve issues related to involuntary hospital admissions, this case should have been resolved by the duty court. In this case, Móstoles Court No. 5.
Additionally, it is worth noting that the complainant also challenges the validity of the sanction because she believes it was issued by a CGPJ without legitimacy. The magistrate argues that the judicial members of the council are not elected by their peers as required by the doctrine of the ECHR, and therefore, it violates Article 47 of the Charter and Article 6 of the ECHR.
In this regard, the Court replies that the CGPJ has full legitimacy to exercise the disciplinary function, and its mandate derives directly from the Constitution. Moreover, the Court emphasizes that the model for the election of members has been validated by the Constitutional Court (STC 191/2016, of November 15), and the appellant also fails to explain how the lack of independence and impartiality has affected her case.
- Firstly, it confirms that at the time the Hospital informed the magistrate that two patients had been involuntarily admitted, it was foreseeable that if the duty court did not immediately ratify the admission, it would take more than 72 hours for the case to be seen by another court.
- Secondly, the Supreme Court states that although, ordinarily, the Móstoles Instance Courts No. 7 and 8 are the competent ones to resolve issues related to involuntary hospital admissions, this case should have been resolved by the duty court. In this case, Móstoles Court No. 5.
Additionally, it is worth noting that the complainant also challenges the validity of the sanction because she believes it was issued by a CGPJ without legitimacy. The magistrate argues that the judicial members of the council are not elected by their peers as required by the doctrine of the ECHR, and therefore, it violates Article 47 of the Charter and Article 6 of the ECHR.
In this regard, the Court replies that the CGPJ has full legitimacy to exercise the disciplinary function, and its mandate derives directly from the Constitution. Moreover, the Court emphasizes that the model for the election of members has been validated by the Constitutional Court (STC 191/2016, of November 15), and the appellant also fails to explain how the lack of independence and impartiality has affected her case.
Relation of the case to the EU Charter
N/A
Relation between the EU Charter and ECHR
The appellant cites both the Charter of Fundamental Rights of the European Union and the ECHR because she believes that the method of electing the judicial members of the CGPJ is contrary to the model that Europe supports. It is important to highlight here that in recent years, both the CJEU and the ECHR have consolidated a case law to harmonize the European judiciary and defend the Rule of Law in the member states.
Use of Judicial Interaction technique(s)
consistent interpretation
Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)
To defend the model for the election of judicial members of the General Council of the Judiciary, the Supreme Court refers to the case law of the Spanish Constitutional Court (STC 191/2015, of November 15, 2015).
Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)
The Supreme Court does not cite the jurisprudence of the ECHR or the CJEU, although it could have done so to clarify to the appellant that European courts do not impose a specific model for the appointment of judicial members.
Strategic use of judicial interaction technique (purpose aimed by the national court)
N/A
Impact on Legislation / Policy
N/A
Notes on the national implementation of the preliminary ruling by the referring court
N/A
Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?
N/A
Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?
N/A
Did the national court take into account national case law on fundamental rights?
N/A
If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information
N/A
Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?
N/A
Impact on national case law from the same Member State or other Member States
N/A
Connected national caselaw / templates
N/A
Other
N/A
(Link to) full text
Author
David Mier Galera, University of Pompeu Fabra
History of the case: (please note the chronological order of the summarised/referred national judgments.)
N/A
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