Empirical Context
Fig. 4.1
The structure and hierarchy of the Spanish courts system. Courts of First Instance and Magistrate, or simply lower courts, are the entry point for junior judges in the judicial system
4.2.2.2 Access to the Judicial Professional Career
The research on judicial selection has been connected to discussions regarding both the quality of justice and the independence of judges among democratic regimes (Goldman 2001). In Spain the literature on judges selection regarding their independence has been usually carried out by legal experts (e.g., González-Granda 1993) who discuss either judges’ legal and labor status (i.e., studies on the función judicial) or legal and formal aspects of the selection process itself (García-Valdés 1987). Besides, Jiménez-Asensio (2001) offers a view of Spanish judicial selection system from a comparative perspective.
On the other hand, a few studies in Spain have been devoted to study the judicial selection process as a measure of (different forms of) quality of justice. As in most aspects of the social approach to judges, the first achievement in this field was Toharia Cortés (1975, Chap. 2), who offered a discussion of judges selection process in terms of (a) judges’ own evaluation of the process itself, (b) judges’ socialization process—related to their social origins, and (c) their evaluation regarding the quality of the knowledge gathered during the selection process (i.e., the preparation of the entrance examination).
More recently, di Federico (2005) coordinated a state-of-the-art comparative volume which explored the recruitment and evaluation of judges’ professional career in several European countries. In this context, Poblet and Casanovas (2005) provided a discussion on both selection and evaluation mechanisms in the Spanish judicial system, within the context of a wide research program on the application and impact of information technologies and knowledge management systems in the Spanish legal—specially judicial—system (see also Casanovas et al. 2003; Benjamins et al. 2004b, 2005; Casanovas et al. 2005; Casellas et al. 2006; Poblet et al. 2008; Casellas 2008).
Regarding their recruitment, the basic selection system for Spanish judges is a public, competitive entrance examination [oposición libre] among law graduates, completed by successful conclusion of a course in the Judicial School and, currently, finally supported by a short period of practical work in a court.9
Fig. 4.2
The whole sequence of steps to become a judge in Spain (translated and adapted from the Spanish General Council of the Judiciay’s official site: http://www.poderjudicial.es)
Being a Spanish citizen and 18 years old—apart from holding a law degree—are the only requirements to be candidate to the entrance examination.10
Although the original 1985 law provided that a set proportion of judges may be selected from clerks of the court and other legal professionals with some minimum experience, a controversial reform of the law in 2003 established that a competitive examination would be—as it actually was before 1985—the only way to become a judge in Spain.
Figure 4.2 outlines the whole process since a candidate takes the entrance examination until he or she is appointed to a Court of First Instance and Magistrate. We see that it is composed by three different exercises, one written and two oral. Two basic features may be emphasized about the examination. First, with the exception of constitutional law, which is only included as a topic in the first exercise (written), all three exercises are mainly on the same topics. And second, all three exercises, though specially both oral ones, demand a great mnemonic capacity from the candidate’s part.
Poblet and Casanovas (2005, p. 193) give an essential description of this issue:
The selection process […] largely relies on the assessment of the candidate’s ability to memorise things. Legal topics basically cover the same topics covered by the law school curricula: civil, criminal, constitutional, and general law […]; civil and criminal procedure, administrative, commercial and labour law […]. In oral examinations, candidates are required to “recite”—to “sing”, in the judicial jargon—five different topics selected at random (out of 300) within a specific amount of time. According to data form the Judicial School, candidates have spent up to four years after graduation preparing for the competitive examination. To do so, they normally hire a “coach” or preparador (usually, a senior judge or prosecutor) who teaches them how to “sing” properly and provides useful tips for recitations that are carefully rehearsed once or twice a week.
