Judiciary and Public Prosecutor: An Overview
ITEM 29. THE JUDICIARY AND THE PUBLIC PROSECUTOR
I. The Constitutional Setting of the Judiciary
The constitutional state is based on the separation of powers, or more precisely, on the material division of functions and the formal separation of powers. This means that state activity is recognized in distinct functions—ordinary tasks of very different material nature that are traceable to three core functions: the function to pass laws (legislation), the function of executing the mandates of these laws (executive), and the function to resolve conflicts that may arise in the application and interpretation of laws (judicial). Constitutionalism attributes each of these three functions to different organs, or sets of organs, of the state.
The rule of law requires the existence of bodies which, institutionally characterized by their independence, have a position that allows them to apply constitutional rules fairly, express the popular will, subject all public authorities to comply with the law, ensure the legality of administrative action, and give everyone an effective remedy in the exercise of subjective rights and legitimate interests. These organs are the courts that make up the judiciary.
The Constitution devotes Title VI to Judicial Power (arts. 117-127), whose legal regulation is effected by the Organic Law 6/1985 of July 1, the Judiciary (hereinafter LOPJ).
I.1. Concept of Judicial Power
The judiciary is the set of organs attributed with the state function involving the resolution, through the application of law, of disputes between citizens or between them and the government. The judiciary is composed, therefore, of the combination of parts that, according to the Constitution and laws, have the jurisdictional function attributed to them. The judicial function is to judge and to execute judgments in all kinds of processes (Article 117.3 EC). It is, therefore, an activity whose exercise is not limited to the procedural part but includes the power to execute judgments—that is, enforce the court order. This does not mean that judges and magistrates are required to perform court proceedings per se, but it does imply that they must have the necessary powers to effectively enforce rulings.
A feature of the judiciary is that power is diffuse, unlike the legislature and executive. It is predicable of all the courts of the country where they exercise judicial functions, a function unrelated to hierarchical subjection. This means that the exercise of its function is particularly complex due to the diversity of organs.
The second feature of the organs of the judiciary is that its identification as such derives from the exercise of the constitutionally assigned function, i.e., the judiciary. As art. 117.1 CE, Title VI, dedicated to the judiciary, states, justice is administered by judges and magistrates, members of the judiciary. Therefore, it is the fact of administering justice that makes up the judge or magistrate in the judiciary.
Hence, holders of organs such as the Civil Registry, which do not exercise judicial functions, which do not administer justice, are not, strictly speaking, members of the judiciary. Hence also, judges and magistrates are members of the judiciary only when they administer justice, not when they perform any other function assigned by law. Even members of the governing body of the judiciary, CGPJ, are part of it, as attributed by the Constitution, for government functions, but are not assigned any judicial function.
Currently, a reform of the judiciary is being studied. This is necessary for it to be an effective public service in the interest of the citizen, since it is characterized herein by its extreme slowness. It is necessary, therefore, to streamline processes, computerize court offices, increase judicial staff, etc. These measures require expanding the budget allocation for the current Administration of Justice.
I.2. Judiciary and Administration of Justice
This characterization of state power as derived from the judicial function performed is precisely what distinguishes the Judiciary from the Administration of Justice: the first is a branch of government, separate from the others and independent of them; the Administration of Justice, however, is functionally subordinate to the judiciary, to the extent that it implies a set of personnel and material resources that are arranged to better fulfill the purposes of the former.
The personnel and resources integrate with a variety of bodies in the service of officials of the Administration of Justice. Among them are the clerks, officers, assistants, agents, medical examiners, and, eventually, non-civil service personnel (Articles 454 to 550 of the Judiciary Law).
Material resources, in turn, are those for the accurate fulfillment of judicial power and are provided by the Government or the Autonomous Communities, in cases where it is provided for by the Autonomy Statute (art. 37 OLJ).
