JUAN CARLOS I REY OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following organic law.

EXPLANATORY STATEMENT

This Law is intended to respond to the concern expressed by the entire group of the parliamentary groups, in the proposal not adopted by the Congress of Deputies passed on 21 September, in which it is urges the government, among other issues, to adopt the necessary measures to strengthen the independence of the judiciary.

To this end, and without prejudice to other subsequent major reforms that may be carried out, the regulation of three specific aspects that coincide in the need for urgent legal reform is addressed. On the one hand, the system of majorities is modified for the adoption of certain agreements by the General Council of the Judicial Branch and, on the other, the figure of a substitute Magistrate of the Supreme Court and the Head of the Service of the Supreme Court is strengthened. Inspection of the General Council of the Judiciary. The traditional guarantee of the independence of the judges and magistrates members of the judicial branch (article 117.1 EC) is projected in the performance of the judicial branch-according to the State Pact for the Reform of Justice, signed on 28 May 2001-as an "independent, unitary and integrated power, with a vertebrate structure, governed by an institutional coherence that allows it to more effectively develop its constitutional functions." This classic demand for independence is predictable in the face of all the other powers of the State, the other judicial bodies or the task of ensuring the same: the General Council of the Judiciary-and it constitutes, together with the improvement of the quality of justice, one of the pillars on which this reform is inspired. In line with the above, the present reform seeks to empower the Supreme Court, as a higher court in all orders, and the Presidencies of the High Courts as the judicial organs in which the organization culminates. of the Autonomous Community, ensuring the prestige of the institutions and the qualifications of its members. In this sense, it is intended to strengthen merit and capacity as the essential reasons for the appointment and access to the Supreme Court and the Presidencies of the Supreme Courts of Justice, avoiding the application of a system of majorities that It does not contribute to creating a quality justice, because it damages its image, it can muddy the independence and compromise the constitutional design on the position of the Supreme Court. Precisely this position of the Supreme Court would be dignified if the appointment of its judges were to apply the formula of the consensus, as a suitable means for the adoption of agreements by the plenary of the General Council of the Judiciary, which is a an organ integrated by virtue of the principle of plurality. To this end, the increase of the necessary majority of the plenary session in order to make the proposal for the appointment of Presidents of the Supreme Court and Magistrates of the Supreme Court, on the one hand, and the Presidents of the Supreme Courts of Justice, on the other, which is required to appoint the magistrates of the Constitutional Court, seeks to encourage the adoption of agreements by a large majority even higher than the legally required, thus stimulating a tendency towards unanimity. In this respect, the increase of the majority to three fifths-computed on the whole of the twenty-one members who make up the plenum on the margins of short-term or definitive absences or cesses-will avoid the temptation, now and in the future, to decide so much. Important appointments are made in accordance with the criterion of a concrete but institutionally insufficient stable majority, replacing this practice with dialogue and permanent consensus. On the other hand, the Magistrates of the Supreme Court will not lose this condition when they perform, if necessary, the Head of the Inspection Service of the General Council of the Judicial Branch. In addition, when the post is performed by a Magistrate he will have, while he holds the position of Head of the Inspection Service, the Supreme Court Magistrate's consideration. In this way the inspection tasks would be strengthened under the direction and authority of a High Court Magistrate, or a Magistrate who will temporarily hold the expressed consideration. Finally, the retired Supreme Court Magistrates, who so manifest, will continue to exercise jurisdictional duties as magistrates, thus taking advantage of their long experience in the exercise of their duties. jurisdiction.

Single item. Amendment of the Organic Law of the Judiciary.

The Organic Law 6/1985, of July 1, of the Judiciary is amended, in the following terms:

One. Article 127 shall be worded as follows:

" It will be from the plenary session of the General Council of the Judiciary: 1. The nomination proposal by a majority of three-fifths of its members: (a) The President of the Supreme Court and the General Council of the Judiciary and the Vice-President of the latter.