Regarding some of the consequences of this kind of selection process on judges themselves, (Jiménez-Asensio 2001, p. 3) comments that:
Little wonder if, at the end, successful candidates will have developed a strong capacity for endurance. But, by the same token, some of them will also develop some kind of psychical alteration (generally, incidental and, exceptionally, more severe): anxiety, emotional imbalances, anguish, etc. It is a tough experience, even if judges tend to overcome it very quickly. Those hundreds or thousands who fail, in contrast, will have used years preparing for the examination with neither compensation nor guarantees to access the job market.
Therefore, Spain presents a selection process for judges which in principle is common—in general terms—among civil law countries. It thus implies that the judiciary is part of the governmental bureaucracy. The method of competitive entrance is shared by countries such as France, Portugal, Belgium, Italy, Perú, and Brazil, though the first two (and Spain) require a supplementary period in some kind of judicial school after passing the competitive exam (Goldman 2001, p. 8026). Nevertheless, the Spanish selection system is unique regarding the mnemonic demands of its competitive examination.
Candidates who pass the entrance examination are considered civil servants on practical training, and they do not acquire the category of judges until passing the further Judicial School examinations. After that, as said above, they spend at least six months in a guided, practical internship in a court with a senior judge. Judicial appointments are determined by judges’ results in the entrance examination and the Judicial School, so that the best ones may choose their destination among the ones available.
The judicial career has three different categories (in rank order): judge, senior judge, and senior judge of the Supreme Court. Judges with at least 3 years of experience must promote to the following category, which implies a court change (i.e., being appointed to courts of larger cities or even more specialized courts). Thus professional promotion in the judicial hierarchy is compulsory and is based on seniority, after a minimum of 3 years in service.11
In conclusion, the first appointment locations of Spanish junior judges are Courts of First Instance and Magistrate scattered throughout the Spanish territory. They must remain 1 year in the specific location of their first appointment before they may apply for a transfer to another Court of First Instance and Magistrate (e.g., one closer to their homeland). However, they shall actually spend at least 3 years in this kind of courts before promoting.
4.2.3 Courts of First Instance and Magistrate
4.2.3.1 Distribution and Basic Functions
In Spain there are currently 4984 judges located over 3654 courts, a third of which are Courts of First Instance and Magistrate, or simply lower courts. Lower courts are located in all the province capitals and more populated cities according to the basic territorial unit for judicial organization which is the judicial district [partido judicial], a design implemented in the mid nineteenth century. Currently the Spanish judicial system has 432 judicial districts, each of them having one or more Courts of First Instance and Magistrate (see Table 4.1).
In Spain there are currently 1046 Courts of First Instance and Magistrate (CGPJ 2013), which are distributed according to a population criteria, having achieved an average of 10.6 judges per 100,000 citizens in 2012 (see Table 4.1).
Table 4.1
Number and distribution of the Spanish judicial districts, and number of members of the judiciary per 100,000 people. (Sourcmoment of the surveye: CGPJ 2013)
Autonomous community | No. of districts | Judicial density |
|---|---|---|
Andalucía | 85 | 10.3 |
Aragón | 16 | 10.6 |
Asturias | 18 | 14.0 |
Illes Balears | 6 | 11.6 |
Islas Canarias | 20 | 12.0 |
Cantabria | 8 | 12.6 |
Castilla y León | 41 | 11.7 |
Castilla-La Mancha | 31 | 8.7 |
Catalunya | 49 | 10.1 |
Comunitat Valenciana | 36 | 10.0 |
Extremadura | 21 | 10.0 |
Galicia | 45 | 12.0 |
Madrid | 21 | 10.6 |
Murcia | 11 | 9.9 |
Navarra | 5 | 10.1 |
Euskadi | 14 | 10.4 |
La Rioja | 3 | 11.4 |
Ceuta | 1 | – |
Melilla | 1 | – |
Total | 432 | 10.9 |
As noted above, despite the existence of the Justice of the Peace, the Courts of First Instance and Magistrate are the actual entry of the whole Spanish judicial system. Besides, these are the kind of courts where junior judges start their professional career, though in large cities these courts cannot be filled with entering judges but with more experienced ones (thus subjected to a first promotion after as service). Therefore, junior judges are appointed to courts located in medium to small cities.