Taken together, all these resources form what has been called the Administration of Justice. In conclusion, there is a sharp distinction between the independent judiciary, composed only of judges and magistrates exercising judicial functions, and all resources of every kind that are arranged at its service and configure the Administration of Justice.
The distinction between the judiciary and judicial administration responds, on the other hand, to the dual nature of the task of administering justice. Indeed, the judiciary is, on one hand, and without doubt, one branch of government, but the function of administering justice is also a performance-based activity of the State, a public utility (essential), derived from the state monopoly on jurisdictional power understood as the power to declare and enforce the law. While the judiciary is fully independent of the other two powers, the administration of justice, and the right to provide it, is within the ambit of responsibilities of the Executive for the operation of public services in general.
This facet of public service is also the constitutional reference to justify—art. 119 EC—free access to justice for all who have insufficient means to litigate, which is reflected in the various procedural provisions in this regard and the existence of a service of publicly funded lawyers, known as the legal roll, and for that need. Also, it is this dual nature of state power and public service that is at the basis of the constitutional reference to the damage caused by judicial error and those arising from irregularities in the administration of justice, which will lead to compensation from the state (art. 121 EC). This provision is currently reflected in generic assumptions (sections 292 and 293 OLJ) and others specific to the case of judicial error that had resulted in pre-trial detention, where the imprisoned had been subsequently cleared by absence of the alleged act, or the stay of proceedings had been issued on the same cause (art. 294 LOPJ).
II. Constitutional Principles Governing the Judiciary
The basic characteristics of the exercise of judicial functions are unity, entirety, exclusivity, and responsibility.
II.1. Jurisdictional Unity
It is expressly enshrined in the Constitution in two different ways: regarding the judicial function itself, in art. 117.5 EC, which requires that the principle of jurisdictional unity be the basis for the organization and functioning of the courts; and for those who perform that function, in art. 122.1 CE, according to which judges and magistrates will form a single body. Constitutional recognition of the principle of jurisdictional unity has two immediate consequences: First, the territorial division of power operated by the Constitution does not affect the judiciary: the CCAA can assume legislative and executive powers, but the judiciary is unique in Spain. The second consequence of jurisdictional unity is the exclusion of any court not previously integrated into the organizational structure of the judiciary (art. 3.1 LOPJ). Special courts are prohibited, therefore, as well as courts of honor and exception, expressly mentioned by the EC—arts. 26 and 117.6. This also implies the prohibition of the Administration to impose sanctions that directly or indirectly result in imprisonment (art. 25.3 CE). Without prejudice to other bodies outside the judiciary, such as the Constitutional Court or the Court of Auditors, exercising judicial functions, jurisdictional unity knows no exception other than the purely relative military jurisdiction, which, according to art. 117.5 EC, must be regulated by law and should be limited to strictly military matters and cases of state of siege. Meanwhile, the Organic Law 4/1987, on the competence and organization of military justice, states that this jurisdiction is a member of the Judiciary of the State, to which must be added the existence of a Supreme Court Military Chamber, which is the ultimate authority in this field.
II.2. Entire Jurisdiction
Art. 24.1 CE guarantees an effective remedy; art. 103.1 provides for the submission of administrative action to the law; and art. 106 EC lays down the principle of control by the Courts of the regulatory powers of administrative action and its submission to constitutional purposes. This is reflected in art. 4 LOPJ, which states that jurisdiction extends to all people, all subjects, and all the Spanish territory. Entire jurisdiction is projected, then, materially, personally, and territorially without exception by reason of the person—unless the King, who is inviolable (art. 56.3 CE)—or by reason of the subject, or by reason of territory. In addition, art. 1.7 of the Civil Code provides that judges and courts have the inescapable duty to resolve all issues before them. It is, therefore, a closed system that ensures that any claim will always find, following the legal process provided, a court to consider the request and resolve it. It should be noted, however, that the full extent of jurisdiction extends to the application of laws, including the control of the legality of administrative action, and the latter is subordinated to the purposes that justify it (Article 106 EC). Not included, however, is control of timing, i.e., excluded from the scope of judicial review are those acts that, having been made by the competent bodies in accordance with the procedure provided by law and being materially in accordance with the system, are, however, susceptible to different estimates of their convenience or opportunity. As far as administrative action is concerned, the manifestation of these assumptions is that of the acts within the scope of the government’s role: in other words, judicial review does not extend to the timing of acts performed in the exercise of the leadership role in domestic and foreign policy and civil and military administration that the EC recognizes in the Government.
