“The Council is created for two functions that are considered not to be in the hands of the Government: the appointment of judicial positions and the exercise of discipline, because the judge is controlled with the carrot and the stick.” In March 2014, just four months after taking office as president of the governing body of the judges, Carlos Lesmes stirred up the race with these statements in an interview in El Mundo. Three of the four judicial associations asked for a rectification and one of them for his resignation. Numerous boards of judges also demanded a public apology from him.
Eight years later —with Lesmes already out of the institution— his critics maintain that this metaphor has marked part of his mandate. And he has done it, in part, thanks to the reform that the Popular Party approved alone in 2013 and in whose elaboration he himself collaborated. That norm multiplied the power of the president while ending the majority of three fifths (13 of the 21 members) for the appointment of the main positions, including those of judges and presidents of the Supreme Court. It became a simple majority (more yeses than noes), which gave the conservative sector room to impose its candidates. This model was in force until the end of 2018, when the PSOE promoted another reform that recovered the reinforced majority.
In that period, the CGPJ made 32 appointments in the Supreme Court. Of them, 21 were approved by qualified majority, but a third (11 in total) came out by simple majority, which served the president to accommodate similar profiles in the High Court. Mainly, in the Contentious-Administrative Chamber (Third), where Lesmes will return “immediately”, according to what he said in his farewell video. It is a key Chamber, since it resolves all the appeals filed against the Government and those that affect the resolutions of the Judiciary. This is how, for example, Luis Díez Picazo was appointed president of that Chamber in July 2015, who later was the protagonist of the worst credibility crisis of the Lesmes mandate due to the change of criteria in the mortgage tax.
Lesmes had to apologize publicly after Díez Picazo submitted for review a jurisprudence that was detrimental to banking due to the “social and economic” impact that the conviction had caused. All the parties were on the side of the clients and the socialist government came to speak of a “very black day” for Justice. Díez Picazo came to that position with the votes of the Conservatives after a pressure campaign by Lesmes, according to some members. Both had worked together in the judicial reform of the PP. Díez Picazo prevailed over the then president, a magistrate who tripled his experience and far surpassed him in sentences handed down. He did not stand for re-election and his replacement was César Tolosa, the current president.
That plenary session on the mortgage tax went down in history as one of the most tense moments of the Third Chamber, with harsh reproaches for the management of the matter and private votes in which the dissenting magistrates did not hide their anger. The leadership of the president named with the approval of Lesmes was touched until the election of his substitute.
During the first years of Lesmes’ mandate, other figures very close to him landed in the Supreme Court —and with the minimum support of the plenary session. This is the case of Fernando Román, a personal friend of his for decades. He was Secretary of State for Justice in the Government of Mariano Rajoy and is considered a key man in his promotion to the CGPJ. Román was imposed as magistrate of the Third Chamber in January 2018 over candidates with more years of experience thanks to the support of the ten members elected at the proposal of the PP. Lesmes abstained in that vote because of his friendship with him, although his vote was not necessary. Román is associated with the conservative and majority Professional Association of the Judiciary (APM), to which Lesmes also belonged until he was appointed president.
In that period, José Luis Requero, considered very conservative, also joined the Third Chamber of the Supreme Court. He belongs to Opus Dei and was the magistrate who compared homosexual marriage to “the union of a man and an animal.” His arrival at the High Court in April 2014 opened a gap between the two sectors of the CGPJ, which had agreed to share the two vacancies that were at stake at that time. But the name proposed by the progressives (Ángel Arozamena) did not please Lesmes, who threatened Requero if they did not support another candidate. The progressives did not give in and the CGPJ ended up electing this judge by eleven votes, those of the members chosen at the proposal of the PP and Lesmes himself. Requero is also affiliated with the APM. Arozamena finally agreed to the High Court 15 months later.
With the support of only nine of the 21 members of the plenary, Dimitry Berberoff obtained a seat in the Third Chamber. Until his appointment in July 2018, he was director of the Technical Cabinet of the Supreme Court, where Lesmes placed him when he began his mandate. His mission was to assist the president—that is, Lesmes himself—and the rooms. His appointment was appealed by another of the magistrates who attended that position. By three votes to two, magistrates of that same Third Chamber endorsed his appointment. In a dissenting vote with that decision, two magistrates warned that discretionary appointments “delegitimize” the judicial system, according to infoLibre. Berberoff is currently vice president of the APM.
Since January 2014, Inés Huerta, considered to be very close to Lesmes, has also been part of that same room. In her case, she received the support of 16 members of the plenary. She is conservative although she is not attached to any association. She was the judge who in the Superior Court of Justice of Madrid protected the health privatization promoted by Ignacio González (PP) in the Community of Madrid and that another section of that same court had paralyzed.
Among the controversial appointments of the Lesmes stage at the head of the CGPJ is that of Ángel Hurtado, which took place in September 2020, when the body had been in office for more than a year and a half. He was promoted to the Criminal Chamber of the Supreme Court, which ultimately examines most of the criminal cases that are tried in Spain and through which corruption cases pass. Hurtado was the only judge of the Gürtel court who refused to allow Mariano Rajoy to be called as a witness and who issued a separate vote against the sentence that certified the existence of a B box in the PP requesting the acquittal of the party. His appointment was the result of an agreement between the conservative majority and part of the progressive bloc, and he received 19 votes.
In a much tighter vote, the former senator of the PP Vicente Magro was appointed judge of that same Criminal Chamber in January 2018. He received the support of the ten conservative members, while Lesmes voted for Javier Hernández, from Judges for Democracy. In fact, the appointment of Lesmes was propitiated by the rupture of the progressives, who divided their votes between two candidates. The sum of support around Hernández would have allowed him to avoid the conservative majority thanks to Lesmes’ vote. Finally, Hernández was promoted to the Supreme Court in September 2020.
Outside the High Court, Lesmes’ mandate also leaves some controversial appointments. This is the case of the now magistrate of the Concepción Espejel Constitutional Court. In 2017, she was elected president of the Criminal Chamber of the National High Court, also with the votes of the conservative vote. It is a very relevant chamber because it is in charge, for example, of prosecuting corruption cases that have been investigated in the special court and of resolving the appeals against the resolutions issued by its investigating judges.
Espejel is considered a magistrate close to the Popular Party to the point that she had to withdraw from several processes related to the corrupt Gürtel plot. It was in 2014 when María Dolores de Cospedal uttered the phrase that made her affinity with the magistrate clear: the former minister referred to her as “dear Concha” when she was awarded the Cross of San Raimundo de Peñafort, the highest decoration in the field of Law.
The link to the PP is unquestionable in the case of Fernando de Rosa, current senator of the party and who in 2015 was appointed by the CGPJ of Lesmes president of the Provincial Court of Valencia, the court that judges a large part of the corruption of the Valencian PP. He obtained, in his case, 16 of the 21 votes of the Plenary. He had previously been Secretary of Justice of the Generalitat Valenciana (2003-2007) and Minister (2007-2008) under the governments of Francisco Camps. De Rosa is one of the judges who has crossed the border between politics and the judiciary the most times, in a career that has always revolved around the PP.
