EurWORK European Observatory of Working Life

Debate on legality of judiciary strike

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In February 2009, about 40% of all court judges across Spain went on strike for the first time. The judges demanded a pay rise, better resources for courtrooms and the setting of workload limits. The action was condemned as illegal by the government and was the subject of much debate among citizens and local institutions. Debate centred on the right of judges to take strike action and the fact that overworked judges are making errors.

On 18 February 2009, about 40% of the 4,400 court judges in Spain went on strike for the first time to highlight their dissatisfaction over workload and working conditions. The Francisco de Vitoria Association of Judges and Magistrates (Asociación de Jueces y Magistrados Francisco de Vitoria, AJFV) and the Independent Judicial Forum (Foro judicial Independiente, FJI) called the industrial action. The action was condemned as illegal by the government, and was the subject of much debate among the public and local institutions.

Experts on constitutional law disagree on the legality of the strike. Officially, judges are excluded from the right to join trade unions, but they are not specifically excluded from the right to go on strike. Some experts say that the government or parliament going on strike would present the same scenario.

Reasons for strike action

Among the demands of judges are pay rises, new technologies for courtrooms and the establishment of maximum allowable workloads. They are also demanding the creation of 1,200 new positions over the next five years. Moreover, the judges are calling for the abandonment of a project aiming to transfer the judicial instruction to the public prosecutor’s office. Under the project in question, judges would lose some of their powers, and citizens would be investigated by a different body than the one who judges them at present.

It has been argued that some judges also have political motivations for their actions. One of the main causes of the protest has been a case involving Judge Rafael Tirado, who sits in Seville. In the case (in Spanish) in question, Mr Tirado failed to jail a convicted paedophile, Santiago del Valle, who then allegedly kidnapped and murdered five-year-old Mari Luz Cortes. The case caused outrage after the judge was fined just €1,500 for his error. Some of the striking judges claim that the Spanish government, which criticised the leniency of the fine, has done nothing to correct the underlying problems that caused the error. Strikers are calling for an increase in the number of judges from 10 to 20 per 100,000 people in the population. They are also calling for more investment in new technology.

Government considers strike unjustified

The 24-hour strike took place, despite talks between judges’ associations and the government. The Justice Minister at the time, Mariano Fernández Bermejo, argued that the strike called by the various judicial associations was unjustified within the framework of the Spanish judiciary, and announced a plan to reform the judicial process. Two weeks after the strike, however, the minister resigned.

Representation of judges

Some categories of workers do not have the right to join trade unions or face rigorous restrictions regarding that right. Judges, magistrates and prosecutors are not free to join the union of their choice. Most judges are associated mainly in four organisations. As already mentioned, AJFV and FJI called the industrial action. Two other judges’ associations have refused to join the protest and the issue has split the judiciary in Spain. A majority of the judges support the claims raised, but differ on the legitimacy of the right to strike and the call to strike. The President of the Superior Court in Madrid, Francisco Vieira, said the anger of the striking judges was ‘legitimate’ but called for ‘prudence’ among those taking action. The President of the Barcelona Audiencia (Court), Jose Luis Barrera, stated: ‘There is no right for judges to strike because they are an agency of the state. It is as if the cabinet were to go on strike.’ Similarly, according to the Progressive Prosecutors’ Union (Unión Progresista de Fiscales, UPF), resorting to strike action was an ‘inadequate’ and ‘disturbing’ way for judges to highlight their demands.

The General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ), the regulatory body for the judiciary in Spain, declared that there is no legal basis for or against the strike, nor for the council to intervene.

New plans to modernise judiciary

Another strike has been announced for June 2009, which it is estimated could raise much stronger support than the previous one. However, on 26 March, the new Minister of Justice, Francisco Caamaño, announced a plan (in Spanish) to spend €600 million over the next three years modernising the judiciary infrastructure, as well as proposing a Social Agreement for Justice. The announcement has received favourable comments from the social partners.

Commentary

One of the most important issues in this case is the legitimacy of strike action by those who administer justice. Judges represent a state power and, at the same time, have some similarities with senior government officials.

Esteban Villarejo, CIREM Foundation

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