II.3. Exclusive Jurisdiction
Exclusivity is projected in two ways. On the one hand, the judicial function is reserved for judges and magistrates, and no one but them, not even the Supreme Judicial Council or the Public Prosecutor, may exercise it (Article 117.3 EC). Special jurisdictions are prohibited. Moreover, judges and magistrates cannot perform functions other than the judicial function and those expressly assigned by law to guarantee any rights. This prevents a disproportionate allocation of duties that makes it difficult for judges and magistrates to exercise judicial functions but enables the legislator, when it deems appropriate to ensure the exercise of a right, to grant judges other functions. The latter occurs, for example, in the electoral process or the Registrar. For the same reason, judges are subject to a rigid system of incompatibilities.
II.4. Responsibility
Art. 117.1 CE points to responsibility, immediately after independence and tenure, as one of the attributes of judges. This responsibility, constitutionally recognized generically, is readily distinguished. Although they undoubtedly exert important political power, there is no political accountability for judges and magistrates, as this would be contrary to the guarantee of tenure. The only form of control they are subjected to is that derived from the appeals filed, where appropriate, against their resolutions, and that has no further consequences than the possible annulment of the contested decision.
Judges are liable to disciplinary action in cases of breach of their duties, but this does not extend to the merits of decisions, as this would be incompatible with the independence of the judiciary (Articles 414 to 433 LOPJ). Liability is reduced to cases of singularity, which does not alter the judge’s decision (arts. 411 to 413 LOPJ). State responsibility is always generated, notwithstanding the return of the state action against a judge if the damage is produced by malice or gross negligence, and this does not alter either the resolution or the judge’s position.
It follows that the only real responsibility of judges and magistrates in the exercise of their function results in criminal liability, and more specifically, in the case of prevarication, consisting of knowingly making an unfair decision. It is the sole responsibility for the content of the judging function that can be attributed to the judge (arts. 351 to 357 Criminal Code).
III. The Constitutional Position of the Judge
III.1. Impartiality
The judicial function is attributed to a third power, not just to avoid the concentration of power, but especially to ensure that law enforcement and the interpretation of the rules applicable to someone can be resolved fairly by someone different and outside of those who produce the basic rules of order and those who promote and execute its contents.
The constitutional position of the judge focuses on one basic principle: the principle of impartiality. As stated in art. 6.1 of the European Convention for the Protection of Fundamental Rights of the Person, the principal right of the parties in a process is the right to an impartial tribunal. Therefore, impartiality is a substantial feature of the judicial function, which, given the fragmented nature of this power, is to say that impartiality should be the basic characteristic of every Judge and Magistrate.
To achieve this impartiality, assurances are given to judges and magistrates. These are instrumental and not ends in themselves: their aim is to ensure the impartiality of the one who judges.
III.2. Independence and Legitimacy
Traditionally, this set of guarantees is summarized in the notion of independence. This attribute is already collected in the title the Constitution dedicates to the judiciary: in fact, independence is the first feature mentioned in article 117.1 CE regarding judges and magistrates.
It means that members of the Judiciary adopt resolutions in accordance with the law and may not receive any orders, instructions, suggestions, or guidelines on the facts before trial, the legal standard to apply, the meaning to be given to this rule, or the resolution that is ultimately adopted. A judge is only subject to the Rule of Law (Article 117.1 EC in fine), law understood as the set of legal systems.
