An updated look at judicial independence: functional and organic conditioning.

by La Clave Judicial

José María Macías Castaño, member of the Spanish General Council of Judicial Power

The text corresponds to the intervention I made on December 3, 2020 at the Universidad Abad Oliba CEU on the occasion of the Conference on «Challenges to the Constitutional State of Law» organized by that University, the Professional Association of the Judiciary, the Association of Prosecutors and the Association of State Attorneys.

Judicial independence, speaking of judicial independence, is one of those classics that recall what KELSEN said in his work «What is Justice?», when he recalled the dialogue between Jesus Christ and Pontius Pilate and the latter asked our Savior what the Truth was.

What is Truth, what is Justice?  KELSEN said that no other question had provoked so much debate and reflection, but neither had any other question provoked so many tears and so much blood.  I think the same could apply directly to the issue of judicial independence, because judicial independence is a necessary condition for Justice: without independent judges, there is no Justice.

And being such an important issue, so basic or structural, it is, however, an issue that in Spain remains constantly open, and not only does it remain open, but it becomes more and more complicated and it islogical: it is so important that ensuring the validity of this principle incorporates more and more demands.  So to speak, and however much it is a principle that can be traced back to Jesus Christ’s conversations with Pontius Pilate, the fact that it is a classical theme does not exclude that it can become sophisticated.  If the basis from which one starts is not firmly established, every sophistication that is incorporated into the system reveals its inconsistency and makes it tremble.

And it is becoming more sophisticated because the independence of Justice has ceased to be a matter for the more or less fortunate citizens of a more or less advanced State and has become a reciprocal requirement between States and, therefore, a common right of the citizens of all of them.  Today, as the European context shows us, having an independent Justice is not a possible option for a State that can assume to be more or less democratic, it is a common demand in all its dimensions.

It is therefore justified that we continue to ask ourselves what are the conditions that must be met or the requirements that must be fulfilled for this demand for an independent Justice to be satisfied, bearing in mind that the answer given may be different from that given fifty or even twenty years ago.  The answer may be, as I said, more sophisticated.

Without the intention of providing solutions now to what in decades of constitutional development has not been able to solve in Spain, let us place some concepts and a certain order in the conditions or requirements that can be considered necessary to be able to speak of an independent Justice.

As far as the concepts are concerned, and in order to be clear about what we are talking about, transferring the concept of INDEPENDENCE to the judicial power involves identifying the relationship that the judicial power must maintain with the rest of the powers of the State, and that relationship consists of SEPARATION: independence is an instrument at the service of the function that judges must fulfill: to determine the procedural truth in terms of facts and law.  To fulfill this function, it is necessary to ensure that judges can carry it out without external interference, that is, without interference from other powers of the State.

On the other hand, the concept of independence is related to that of IMPARTIALITY, which raises a different perspective on the guarantee function of judges: impartiality implies that judges must decide with separation (again) from the parties and from the influence they may exert.  This adds to the requirements of independence other techniques aimed at ensuring impartiality (e.g., abstention and recusal of the judge linked to the parties or the case).  Impartiality, on the other hand, is a principle that, in turn, is related to other principles or purposes (ensuring the correct application of the law; the correct establishment of the facts; respect for the guarantees of the process that make up the right to a fair or equitable trial).

Although they are two different perspectives, their link is immediate: INDEPENDENCE is a presupposition of IMPARTIALITY, because only an independent judge (protected against external interference) can behave impartially in the performance of his or her function (in a specific trial).

And from another perspective that does not take the judge and his functions as its reference, but rather the citizen and his or her rights, the independence of the judge is a CITIZEN’S RIGHT: citizens have the right to have their cases heard by an independent and impartial judge, something that, along with other components, integrates a right with a broader spectrum, referred to as the right to a fair trial (Art. 6 ECHR) or, in other terminology but with the same content, the right to effective judicial protection (Art. 24 EC and 47 CFREU).  

Not forgetting this other perspective on judicial independence is of fundamental importance.  When one political formation threatens another in a negotiation with a legislative reform that grossly damages the independence of the judiciary, it does not actually threaten that other political formation with harm: what it does is kidnap citizens (at least, their fundamental rights) and threaten to execute the hostages (please, understand the figure of rhetoric).

All of these perspectives are considered in our Constitution and are clearly discernible if one navigates from Article 24 to 117 EC and, as we will see later, some other precept, such as Article 122.

At this point, it is worth asking about the requirements or conditions of judicial independence, which are varied and which should be systematized in order to understand how they fit into and are important in the construction of this principle.

