The replacement of the Strasbourg judge 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 front-page news, while the election to 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 judge, the conservative María Elósegui, sees her term end 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 voiced their intention to do so.

For now, the National Court has rejected the provisional suspension of the selection process, but it continues to study 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 for the selection process on March 11. The call, published in the BOE, creates a selection committee with the weight of governmental positions. It is composed of five members: the Secretary of State for Foreign Affairs, the Secretary of Justice, the Undersecretary of the Presidency, in addition to 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 contest rules should "more transparently" determine the selection requirements beyond an interview and advanced knowledge of French or English. In this regard, they also criticize that a part of the candidates – more than twenty applied – were "informally" informed that they had already been rejected. A fact that has now been "rectified" as a result of the controversy: "Now they have started conducting all interviews," knowledgeable sources point out, of an "exacting" nature.

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

The association Foro Judicial Independiente shares that it is an "improvement" compared to 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 an internal judge, the government would have this 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 Jueces para la Democracia nor the Asociación Profesional de la Magistratura, 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 aligns with the recommendations of the Council of Europe.

How are judges elected at the ECtHR?

The European Court of Human Rights goes beyond the European Union and includes up to 47 states under the Council of Europe. The mandate of the judges is nine years and, when it is to be renewed, each country proposes a shortlist of candidates which 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 judge selection committee. The Council of Europe has made recommendations on how states should choose this shortlist, since, after all, they are choosing the judges of a jurisdictional body. Among these recommendations is that the selection of the three candidates made by the state should be done by a committee of "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 in Hungary.

What is the importance of the judge in the ECtHR?

María Elósegui was elected 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 being elected is relevant because, contrary to what might be intuitively thought, 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 el ARA that this is a "deficiency" and attributes it to the 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 still pending in Strasbourg regarding the Procés: the appeal against the Supreme Court's ruling on the 1-O referendum. If it doesn't come out this year, it would be an issue that the newly elected judge could take on. Nevertheless, ECHR sources express caution, as the court never informs about the schedule of resolutions. The European Convention on Human Rights also states that the replaced judge could continue to be part of a case they have already heard. So far, all appeals related to the Procés, during the current mandate, have been dismissed.Beyond that, another source from a high court emphasizes the importance that 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 called for limiting the right to asylum in disagreement with the jurisprudence these courts were setting.