ANALYSIS: How Spain’s judicial reform plan is raising a red flag in Brussels

The proposed reform of a top Spanish legal body has sparked a storm of controversy, with critics warning it risks undermining the judicial system's independence in concerns echoed by Brussels.

ANALYSIS: How Spain's judicial reform plan is raising a red flag in Brussels
View of Spain's Supreme Court in Madrid. Photo: AFP

For the leftwing government of Prime Minister Pedro Sanchez, the worry is that Spain could find itself compared to Hungary and Poland, which have been criticised by the European Union for trying to exert control over the judiciary.   

The proposed reform, which was submitted by Sanchez's Socialist-led coalition, would change how members are appointed to the General Council of the Judiciary (CGPJ), an independent body of judges and jurists.

Known as Spain's legal watchdog, the CGPJ is responsible for naming judges and ensuring the independence of both courts and judges.   

It has 20 members — 12 judges or magistrates and eight lawyers or other jurists — elected by both chambers of the Cortes (parliament).   

The reform specifically affects the appointment of the 12 judges.

'An institutional anomaly'


Alarm bells began ringing at the end of September when the European Commission singled out Spain in its report on the rule of law for not renewing membership of the CGPJ as it should have done two years ago.   

And it stressed the importance of ensuring that the council “is not perceived as being vulnerable to politicisation”, in a clear nod to the necessary separation of executive and judicial powers.

The council's mandate expired in December 2018 and since then it has been operating on an interim basis, given that Sanchez has been unable to push through the appointments for lack of parliamentary support, notably from the
rightwing opposition Popular Party.   

For nearly two years, Spain has been plagued by “an institutional anomaly”, according to Carlos Lesmes, interim head of the CGPJ, whose members normally serve five-year terms.

The current impasse is just one aspect of a bitter standoff between the Socialists and their hard-left coalition ally Podemos, and the PP, which started with the government's handling of the coronavirus pandemic.

Until now, the 12 judges in the CGPJ have been appointed by a three-fifths majority vote, but under the proposed reform that would be changed to an absolute majority.

The government has defended the move as the only way to break the impasse caused by the PP's dogged refusal to reach an agreement.   

But as well as angering the opposition, the proposed reform has also sparked concern in part of the judiciary.

Appointing these 12 council members by an absolute majority could allow the leftwing coalition to bypass the PP and chose judges of a certain ideological persuasion, whereas under the current system, all parties are compelled to compromise.

'Taking a step back'


The draft proposal has set alarm bells ringing at the European Commission, with spokesman Christophe Wigand telling AFP that Brussels was following the developments in Spain “closely”.

“Member states must follow EU standards to ensure that judicial independence is not compromised,” he said.

The European Association of Judges (EAJ) has also expressed “its great concern that Spain is taking a step back” with respect to the basic requirements for ensuring judicial independence.   

“The present option will increase the risk of undue political influence in the appointment of the members of the Judicial Council, damaging the perception of the society of an effective judicial independence,” a statement

But experts said the proposed reform did not mean Madrid should be put it in the same category as Warsaw or Budapest, who were criticised late last month in an EU report for undermining European legal standards and democratic

“Spain isn't Poland or Hungary,” said Pablo Castillo, an expert in law and political science at Sheffield University in northern England.    

Sanchez's proposal “is not going to lead to a collapse of the rule of law in Spain, although it's hardly supporting the independence of the judiciary,” he told AFP.

“But the proposed reform of the CGPJ in Spain does echo things that have happened in these two countries,” he admitted.

“The question of judicial independence is not black or white, it's a question of nuance.

By AFP's Marie Giffard


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EXPLAINED: What is Spain’s anti-trafficking law?

The Spanish government has passed a draft bill that seeks to beef up the fight against human trafficking and exploitation, addressing everything from prostitution to arranged marriages and organ trafficking.

EXPLAINED: What is Spain’s anti-trafficking law?

On November 29th, Spain’s Council of Ministers approved a draft law aimed at tackling human trafficking.

The law, known as la ley de trata (or anti-trafficking law) will bolster measures against sexual exploitation, forced and arranged marriages, slavery, forced labour, organ and tissue removal, and situations where vulnerable people are forced to engage in criminal activity.

