The replacement of the judge from Strasbourg opens a new conflict in the Spanish judiciary

MadridThe election of magistrates to occupy relevant positions in the judiciary is always associated with political battles or, at least, with the tug-of-war between conservatives and progressives. The composition of the General Council of the Judiciary, the Constitutional Court, and the Supreme Court usually makes headlines in the press, while the selection for international bodies often takes a back seat. This is not the case now: there is an open battle over the selection process for the Spanish judge at the European Court of Human Rights. The current conservative judge, María Elósegui, her term ends in March 2027, and the process initiated by the Spanish government has generated controversy among candidates: it has been challenged by a member of the CGPJ proposed by Sumar, Carlos Hugo Preciado, and, according to legal sources consulted by this newspaper, he has not been the only one, as other aspirants have also done so or have expressed their intention to do so.

For now, the National Court has rejected a precautionary halt to the selection process, but it is still studying the appeal. Preciado – who has declined to make statements to this newspaper – as well as the other candidates, believe that the system established by the Ministry of the Presidency, Justice and Relations with the Courts does not sufficiently guarantee neutrality.

What is the complaint about the Spanish procedure?

The Ministry of the Presidency, Justice and Relations with the Courts called the selection process on March 11. The call for applications, published in the BOE, creates a selection committee with governmental positions. It is made up of five members: the Secretary of State for Foreign Affairs, the Secretary of Justice, the Undersecretary of the Presidency, as well as a person appointed by the General Council of the Judiciary and another of "recognized competence." A committee that critics consider to be too controlled by the executive. "It has an unbalanced composition. Three of the five positions are linked to the government," legal sources assure, emphasizing that they have a majority to choose the shortlist.

They also complain that the competition rules should determine more "transparently" what the selection requirements are beyond an interview and advanced knowledge of French or English. In this regard, they also criticize that some candidates – more than twenty applied – were informed "informally" that they had already been ruled out. A fact that has now been "rectified" due to the controversy: "Now they have started to conduct all interviews," point out knowledgeable sources, with "demanding" content.

In any case, not all of the judiciary is critical of the process initiated by the Spanish government. Other progressive legal sources recall that "it is now more transparent" than in previous processes. "On the previous occasion, Mariano Rajoy's government proposed a shortlist without any transparency," they recall. Now at least, they add, there is a procedure. The Spanish government approved the first formal regulation in 2020 to elect candidates for Strasbourg, as well as judges for the Court of Justice of the European Union (CJEU).

The Foro Judicial Independiente association agrees that it is an "improvement" over previous processes, but insufficient: "We are not satisfied," assures the magistrate and president of the association, Roberto García Ceniceros. "It would be unthinkable that, in the election of a domestic judge, the government would have such disproportionate weight," he adds. He also says that the issue is not who appoints the judge but that the necessary requirements must also be clear so that it is not "arbitrary." Officially, neither Judges for Democracy nor the Professional Association of the Magistracy, which is the majority in the judiciary, have wanted to comment. The Ministry of Justice, for its part, does defend the process and believes it fits with the Council of Europe's recommendations.

How are judges elected to the ECHR?

The European Court of Human Rights goes beyond the European Union and includes up to 47 states protected by the Council of Europe. The judges' mandate is nine years and, when it needs to be renewed, each country proposes a shortlist of candidates that is sent to the Parliamentary Assembly, which is the one that chooses by majority who is the most suitable after the review of a panel of experts and the assistance of the judges' selection committee. The Council of Europe has made recommendations on how states should choose this shortlist, as, after all, they are electing the judges of a jurisdictional body. Among these recommendations are that the selection of the three candidates by the state should be made by a committee with a "balanced" composition, that there should be sufficient publicity for the call for applications, or that all candidates should be interviewed. For not respecting these principles, the Parliamentary Assembly has rejected shortlists from different states, the most recent being from Hungary.

What is the importance of the judge at the ECtHR?

María Elósegui was chosen from a shortlist of three, which also included former Constitutional Court President Francisco Pérez de los Cobos and José Martín y Pérez de Nanclares. The judge who is chosen is relevant because, contrary to what one might intuitively think, they are part of the group of judges who deliberate on matters related to their country of origin. Former ECHR judge Josep Casadevall, appointed at the time by Andorra, admits to ARA that this is a "deficiency" and attributes it to states' desire for control when the human rights protection system was created in the 1950s. Nevertheless, he assures that, in practice, it does not mean that this judge is a transmission belt: very often, he says, they end up voting with the majority. Their function is to explain the legal context and the law of their state in question so that the chamber can make a decision.

The new judge could be key in one of the issues that still remain pending in Strasbourg regarding the Process: the appeal against the Supreme Court's ruling on the 1-O referendum. If it is not resolved this year, it would be an issue that the newly elected judge could take on. However, ECHR sources advise caution, as the court never informs about the schedule of its rulings. The European Convention on Human Rights also states that the substituted judge could continue to be part of a case they have already heard. So far, all appeals related to the Process, during the current mandate, have been dismissed.Beyond this, another source from a high court notes the importance international bodies are gaining and the certain "competition" to shape European law between Strasbourg and the CJEU. This is because they are resolving key issues such as the rights of immigrants now that the European Commission has shifted towards a more restrictive policy. They recall that, recently, up to fifteen European countries led by Denmark demanded to limit the right of asylum in disagreement with the jurisprudence these courts were establishing.