Courts of First Instance and Magistrate handle most civil cases and decide upon minor criminal offenses. Moreover, they are also responsible for opening preliminary proceedings in any type of criminal offense. Logically most criminal proceedings—e.g., resulting from violent situations—start during the on-call service.
4.2.3.2 The Court Office
Court office 12 is the official name given to “the organisation instrumental in supporting and assisting jurisdictional activity of Courts and Tribunals” (LOPJ article 435.1). The organic law establishes that the court office shall be based on the principles of hierarchy, division of functions, and coordination, though it shall be ruled by criteria such as agility, efficacy, efficiency, rationalization of work, responsibility of management, coordination and cooperation among administrations, with the general aim of ensuring a high quality of service deserved by citizens according to their rights and duties.
Fig. 4.3
The court office, its basic components, units, and administrative levels
Figure 4.3 shows, first, the basic organization of the court office (within the green line). According to the law, the basic organizational element of this structure is the Unit “which includes appointments therein, linked functionally on the basis of their tasks” (article 436 LOPJ). There are two types of units, direct support units, and procedural common services units.
The direct support unit is the one that “assists judges in performing their duties, carrying out the necessary action for the precise and effective fulfilment of as many decisions as are issued” (article 437.1 LOPJ), while the common services unit, “without being integrated in a specific judicial body, assumes the centralised work of management and support in activities deriving from the application of procedural laws”. Duties of the common services thus include general management activities such as “registration and distribution, acts of communication, judicial assistance, enforcement of judicial decisions and voluntary jurisdiction”.
The posts corresponding to both units must be filled with low-rank civil servants—either with permanent or temporary contract—who may carry out a number of activities: procedural and administrative management, and judicial assistance. In most cases, these civil servants are selected by (and depend on) the Department of Justice of the corresponding Autonomous Community, and a high educational degree (such as a law degree) is by no means required.
Both units function under the command of the clerk of the court. Clerks of the court are a national, professional body of high rank civil servants depending on the Ministry of Justice,13 whose essential task is to authenticate court documents, for which they must “provide authentic records of the performance of proceedings at the Court and before thereof and of the facts occurred that are relevant from a procedural point of view through the appropriate acts and proceedings” (article 453 LOPJ).14 Like judges, they are selected through public, competitive entrance examinations and must have a law degree.
In particular, clerks of the court have the power to manage and supervise the staff as regards procedural or technical aspects, including supervising the distribution of cases among civil servants and arranging their activity. They are also responsible for driving the legal procedure including giving orders for the conduct of the proceedings—except for those exclusively exercised by judges—which means proceedings such as order, certification, notification or enforcement (article 456 LOPJ).
Moreover, clerks of the court are responsible for the Judicial Management Records Office, and for “the deposit of goods and articles affected to the court files, as well as for the deposit of pieces of evidence in criminal cases at the premises assigned thereto” (article 459 LOPJ). Finally, clerks of the court are in charge of the official statistics regarding the court’s activity, which they must make known by law to the National Court Statistics Commission for its approval (article 461 LOPJ).
Finally, the third essential component of the court office is obviously the judge. Judges in Spain do not depend on the Ministry of Justice but on the General Council of the Judiciary, the governing body of the Spanish judiciary. The Spanish constitution created this governing body in order to ensure the judiciary’s independence. It is responsible for appointments, promotions, inspection, and discipline matters regarding Spanish judges (see Moreno Catena 2003, pp. 241–257).
Again in Fig. 4.3 we may see that one of the most salient features of the court office as it is currently set up is that three different administrations, which are not hierarchically related (i.e., General Council of the Judiciary, Ministry of Justice, and Autonomous Community) are responsible for its three essential components.