Spain’s Justice Minister, Pilar Llop, said that the law will protect “people who suffer a lot in our country and also in other countries around the world,” strengthening the fight against trafficking mafias and organised crime groups to “break the business chain that is generated using human beings as commodities.”

The law will, among other things, create a national plan for the prevention of trafficking, protection and privacy protocols, a compensation fund for victims, social, health and financial support, and increase awareness of the problem at the educational level.

A particular focus of the legislation will be on minors, migrants, asylum seekers and refugees – groups thought to be most vulnerable to exploitation and trafficking.

Prostitution in Spain

Many cases of human trafficking in Spain result in sexual exploitation, but there exists no single law that deals directly with prostitution in Spain. Prostitution was decriminalised in 1995, though its related activities, such as pimping, trafficking, and sexual exploitation are still illegal.

READ ALSO: What’s the law on prostitution in Spain?

Although the clandestine nature of the sex work makes accurate data hard to find, according to a 2011 UN report, Spain is the third biggest centre for prostitution in the world, behind only Thailand and Puerto Rico.

In 2016, UNAIDS estimated that over 70,000 prostitutes were working in Spain, but some estimates put that number as high 350,000.

It is believed that 80 percent of them are foreigners, with many reportedly coming from Colombia, the Dominican Republic, Morocco and eastern Europe.

If the draft law is finally approved, its sexual exploitation clauses would include prison sentences of up to eight years for procurers such as pimps or madams.

Customers of prostitutes that have been forced to be sexual workers could also face fines and prison sentences of between six months and four years.

The Spanish government wants prostitution banned in its current form in Spain.

Forced labour

Clearly, the ley de trata will hope to combat some of the sexual exploitation of women in Spain, but the anti-trafficking legislation is more far-reaching than that and is also intended to tackle forced labour and slavery – two big but underreported problems in Spain.

According to the U.S State Department’s 2022 report on human trafficking in Spain, “labour trafficking is under-identified in Spain. Authorities report the pandemic increased worker vulnerabilities and contributed to the rise in labour trafficking in 2020 and 2021, especially in agriculture, domestic work, and cannabis cultivation in Catalonia.”

“In 2022, Ukrainian refugees, predominantly women and children fleeing Russia’s war against Ukraine, are vulnerable to trafficking. Labour traffickers continue to exploit men and women from Eastern Europe and South and East Asia, particularly Pakistan, in the textile, construction, industrial, beauty, elder care facilities, and retail sectors.”

It should be said, however, that the report also notes that “the government of Spain fully meets the minimum standards for the elimination of trafficking” and kept it in its Tier 1 of nations.

What does Spain’s anti-trafficking law include?

  • National Trafficking Plan

The law will create a protocol to coordinate the immediate referral of trafficked persons to specialised services, which will be overseen by a National Rapporteur on Trafficking and Exploitation of Human Beings run through Spain’s Interior Ministry, according to the Spanish government website.

The rapporteur will oversee anti-trafficking policy and represent Spain in the international arena, a role considered crucial as human trafficking is often a cross border, international problem.

  • Education

According to Article 7 of the law, efforts will also be made to improve educational awareness of the problems of trafficking and exploitation with a focus on human rights, sexual education, and democratic values.

  • Social, labour, and health support

A ‘Social and Labour Insertion Plan’ will be created for victims of trafficking and exploitation that provides social, health and employment support for victims.

This could include housing access, physical, psychological and sexual health support, employment opportunities, and financial assistance for victims and their family members.

  • Tightening labour market regulation

As trafficked and exploited people are so often brought in from abroad (and often dependent on the traffickers themselves for housing, food, money and so on) the regulation of migrant worker recruitment will be tightened through beefed up surveillance and labour standards.

  • Compensation fund

A compensation fund – the Fund for the Compensation of Victims of Trafficking and Exploitation (FIVTE) – will also be created, and will be taken from state budgets, as well as money or goods confiscated from convicted traffickers.

  • Protection and privacy

The anti-trafficking law will also provide protection services and maintain the victim’s right to privacy, protect their identity, access to free legal advice and even offer a living income.

According to Article 36 of the bill, victims trafficked from abroad will have the right to voluntary and assisted return to their country of origin. If they were brought illegally into Spain and don’t have official documentation, the Spanish government will issue them with the appropriate papers needed for travel as well as provide them with the option of residency.