This is underlined by the OLJ when it says that judges and magistrates are subject only to the Constitution and the rule of law (art. 1.1 LOPJ) and, therefore, the principles and values that the Constitution calls for or picks up. In this sense, art. 5 LOPJ provides that: “The Constitution is the supreme law, and binds all judges and courts who interpret and apply the laws and regulations according to the precepts and constitutional principles, according to the interpretation of the same resulting from decisions rendered by the Constitutional Court in all types of processes.” The only practicable way to correct the application of law by a judicial body is through the resources provided by law.
Submission to the law, while excluding any possible interference, includes the obligation of the judge to consider, in the legal reasoning that leads him to resolve a conflict, the source system in which written rules, particularly law, take pride of place. This keeps the judge outside of influences but also reminds him that he is an applicator of the law, and not a free creator of law.
Submission to the law is also the source of the judge’s legitimacy in the exercise of judicial functions. Given that the appointment of judges by popular election does not take place, and given their integration into a body of the race, the only democratic legitimacy of the judge is precisely constrained by the application of the law, which expresses the general will. Only this application of the democratically legitimized rule legitimizes, in turn, the one who, without being elected either directly or indirectly, administers justice from the people. It is, therefore, not a source of legitimacy, but an exercise thereof.
Judicial independence is absolute, extending over all, and art. 13 LOPJ provides that all are obliged to respect the independence of judges and magistrates. This extends to the governing bodies of the judiciary and even the court itself, none of which can issue general or special instructions aimed at its lower levels regarding the application or interpretation of the law.
IV. The Statute of Judges and Magistrates
To ensure the independence of judges, the Constitution underpins their legal position with a core of guarantees and some limitations of rights that, taken together, constitute a real status of the judge. This core of guarantees is largely contained in the Constitution and is developed and expanded in the Organic Law of Judicial Power.
Art. 122.1 EC provides that the legal status of judges and magistrates is to be developed by that law, which is not just a reserve of organic law, but a reservation for a particular organic law for all matters relating to the statutory position of judges. This reserve, which removes from the executive and even the ordinary legislator the possibility of regulating the administrative status of judges, is the first guarantee of independence.
a) Tenure
It is a traditional safeguard to ensure independence. It means that judges and magistrates cannot be dismissed, suspended, transferred, or retired except for legally established reasons and with due process of law (Article 117.2 EC)1. The purpose of this provision is to prevent the actions of a magistrate or judge from having disadvantageous consequences for the position he holds, or to prevent those who have the authority to do so from deposing or removing, in a given process, a judge whose behavior is not satisfactory, imposing in his place someone more receptive to their wishes.
This removes from the executive all sanctioning power or any authority over administrative situations and careers. The Constitution states that the implementation of regulations related to the mobility of members of the judiciary corresponds to a body outside the legislative and executive: the councils of the judiciary, which are responsible for appointments, promotions, inspection, and discipline within the judiciary (Article 122.2 EC). The attribution to this body, or its own organs, of the judiciary, such as the Boards of Governors, the Presidents, or senior judges, of the administrative authority relating to judges and magistrates is an additional guarantee of judicial independence.
In all cases, the suspension or dismissal of a judge or magistrate corresponds to the Supreme Judicial Council.
Also, the details and rules regulating the career of the judiciary are guided by the purpose of securing independence. In some cases, the appointment is discretionary, but the authority is vested in the CGPJ. This prevents the executive from influencing the career and, therefore, the necessary impartiality of judges.
1 The causes of loss of condition are renunciation, loss of nationality, administrative penalty, criminal conviction or the process leading to its imposition, disability, and retirement.
b) Restrictions and Prohibitions
The status of judges includes positive assurances: independence, tenure, and the removal of all executive power to sanction or any authority over administrative status and career. But the judge’s statute also necessarily includes negative actions or limitations of the powers that the system recognizes in the majority of citizens. Thus, judges and magistrates are constitutionally forbidden to belong to political parties and trade unions (Article 127.1 EC), a precept completed by the provision of a specific partnership scheme that has been developed by the legislative staff (art. 401 LOPJ). Although it is impossible to prevent a judge from having a corresponding political ideology, it is possible to avoid the public expression of that political ideology through affiliation with a political party or trade union.