A first conclusion regarding this multilevel organization is that no clear hierarchical lines may be drawn among its members. Obviously the judge is the head of the court, but it is not clear whether he/she be also head of the court office, since he/she is not directly responsible for the clerk’s work—who is part of an independent body, so in a sense they are peer professionals—and has no direct control over the direction or management—even technically or procedurally—of the civil servants’ work within the direct support and common services units (which is the clerk’s duty).
This lack of clear hierarchical relationship is even more apparent among judges and public prosecutors and forensic doctors, the latter two being completely independent from the court office.
Yet judges seem to have actual authority, and we shall see later that they also affirm to have a high degree of satisfaction regarding their relationships with all the other members of the court office. However, interaction among bodies depending on distinct political and administrative levels may not enable rapid and efficient conflict resolution, thus providing potential instability foci at workplace.
4.2.4 The On-Call Service
One of the main organizational principles governing the Spanish jurisdiction resides on the on-call period of judicial settings, i.e., Courts of First Instance and Magistrate. The organization of on-call activities are stated in the Section II of a general regulation aimed at ordering accessory matters of the judicial activity.15
This regulation provides, first, that at least one of the Courts of First Instance and Magistrate within each judicial district will be on call, establishing a rotation system among all courts that ensures a continuous, non-stop service throughout the whole year. Regularly courts (i.e., judges and the court office) remain on call for full one-week periods. The law also provides that at least one public prosecutor and a forensic doctor will be available during on-call services.
While on call, the court office is responsible for handling all incoming cases reported by the police, the public prosecution or merely by citizens. This means that a judge who is on call must handle all reports drawn up by the police (e.g., as a result of a traffic accident) and the private prosecutions presented by citizens.
This also implies that the judge who is on call will be in charge of supervising all enquiries related to the facts of a criminal offense dealt with by the on-call service. It may include the adoption of precautionary measures for protecting victims (e.g., a restraining order), the adoption of particular court orders regarding the personal situation of a detainee, to hold immediate trials in those cases provided by the Criminal Law (e.g., as a result of driving without license), and carrying out other urgent procedures.
Apart from these general features, the on-call service is specially dedicated to the adoption of all the necessary court orders regarding the protection of female victims of domestic violence, and of minors.16 Finally, the on-call service is entitled to act on civil issues in some special cases, though logically the on-call service usually only handles criminal offenses.
On the other hand, all judges—and the corresponding staff—in Courts of First Instance and Magistrate must accomplish on-call functions, but naturally the rotation recurrence for on-call will depend on the number of courts and judges within a single judicial district. Therefore those judges who are in Courts of First Instance and Magistrate with only 1 judge are continually on-call—though the law provides relief measures in those cases—, and those who are in judicial districts with, say, 4 judges have one on-call week per month.17
Most frequently, the on-call service consists of two different types of judicial activities (Rodrigo et al. 2004):
Indoor activities (within the judicial facilities). Judges on call, in the presence of a public prosecutor, may hear detainees—who are assisted by a lawyer—, victims of a crime, witnesses, etc. They also may ask for a habeas corpus to the police in case of illegal restraint (more than 72 h in police premises), impose further imprisonment for detainees or decide over their conditional release; authorize protection to victims of domestic violence, impose measures of separation to aggressors, ask for judicial cooperation to another court, etc. As leaders of all criminal enquiries, judges also have to authorize police activities such as entering in a private building or intervening phone lines.
Outdoor activities. These may consist of hearing a victim in a hospital, carrying out a corpse removal (though this act may be currently delegated to the forensic doctor), personally supervising the proper register of a house or of any other kind of building, or sealing an area so that the police may carry out the search for pieces of evidence for some case. Since clerks of the court are also entitled to assist judges performing most of these activities, judges may delegate the supervision to them.
