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Sometimes what the constitutional text says ends up being distorted—even completely twisted—not through explicit reform but through twisted interpretation or manipulation of its meaning.
This is the concept of “constitutional mutation” that has become familiar even to non-lawyers, especially since social rights and civil liberties have undergone significant cuts since 2012. There have been some serious setbacks since then, such as the gag law, which has a wealth of authoritarian and repressive tics, but it remains, like a dinosaur.
Gentle reader, please do not ignore, because I will focus on the title statement! Speaking of constitutional change, one very notable variant is the reduction, even elimination, of judicial responsibility, which is barely mentioned – not even at the legal level.
When I mention constitutional mutations, I want to emphasize the provisions of the 1978 Constitution for this and how it disappeared through the birlibirloque art of the historical figures of Rinconete and the books of José Bergamín. In fact, the first legal article of the Constitution on the judiciary, 117, states that “Justice shall be exercised by judges and magistrates (…) who are members of the judicial power, independent, unshakable, responsible and fully subject to the laws and the law”.
What happened to cause this principle or requirement to fade away?
First of all, it must be noted that the types of liability assumed for these professionals could be disciplinary, criminal and civil. The first does not exist. The corporate protection desire of the Judicial Council is huge and does not recognize the poor functioning of the courts or tribunals. All negligence must be covered. The demands for liability are few, almost non-existent and completely opaque. We are only talking about complying with deadlines for processing and resolving too many accumulated cases. In addition, speaking out on matters beyond the scope of one’s duties is also subject to disciplinary action, which is prohibited. Even so, there are some who make politically and personally disqualifying statements about political leaders in an unacceptable way – some repeatedly – always from a very right-wing perspective, and nothing happens to them.
The Judiciary Committee’s corporate protection desire is huge
Regarding criminal responsibility, there is also little in practice. Mention the case of Gómez de Liaño (who prosecuted the all-powerful Prisa President Jesús Polanco, for which he was convicted, although the Human Rights Court later said that he had been unfairly tried) or Baltasar Garzón, who suddenly had the idea of launching an investigation into corruption in the Popular Party (an investigation that was later confirmed) and holding coup leader Franco accountable. In any case, the enemy judges of that judge were many, both on the left and on the right, and it was a Vendetta The most crude and powerful was the case of the criminal Santiago Alba, who, in the Canary Islands, with the help of José Manuel Soria, a senior leader of the Popular Party, conspired in a very crude way against another magistrate, Victoria Rosell, because the latter emerged in the general elections with the candidacy of a party that was not only progressive but also allegedly transformative.
But those brave readers who have come here will now be able to understand the magic, that although the Constitution (I repeat Article 117) says that “Judges and magistrates … are responsible”, the legal reality is that this is not the case.
Indeed, it must be noted that as a result of this announcement, these public service practitioners (who must be reminded of the powers that be and capital letters alone) are arranging and taking out private liability insurance at their own expense just in case this is a place. The key is the liability requirement, which is enshrined in the Constitution and also in the Judicial Organization Act of 1985.
This situation continued until 2010, when the CGPJ arranged and paid for a group insurance policy (€223,551 per year) to cover judges and magistrates, although some of them retained private insurance.
The PP abolished the principle of responsibility of judges and magistrates proclaimed in the Constitution, a principle that persisted until recently with Mariano Rajoy as head of government and Carlos Lesmes as president of the Judicial Council. The Accounting Court criticized this system of liability. The BJP has cleverly used this to suppress the accountability of judges and magistrates.
In one of the legislative reforms To all (Absolutely), through the 2015 law affecting more than a hundred articles of the Organic Law of the Judiciary, one of the measures was the abolition of the legal provisions that declared the direct liability of judges and magistrates. From then on, if someone causes damage while performing their duties, the responsibility will be transferred to the state, emphasizing that “in no case can the injured party directly oppose them”.
The legal reforms pushed by the BJP have radically changed the provisions of Article 117 of the Constitution
So the BJP pushed for a legal reform that completely abolished the constitutional mandate of the “judges” mentioned in Article 117. And the judges who are accountable.” The reason given was that “there are very few cases that require this.” Of course, the cases pushing for accountability were few and far between, and none were successful!
I have an experience that I would like to share with you. In 2001, a friend was so indignant and angry about the procedural behavior of the judge, who he felt was so rude that they were just trying to persecute him, that he asked me to find all the rulings that could exist on the judge’s liability, since he had clearly decided to sue her.
I searched and collated the sentences, and I want to emphasize that there are not even a dozen of them in which the title refers to the plaintiff as “Don…” and the defendant judge as “the distinguished Mr….” In the end, they are all dismissive.
The argument that this line is “rarely used in practice” is the first and main reason for suppressing it. Judges, like everyone, make mistakes and err in their decisions. In some cases, they can be corrected by another court on appeal, but sometimes the absurdities are so numerous and so serious and manifest themselves in a repeated hostility toward one party that the judge or judges should be held accountable.
Judges, like everyone else, make mistakes and make errors in solving problems.
However, massive corporatism – one of the scourges of the profession – will always make it impossible for this type of action to flourish. On this basis, it was legally emphasized that in the Organic Act of July 21, 2015, the possibility of taking action against judges will be eliminated. From that point on, damages caused by judges will lead to the State not only being paid but also being held liable. In this way, the State General Administration becomes the insurer of the civil liability of judges, magistrates.
Seeking an explanation for this, I have consulted the diary and gazettes of Parliament and have not found any parliamentary group that has amended the BJP Act or mentioned it in a speech. Certainly, the technical shortcomings of amending more than a hundred scattered precepts mean that some laws have been overlooked. That is also the point.
One final important thought for the readers who have respected me so far: With the important legal changes nine years ago, the direct civil liability of judges and magistrates was suppressed and replaced by impunity, which is very serious. Well, that is why that decision was deleted.
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