The formulas for systematization are varied and would lead to a distinction between individual and collective conditions; or internal and external; or, as proposed to me by the organizers of this intervention, between functional and organic conditioners, which is a formula adopted by some authors, such as Professor EDUARDO SÁNCHEZ ÁLVAREZ.

From this systematization approach, the FUNCTIONAL CONDITIONERS are considered from the guarantee function of the judge and attend to those elements that must concur in the judge (in each one of them considered individually) to assure that he can act in Law and only in Law, without external interferences.  In fact, and as these conditions must be present in each and every one of the judges, it can be said that they are part of the core aspect of their «statute», of their personal rule.

In what way are these conditioning factors expressed?  They are varied, and their joint consideration gives an idea of the level of protection that the law provides to the independence of the judge.

– A system of election and appointment in which other powers of the State cannot influence, nor what are more diffusely called «factual powers» (from economic power to the media).

– The guarantee of irremovability.

– The guarantee that professional promotion will take place in the terms defined by law and without external interferences.

– The guarantee of economic sufficiency as remuneration for the fulfillment of the function, which must be extended to an adequate social welfare system (in case of illness, retirement).

– A disciplinary regime that implies guarantees of non-interference by public authorities or any other type.

– A system of inspection and verification of quality in the exercise of the function that also prevents such interference.

– The guarantee of immunity.

– A guarantee of immunity from criminal prosecution for attacks in the exercise of the function.

– The monopoly and exclusivity in the exercise of the function and the regime of incompatibilities.

– The prohibition of membership in political parties and unions.

– And we could even add other more diffuse conditions (this is how GASCÓN Y SÁNCHEZ describes them), such as the continuous training of judges, an aspect usually considered from a beneficial or positive perspective, but that also poses risks of mediatization: who forms, on what form, in what terms (with what bias) are factors that can interfere, mediatize or influence the decision of the judge.  As I ask myself, I keep wondering about the importance that can be attributed to the jurisprudence databases and the «score»»on the importance of the sentences that are incorporated into the databases, which can lead the judge to consult and take into account some sentences in preference to others.

The ORGANIC side shifts its focus from the judge to the JUDICIAL POWER itself or as a whole, that is, to how it is organized institutionally to ensure effective compliance with functional conditionings.  At this point, the key lies again in the idea of SEPARATION, this time to ensure institutional separation from the Legislative and the Executive.  The technique used in our Constitution to ensure institutional separation, which is common in most countries of the European Union, is the creation of a governing body, the GENERAL COUNCIL OF JUDICIAL POWER (Article 122), which is entrusted with the management of the aspects related to the functional conditioning factors that we have mentioned above (although not all of them).  In this way, the General Council of the Judiciary becomes the guarantor of the independence of those who assume the function of guaranteeing guardianship to the citizens.

And it is perhaps (in fact, it is with complete certainty) at this point that our greatest weaknesses have been revealed, precisely because of the circumstance I indicated at the outset: because the possibility of forming a Council to the extent that a State considers acceptable or convenient has escaped the hands of the State.

This is because in the international concert of serious nations, relations are only conceived as possible between States governed by the rule of law, those whose relations with their citizens are governed by law, and this is only possible if they have an independent judiciary.  Without an independent judiciary, there is no rule of law.  To be independent, the judicial power must have the institutional guarantee of independence, and this is only accepted if its governing body is effectively separated from the other public powers (executive and legislative).

This explains why it is now a common standard of quality for a justice system that the governing body of the judiciary is composed mostly of judges and that these judges are appointed directly by the judges themselves and not by other powers of the State.

This is what is required by various documents produced by the Council of Europe, the European Union (Commission) and the Councils of Justice of the Member States of the European Union (European Network of Councils of Justice), and it is precisely this situation (Council of Europe, European Union) that reveals that determining to what extent judicial independence is respected to ensure the rule of law is something that can no longer be decided by each State individually.

For the common European standard that defines the requirements of the rule of law, and to borrow a felicitous expression from the ECtHR («in a democratic society, appearances matter»), the rule of law requires that judges be and appear independent, and that is only possible if the body that appoints them and ensures their independence also appears to be independent by virtue of its dissociation from other public authorities.

At this point, and in conclusion, I identify two factors of what I previously called sophistication that are incorporated into the requirements of independence: appearance (of independence) and mutual acceptance of the States with which the equalization of democratic quality is sought, and I sadly conclude that not only do we not comply with them, but we make no effort to do so. On the contrary, the proposals that are being made by those who, for the moment, have the capacity to impose them align us with the most stale of some European territories that resist being entirely democratic.

(Photo of a plenary session of the General Council of Judicial Power)