(b) The members of the Constitutional Court whose appointment corresponds to him. c) The Presidents of the Supreme Court and the Presidents of the Supreme Courts of the Autonomous Communities. (d) The Magistrate of the Second Criminal or Third Party of the Administrative-Administrative Court, of the Supreme Court, competent to know of the authorization of the activities of the National Intelligence Center that affect fundamental rights recognized in article 18.2 and 3 of the Constitution, as well as that of the Magistrate of those Chambers of the Supreme Court to replace him in case of vacancy, absence or impossibility. For the purposes of calculating the qualified majority required in this paragraph, all twenty-one members of the General Council of the Judiciary shall be taken as a base, as provided for in Article 111 of this Law. In order to make such proposals for appointment as provided for in this paragraph, the plenary session of the General Council of the Judiciary will, in any case, ensure that the principles of merit and capacity are met. 2. The proposal to appoint the other positions of discretionary designation. 3. To evacuate the hearing provided for in Article 124.4 of the Constitution on the appointment of the Attorney General of the State. 4. To resolve the resources of the public against the agreements of the Permanent Commission, the Disciplinary Commission and the Chambers of Government of the Superior Courts of Justice and the governing bodies of the Courts and Courts. 5. To resolve the rehabilitation files instructed by the Disciplinary Commission. 6. To evacuate the reports provided for in the Law and to exercise the regulatory authority attributed by the Law to the General Council of the Judiciary. 7. To agree, in the legally established cases, to the separation and retirement of the Judges and Magistrates in the cases not provided for in Article 131.3. 8. To elect and appoint the members of the committees and delegations. 9. Approve the annual report on the State of the Administration of Justice, which will be read by its President on the occasion of the opening of the judicial year. 10. Prepare the budget of the General Council of the Judiciary, which will be integrated in the General State, in an independent section. 11. Address the implementation of the Council's budget and monitor its compliance. 12. Any other functions that correspond to the General Council of the Judiciary and are not expressly attributed to other organs of the Judicial Branch. "

Two. A number 5 is added to Article 200, with the following content:

" 5. The Supreme Court Magistrates, once retired, will be appointed as the Chief Justice in the Supreme Court when they so request, provided they meet the legally established requirements and in accordance with the needs of reinforcement in the Room concerned. '

Three. Article 335 (3) shall have the following

:

" 3. The Head of the Inspection Service of the General Council of the Judiciary will be provided by a Supreme Court Magistrate with an seniority in the two-year category or by a Magistrate with ten years of services in the category. In the latter case, as long as he is in office, he shall have the consideration of the Supreme Court Magistrate. "

Four. Paragraphs 4 and 5 are added to Article 348 a, with the following wording:

" 4. State Attorney General.

5. Head of the Inspection Service of the General Council of the Judiciary. "

Five. A new point (e) is added to Article 352, with the following wording:

"(e) Head of the Inspection Service of the General Council of the Judiciary."

Single additional disposition. Amendment of Law 50/1981 of 30 December, regulating the Organic Statute of the Fiscal Ministry.

A new additional provision is added to Law 50/1981 of 30 December, which regulates the Organic Statute of the Fiscal Ministry, with the following wording:

" Additional provision third. Supreme Court emerits prosecutors.

The Prosecutors of the Supreme Court, once retired and on a proposal from the Attorney General of the State, heard by the Fiscal Council, will be appointed annually by the Fiscal Government of Sala emeritos in the Supreme Court, when so request, provided that they meet the requirements of the Organic Law 6/1985, of July 1, of the Judicial Branch, for the Magistrates in the Supreme Court and according to the needs of reinforcement in the Prosecutor's Office of the Supreme Court. "

Single end disposition. Entry into force.

1. This Organic Law shall enter into force on the day following that of its publication in the "Official Gazette of the State".

2. The provisions of Article 127 (1) of the Organic Law 6/1985 of 1 July 1985 on the Judiciary will also apply to proposals for the appointment of vacancies which were announced prior to the entry into force of the Treaty. Law, have not been agreed.

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this organic law.

Madrid, December 28, 2004.

JOHN CARLOS R.

The President of the Government, JOSÉ LUIS RODRÍGUEZ ZAPATERO