In conclusion, the wide range of activities a judge has to endure while on call may entail paying attention over a number of parallel issues (raised by the police, lawyers, public prosecution, etc.). Usually, the need for quick decisions—e.g., deciding whether to apply preventive detention to a detainee at 4 a.m. as a result of a fight in a bar—seriously handicaps (or impedes) reviewing case law or jurisprudence. Therefore at the best of times inexperienced judges have to rely on uncertain consultation with peers or senior judges (if available, which is not very likely at 4 a.m.).
Thus when on-call, their decision-making process is very likely to take place in a context of special ambiguity, in sharp contrast with other routine and rule-based decisions that bind most legal proceedings in ordinary judicial decision-making.
4.3 Survey Data
The source of our data is survey on Spanish judges that focused exclusively upon junior judges and designed to gather deep information on junior judges’ experiences during first appointments. The survey was carried out under the SEKT project18 with the aim to use the information gathered to build a decision-support system for junior judges (Casanovas et al. 2006; Casellas 2011; Vallbé et al. 2010).
The survey covers 34 of the 52 Spanish provinces in 11 autonomous communities (regions). Access to the professionals was subjected to usual official procedures, so that before going to courts the presidents of the Superior Court of Justice of each Autonomous Community—its highest judicial authority—were officially contacted to inform them about the characteristics of the study. Credentials from the Judicial School were also obtained so that interviewers could be accepted as members of an official research program.
The population of the survey was composed by the total number of judges in their first appointment from the 52nd class of the Spanish Judicial School. This was a batch of 243 judges who passed the oral and written examinations in 2000, entered the Judicial School in September of that year and graduated in 2002 after having spent six months in judicial units as training judges. They took office by 2002. Therefore, when the researchers visited and interviewed them in 2005 they had already spent almost 2 years in office, were ready to move to another place and, eventually, to promote in the judicial career.
Judges of the 52nd class had been sent to fill vacancies of Courts of First Instance and Magistrate scattered throughout Spain. The Judicial School provided the official list with the destination and contact data of each of them. To create a relevant sample, 150 judges were randomly selected among the official list, preserving in the sample the proportion of judges in each Autonomous Community that appeared in the actual population.
However, due mainly to the high volume of work at Spanish lower courts and to the availalbility of judges when they are on call, not all planned interviews could be carried out in the first round of interviews. Access to judicial professionals is limited by a number of official constrains. Besides, many judges to be interviewed were located in judicial districts with one single court. This means, for instance, that they are virtually always on call and thus the actual celebration of appointed interviews were conditioned by unexpected situations in court. These unexpected situations took place in some cases and some interviews could not be performed at the predetermined moment and place.
This implied, therefore, a further delay in carrying out the remaining interviews, which resulted in the fact that when they were to be resumed, all 52nd-class judges had already promoted to other courts and new official contacts had to be started in 2006. Since our interest was to preserve the same conditions for all interviewed judges as far as possible, at least 2 years were to be waited until judges with the same experience as the 52nd class ones could be interviewed. Besides, the geographical distribution imposed by the sample was to be preserved. Finally, all official requests were completed in 2008 and in the beginning of 2009 further interviews could be carried out.19 All judges were interviewed when they were at least in their second year in court.
The questionnaire contains mostly multiple choice questions. Apart from these, though, a number of open-ended questions were asked requiring the judges to give expanded answers on their main professional problems as well as to identify specific problems encountered during their 1st year as judges on criminal issues, civil issues, and on-call situations. Further explanation on these answers will be given in the next chapter.
4.4 Who Are Spanish Junior Judges?
4.4.1 Demographics
If we randomly picked a judge from the set of junior judges of the 52nd class of the Spanish Judicial School, it is very likely that we would come up with a young woman with no children. Figure 4.4 shows that although at the moment of the survey most of Spanish judges were men, women were already an overwhelming majority among young judges (younger than 40) in 2004 and outnumbered men at middle age in 2011. For the time in Spanish history, in 2013 there were more female than male judges.