Besides the right of political and union association, with the same goal of preserving the image of impartiality of the judge, the exercise of fundamental rights such as freedom of speech, assembly, or strike is also limited. Thus, judges are prohibited from direct criticism of the government, cannot attend, as members of the judiciary, public gatherings of a non-judicial character, and cannot, in elections, take more part than casting their vote.
The LOPJ further provides that judges or magistrates who hold political office must then spend three years of active status.
The preservation of the judge’s impartiality also led constitutionalism to provide for members of the judiciary a rigid system of incompatibilities, which vetoes judges and magistrates from all activities outside the judicial function itself: they are unable to hold, while they are active, other public office or paid employment or profession, or carry out business activities or consulting. Only legal teaching and research and literary, artistic, scientific, and technical pursuits are open to them (Article 127.2 EC).
The competence to determine the occurrence of inconsistency or violation of the applicable prohibitions also falls to the Supreme Judicial Council.
V. Structure of the Judiciary: Organization
The residenciación of judicial authority in various organs and, therefore, fragmentation is a feature of the judiciary, which, while being single, is given a structure that allows a single system to integrate multiple organs.
2 Apart from this Chamber, the military courts form the Central Military Court, the Territorial Military Courts, and the Robed Military Courts (with an instructor feature).
3 A territorial organizational unit used exclusively by the judiciary, composed of one or more neighboring municipalities within the same province.
Three different, concurrent criteria articulate the structure of the judiciary: the subject matter of the conflict to be resolved, the territorial, and the hierarchical.
The Subject Matter Criterion
This involves the division of jurisdiction into four different jurisdictional areas: civil, criminal, social, and administrative, even though the jurisdiction remains unique. In addition to these four orders, the Supreme Court has a Military Division2 and there are also a number of courts (e.g., Juvenile Courts, Prison Security Courts, or Courts for Violence Against Women) specialized in the subjects indicated by their names. Moreover, it should be noted that the CGPJ can agree that some courts will deal exclusively with certain kinds of issues. This can give rise to specialized bodies, such as those for family issues or commercial mortgages.
The Territorial Criterion
This criterion results in the division of the country into different areas. Thus, in accordance with Art. 30 LOPJ, the State is organized territorially, for legal purposes, into municipalities,3 judicial districts, provinces, and autonomous regions, to which must be added the entire country, over which two courts have jurisdiction: the Supreme Court and the Audiencia Nacional. The area covered by judicial geographical divisions (municipalities, provinces, and autonomous regions) coincides with that of the administration, so it is only necessary to determine the scope of the judicial districts, that is, to define what is called the demarcation. The judicial districts are defined in the Act on Judicial Demarcation and Floor.
In accordance with the territorial basis, each of the territorial areas corresponds to a specific organ. Thus, municipalities that are capitals of judicial districts have a Magistrates’ Court, the judicial district, with one or more Courts of First Instance and Instruction; provinces have a Provincial Court and Courts of Criminal, Social, Prison Supervision, Juvenile Courts, and Courts for Violence against Women, with one or more Courts of Administrative Litigation.
All Autonomous Communities have a Superior Court of Justice, the highest court in the implementation of autonomy rights, subject to the jurisdiction of the Supreme Court. It should be stressed that the High Court of Justice is not a judicial organ of the CCAA, but a single organ of the judiciary in the CCAA.
In the entire country, the High Court, consisting of the Central Criminal Court and the Central Criminal Court, which hears cases of exceptional importance, especially in criminal matters, lacking a Civil Division, and the Supreme Court, the highest court in all respects, except for the provisions concerning constitutional guarantees (art. 123.1 EC), have jurisdiction. It exercises, therefore, the highest judicial offices.
