Incomplete reform in Spain

Santiago Casajus

On October 29, 2019, Carlos Lesmes Serrano, the Acting President of the Spanish Supreme Court and Acting President of the General Council of the Judiciary since December 4, 2018, presided over the opening of the judicial year for military jurisdiction in Spain.  In 2015, important legal reforms transformed military jurisdiction into an integral part of ordinary jurisdiction by means of the modification of the Organic Law of the Judiciary.  On October 15, 2015, the President of the Spanish Supreme Court, for the first time, presided over the opening of the judicial year for military jurisdiction.  The event on October 29, 2019, therefore, was the fifth such celebration and according to Lesmes, the custom had now become a consolidated tradition. 

In the opinion of Santiago Casajus, a Spanish military lawyer in the reserves, the reform of the military justice system in Spain is not yet complete.  He noted that the October 29th celebration demonstrated various things:

1. That military jurisdiction, expressly recognized in article 117 of the Spanish Constitution, is (still) distinct from ordinary jurisdiction, which already had its solemn opening of the judicial year in the presence of King Felipe VI.

2. That "jurisdictional unity", proclaimed as a constitutional precept, was done by a benchmark, -- the creation of a military chamber in the Spanish Supreme Court, without having an effect on the rest of the judicial bodies that comprise military jurisdiction.

3. The legislature failed to ensure real and effective jurisdictional unity by preserving military jurisdiction.

4. Under the rule of law, the function of judging and executing what has been judged is entrusted to a unique combination of independent and impartial judges and therefore, there is no room for other kinds of jurisdiction.

Casajus points out that the members of the military legal corps have not been integrated into the ordinary legal career pattern.  Their promotions, evaluations and classifications for promotion etc. are carried out by the Ministry of Defense.  

The members of military judicial bodies are part of a disciplined and hierarchical system whose independence is not guaranteed.  They live in the same quarters as their military commanders, whom they depend on for the normal development of their activities.  Someone who today is carrying out a jurisdictional function tomorrow can be called upon to be a legal adviser to a military commander, prosecutor in a military trial, or vice versa as is currently the case with members of the military legal corps.  Only when the military lawyer is completely separated from military administration and integrated into the ordinary legal system and judiciary will s/he have the requisite independence.