Fig. 4.4
Evolution of the gender distribution among judges in Spain, 2005–2013
The average age at which our surveyed judges passed their examination was almost 30, with only 8 % of the sample having done so beyond 40. Once judges have passed their examinations they spend 1 year at the Spanish Judicial School, and another practical internship in a court guided by a senior judge, which means that the average judge will go at her first court being almost 32 years-old, over 8.5 years after obtaining their Law degree.
Although the years between Law graduation and their first appointment to court, which judges-to-be exclusively devote to prepare their examination, may have a toll on future judges’ social life, data show that it does not seem to affect their chances to form a family.
Table 4.2
Distribution of the sample by civil status and gender
Married | Single | Divorced | Partnership | Total | ||
|---|---|---|---|---|---|---|
Male | Number | 21 | 19 | 1 | 2 | 43 |
Percent | 48.84 | 44.19 | 2.32 | 4.65 | 100 | |
Female | Number | 39 | 33 | 1 | 1 | 74 |
Percent | 52.70 | 44.60 | 1.35 | 1.35 | 100 | |
Total | Number | 60 | 52 | 2 | 3 | 117 |
Percent | 51.28 | 44.44 | 1.71 | 2.57 | 100 | |
In this regard, Table 4.2 shows that half of junior judges are married, which is only 6 points behind the percentage of marriages among the Spanish general population at the time.20 Furthermore, no relevant difference is observed between males and females regarding civil status.
Table 4.3 gives us further information about judges’ personal life regarding their chances to build a family. Among all judges, 77 % do not have offspring and only a very small percentage have more than one child, none of them having more than three children. If we look only at those who are married (who concentrate almost all children), over half of them have no offspring whatsoever, and 25 % have one child.
Table 4.3
Number of children by civil status
Number of children | ||||||
|---|---|---|---|---|---|---|
0 | 1 | 2 | 3 | Total | ||
Married | Number | 34 | 15 | 9 | 2 | 60 |
Percent | 56.67 | 25.00 | 15.00 | 3.33 | 100 | |
Single | Number | 52 | 0 | 0 | 0 | 52 |
Percent | 100 | 0.00 | 0.00 | 0.00 | 100 | |
Divorced | Number | 1 | 1 | 0 | 0 | 2 |
Percent | 50.00 | 50.00 | 0.00 | 0.00 | 100 | |
Partnership | Number | 3 | 0 | 0 | 0 | 3 |
Percent | 100 | 0.00 | 0.00 | 0.00 | 100 | |
Total | Number | 90 | 16 | 9 | 2 | 117 |
Percent | 76.92 | 13.67 | 7.69 | 1.71 | 100 | |
4.4.2 Education and Professional Experience
Despite having obtained their Law degree in 37 different universities, our surveyed judges present a highly homogeneous educational profile. First and foremost, almost all the universities belong to the Spanish public system of higher education, which already sets a common educational ground.21 Furthermore, a significant proportion of junior judges (81 %) do not have further postgraduate studies (Table 4.4), and almost the same percentage have not practiced any other legal profession before becoming judges.
Table 4.4
Postgraduate studies and legal profession among junior judges
Yes | No | Total | ||
|---|---|---|---|---|
Postgraduate | Number | 22 | 96 | 118 |
Percent | 18.6 | 81.4 | 100 | |
Legal profession | Number | 21 | 97 | 118 |
Percent | 17.8 | 82.2 | 100 | |
Our data about junior judges’ recent educational and professional experience seems to be consistent with the results obtained by Ayuso et al. (2002). In effect, in that survey 81.1 % of junior judges declared not to have practiced any profession before being a judge, while this percentage decreased among senior judges (65.9 %). This would suggest that the preparation for the judicial examination not only impedes enrolling in postgraduate studies, but it also prevents a high percentage of judges to perform any other legal work before becoming a judge.