The territorial criterion can be qualified in some cases due to geography, population size, or workload, creating, for example, sections of the Provincial Court in places other than the provincial capital, provincial courts in different places from the capital, or chambers of the Superior Courts of Justice in places other than the residence of the body fixed in the Statute of Autonomy.
The Hierarchical Criterion
This criterion corresponds to the geographical one, in the sense that a larger and overlapping territorial area implies a higher hierarchical level. However, judicial independence renders the notion of hierarchy vacuous: it is based solely on a more professional level and, where appropriate, the power to revoke, modify, or confirm the decisions of lower organs, provided this is done through an appropriate legal recourse. There is no possibility, as already mentioned, for governing bodies to issue instructions to lower courts on the interpretation or application of rules.
VI. The Government of the Judiciary
The guarantees that constitute the status of judges and magistrates could be violated if the personal or professional future of judges or magistrates depended on a power outside the court: if so, those who could change this situation could also influence the decisions of judges and magistrates. This is especially true in two particular cases: disciplinary authority and the promotion scheme. By misusing the former, one could threaten or punish judges who are not responsive to the desires of those in power; by controlling the latter, one could ensure that those who aspire to professional success legitimately adopt decisions that are not harmful to those in power in order to achieve this.
To this end, the government of the judiciary is attributed to the CGPJ and other organs, thus removing any possible influence of the other two branches, resting the power either with the judiciary itself or with a specific organ surrounded by outstanding guarantees.
VI.1. The General Council of Judicial Power
To avoid this problem, the Constitution specifically designs a constitutional body, the General Council of the Judiciary (CGPJ), which is provided with the function of governing that branch.
It is not a representative body of the Judges. It is an autonomous government body that guarantees the independence of the judiciary in the exercise of judicial office for the country. However, it is not a court and is not part of the judiciary. It does not exercise any judicial function.
The CGPJ is the governing body of the judiciary, not a body of self-government. The Constitution does not recognize, then, in the judiciary, a power to govern itself, that is, to choose its own rulers and the body that creates the regulations that affect them. What it does is attribute the government of the judiciary to a body outside the legislature and the executive, characterized by a strong judicial presence. With this option, the Constitution itself reserves for the governing body it creates those functions whose exercise may affect judicial independence.
The rules governing it consist of: art. 122 CE, Title II of the First Book of the Law on the Judiciary (OLJ), and Regulation 1/1986 of April 22, on the Organization and Functioning of the CGPJ—approved by this same body.
a) Composition of the CGPJ
It comprises the Chief Justice, who presides, and twenty members appointed by the King for a period of five years. Thus, art. 122 EC notes that the CGPJ consists of 21 members and prescribes that twelve of them must be chosen from among judges and magistrates of all categories in the terms established by an Act. This constitutional expression was undoubtedly one of the most controversial until the Constitutional Court, in STC 108/86, determined that the constitutional jurisdiction does not require that those twelve Members be elected by judges and magistrates, but from among them. Therefore, the legislature can establish the organic formula it considers most appropriate for their selection. In fact, several formulas have been used. Since 2001, twenty members of the CGPJ, chosen equally by both houses of the legislature, that is, ten by Congress and ten by the Senate, twelve members must be judges chosen from among candidates nominated by the Judicial Associations or by a number of judges representing at least two percent of those who are on active duty. The other eight should be appointed from among lawyers of recognized standing with at least fifteen years of practice of their profession. Thus, of the ten proposed by each House of Congress and Senate, six are to be judges and four jurists of recognized competence.
Their mandate lasts five years and they cannot be re-elected. A three-fifths majority is required for their election.
Once the 20 members are appointed, they elect, by a three-fifths majority, that is, a minimum of 12 votes, the President of the Supreme Court (Article 123.2 EC), who in turn presides over the CGPJ and is the only member of this body who can be re-elected, and only once. The LOPJ requires that the President be elected from among judges or jurists of recognized competence with over fifteen years in the judicial career or the exercise of the legal profession.
The fact that the mandate of the members of the judiciary is five years prevents it from coinciding with the legislature, which downplays the significance of the parliamentary source of their election, since the CGPJ must always be consistent, in any case, with at least one legislature other than the one that elected it.
b) Functions of the CGPJ
Its primary mission is to ensure the guarantee of the independence of judges and magistrates in the exercise of judicial functions, which are specifically protected against all, even against the judiciary and the governing bodies of the Judiciary.
In this sense, its functions are very diverse. It appoints two members of the Constitutional Court (Article 159.1 EC), evacuates information on other positions, such as the Attorney General, approves an annual report, issues reports on certain draft laws, etc. But the functional core that justifies the existence of the CGPJ includes those functions that can compromise judicial independence, since it involves the exercise of disciplinary powers or influence over the judge’s administrative status or career prospects. The EC defines the CGPJ as the governing body and attributes to it functions related to the judiciary concerning appointments, promotions, inspection, and discipline (Article 122.2 EC).
The CGPJ holds exclusive jurisdiction with respect to:
- Selection, training, and retraining of judges and magistrates.
- Appointment of judges and magistrates.
- Promotion of the same.
The promotion scheme is strictly regulated, that is, devoid of any intervening body, even the CGPJ, in many sections of the judiciary, which are resolved by competition in favor of those who hold better positions in the hierarchy. There are, however, certain positions, such as Supreme Court Justice or Chief Justices of High Courts of Justice or Provincial Courts, which are held by those who, meeting the legal requirements, are appointed by the CGPJ (3/5 majority). Only certain positions are covered by designation.
- Inspection and supervision of the courts, which aims to check and control the operation of the Administration of Justice.
- Exercise of all powers relating to the administrative status of judges and magistrates—special services, absences, licenses, permits, etc.
- Disciplinary authority for more serious sanctions: it is the only body competent to impose on members of the judiciary the sanctions of forced relocation, removal, and suspension. The first two, the most serious, correspond to the plenary and other Disciplinary Committees of the body itself or other governing bodies of the judiciary.
The problem with the exercise of disciplinary power is precisely that its decisions regarding penalties are reviewable by the courts concerned, which leads to the paradox that the governed, the judges, can prosecute and, if necessary, revise the actions of the rulers.
The CGPJ is not politically responsible for its management; its members cannot be removed from office before the end of their term. No court may, therefore, require political responsibility. It is subject to some control by Parliament, to which it must submit an annual report, other than the relationship it needs to refer to the Government, on the status, activities, and operations of the Board and the courts.
VI.2. Other Government Bodies
In addition to the CGPJ, the judiciary has other government bodies for properly executive matters, which are subordinate to it. These are the organs of internal government, consisting of components chosen by judges and magistrates.
As multi-member bodies, the Government is made up of the chambers of the Supreme Court, the High Court, and the Superior Courts of Justice. They hold competitions of various kinds, aimed at ensuring the better functioning of the courts they apply to. To this end, they have:
- Organizational competencies: to adopt the rules of distribution of cases and determine shifts in the composition of corporate bodies.
- Inspector powers: to propose inspections.
- Administrative and management skills: promoting retirement records, urging the adoption of measures to improve the administration of justice, promoting and cooperating in economic management.
- Disciplinary authority: the power to impose on judges dependent on them the penalties for serious offenses.
Finally, the governance structure of the entire judiciary also includes single-judge bodies, which are the presidents of the Courts and Hearings and senior judges. They represent the judicial organs and their functions, given the specificity of the judiciary, are more of coordination than management, in addition to exercising the power to sanction—in the case of the presidents—for misdemeanors.
VII. The Prosecution in the Constitution
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The Public Prosecutor or not part of the judiciary. The Constitution provides little regulation of the prosecution and leaves this respect, therefore, ample leeway to the legislator. According to art. 124.1 EC role is to promote the action of justice in defense of legality, the rights of citizens and public interest protected by the Act, as well as ensuring the independence of the courts and securing before them the satisfaction of social interest . Its function is to promote action and courts.
That same article, in its second paragraph states that the prosecution exercises its function through its own organs, that is, executes the instructions received through its own bodies and not common to the executive bodies and the Administration.
Immediately afterwards exposed to the principles governing its action, the principles of legality, impartiality, unity of action and hierarchical dependency.
The principle of unity of action is characteristic of the administrative organization.
Acting on the principle of hierarchy is embodied in the obligation to respect and comply with the orders and instructions from superiors and, first, the Attorney General of State. The point of immediate imputation of the principle of hierarchical dependence is the Attorney General and, subject to it, the other chief prosecutors. According to art. CE 124.4 The Attorney General is appointed and removed a government proposal. This is justified because the prosecutor is without doubt one of the main perpetrators of the criminal policy which is obviously part of the address domestic policy for the Government-art. 7 EC-and which it is responsible-art. 108 EC, the Congress of Deputies. However, it should be noted that the hierarchical dependence occurs within the Prosecutor (the lower organs on the top) but not of it from the Government. The non-dependence of prosecution from the Government is assured by the tenure of Attorney General for a term of four years, except priced removal causes.
The public prosecutor acting in accordance with the principles of unity and hierarchy means that the Government, while responsibility for criminal policy, appoints the Attorney General, which are hierarchically subordinate all members of the public prosecutor. On the other hand, the entire organizational structure of this is also hierarchical, as stated in the Chief Prosecutor of each body exerts its address in dependence of their superiors, they can replace the upper and the lower that both the Attorney General as the chief prosecutors can issue orders to their subordinates or instructions. The government, meanwhile, can interest the Attorney General to promote particular actions.
The subject of the prosecution to the principles of legality and impartiality currently crystallizes in the possibility of prosecutors reasonably opposed to the orders and instructions from a superior that it considers contrary to law. It is a mechanism to insurer subject to the principles of legality and impartiality.
Depends on the prosecutor’s action to promote justice in defense of legality, the rights of citizens and public interest protected by the Act ordinarily develop this function is the exercise of the prosecution in criminal proceedings. This does not mean, however, unlike what happens in other countries, that the prosecution has a monopoly of prosecution. In Spain, it may be urged also by the victim for the crime, and even a third completely alien to it, through the mechanism of action contained in popular art. 125 CE. The constitutional reference to the fairness shows that, although the prosecutor acting on a process, not a part, and it is not, because it defends a right or interest, however legitimate, but the legality and the public interest protected by law
The organizational structure of the prosecution is, as mentioned above, hierarchical, and relatively parallel to the judiciary. It is crowned by the Attorney General, appointed after consultation of the General Council of the Judiciary for the Government. The Organic Statute of the prosecutor added that the appointment should be on a prestigious lawyer with over fifteen years of effective exercise of the profession, and the TS has interpreted this term refers to the legal professions. Own bodies through which the public prosecutor acts are public prosecutors from the different geographical areas and prosecutors created with functional performance criteria to specific organs, like the Attorney to the Constitutional Court or the Special Prosecutor.
The prosecution also has three other organs that have specific features: the Fiscal Council, the Board of Tax Board and the Board of Senior Prosecutors from the Autonomous Communities. The Audit Committee is composed of some ex officio members and others chosen by the prosecutors themselves, and attributed important functions, among which is mandatory reports promotions of members of the prosecutorial career. It is a political body whose functions and quasi-corporate by way of choice. The Room Tax Board is composed of senior positions within the career prosecutor. Its functions are largely technical and are aimed at developing criteria for interpreting legal standards and preparation of reports and newsletters. Finally, the Board of Senior Prosecutors reflects the Autonomous Communities, within the Public Prosecutor of the State land use planning.