Spain's Supreme Judicial Authorities

SPAINS SUPREME JUDICIAL AUTHORITIES

January 2013


Executive Summary

The purpose of this memorandum is to examine Spains supreme judicial authorities, public access to the supreme judicial authorities, and the role of the institutions in protecting individual rights. Spain has two supreme judicial authorities: the Supreme Court (Tribunal Suprema) and the Constitutional Court (Tribunal Constitucional). Two major pieces of legislation supplement Spains Constitution by providing the mechanics of how the judicial system operates: Organic Law 6/1985 (Ley Orgnica del Poder Judicial) and Organic Law 2/1979 (Ley Orgnica del Tribunal Constitucional).

Spains judiciary is comprised of a hierarchy of local and state courts that

hear a broad spectrum of matters, ranging from commercial disputes to civil grievances to criminal cases. Each succeeding level of courts has appellate authority to review the decisions of lower courts, with the Spanish Supreme Court at the head of the system. The Supreme Courts jurisdiction extends throughout Spain over all judicial matters, except those of constitutional guarantees.

Spains other supreme judicial authority is the Constitutional Court, an

independent body not considered to form part of the Spanish judiciary, which is solely responsible for upholding the Constitution. The Constitutional Court was created shortly after the Franco dictatorship with the aim to determine issues concerning the interpretation of the Constitution and protection of fundamental rights. The Constitutional Court has authority to hear appeals regarding the constitutionality of Spanish laws and policies, conflicts of authority between the central government and the Autonomous Communities (ACs), or among the latter themselves, and violations of the fundamental rights and liberties enshrined in the Constitution.

Together, the Supreme Court and the Constitutional Court provide

individuals access to redress against violations of their rights by private and public entities. Both courts are courts of final instance and generally require the applicant seeking redress to first proceed through levels of appeal before the lower courts. Such a system of appeal allows for efficiency in the legal system and uniform application of the law.

Spains Supreme Judicial Authorities January 2013

TABLE OF CONTENTS

Statement of Purpose 1 Introduction 1 Supreme Court (Tribunal Suprema) 2

Jurisdiction 3 Appellate Jurisdiction 3 Original Jurisdiction 4 Protection of Individual Rights 4

Constitutional Court (Tribunal Constitucional) 6

Jurisdiction 8 Questions of Constitutionality 9 Conflicts of Authority 11 Protection of Individual Rights 16

European Court of Human Rights (ECtHR) 21 Conclusion 22

Spains Supreme Judicial Authorities December 2012

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Statement of Purpose The purpose of this memorandum is to examine Spains supreme judicial

authorities, public access to the supreme judicial authorities, and the role of the institutions in protecting individual rights.

Introduction

A supreme judicial authority is the highest-level court of a state and is

generally the ultimate authority in resolving legal disputes and interpreting the law. These courts are tasked with synchronizing the interpretation and application of the law in order to avoid inconsistent judicial decisions. Supreme judicial authorities can also play an important role in protecting individual rights, by ensuring individuals access to redress against violations of their rights by private and public entities. Although Spains political power is devolved into seventeen Autonomous Communities (ACs), each with its own regional executive and legislative branches, AC governments do not have judicial power, and their courts are the courts of the central government.1 Spain has two supreme judicial authorities that have final authority in deciding cases: the Supreme Court (Tribunal Suprema) and Constitutional Court (Tribunal Constitucional).

Spains legal system is divided territorially into a hierarchy of courts, with

each level having the authority to review appeals from the courts below. These courts are further divided into five jurisdictions, such that separate systems exist for civil law, criminal law, administrative law, labor or social law, and the military.2 Each territorial unit has a particular type of court: municipal courts, district courts, and provincial courts.3 District courts are comprised of courts of first instance and enquiry, commercial courts, violence against women, criminal, contention-administrative, labor, juvenile, and penitentiary surveillance courts.4 Each AC has a High Court of Justice (Tribunal Superior de Justicia) that is the

1 Olga Cabrero, Features A Guide to the Spanish Legal System, LAW AND LIBRARY RESOURCE XCHANGE (Jan. 15, 2002), available at http://www.llrx.com/features/spain.htm#court. 2 Olga Cabrero, Features A Guide to the Spanish Legal System, LAW AND LIBRARY RESOURCE XCHANGE (Jan. 15, 2002), available at http://www.llrx.com/features/spain.htm#court. 3 Olga Cabrero, Features A Guide to the Spanish Legal System, LAW AND LIBRARY RESOURCE XCHANGE (Jan. 15, 2002), available at http://www.llrx.com/features/spain.htm#court. 4 Ley Orgnica del Poder Judicial. art. 26 (Spain, 1985), available at http://iccdb.webfactional.com/documents/implementations/pdf/Spain_-_Organic_Law_6-1985.pdf.


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supreme authority for certain subject matters within the AC.5 At the state level, the National Court (Audencia Nacional) has jurisdiction

over cases relating to more than one of the provinces; serious monetary and drug trafficking cases; serious crimes committed outside the country when, according to Spanish law and international treaties, Spanish courts have jurisdiction to prosecute them; the execution of European arrest warrants and requests for extradition; contentious administrative appeals; claims against collective agreements whose territorial scope is greater than the territory of an AC; and objections against senior magistrates of the National Court.6 The National Court has four chambers appellate, criminal, administrative, and labor and, like the Supreme Court, its jurisdiction extends over the entire territory of Spain.7 The Supreme Court has authority to review appeals from the National Court and the High Courts of Justice for any of the ACs.

Supreme Court (Tribunal Suprema)

The Supreme Court (Tribunal Suprema) is the highest court in Spain, as it is the sole judicial body with jurisdiction over the entire territory of the state and authority to try cases in all areas of law.8 The Cortes de Cadiz, a national legislative body that was convened during the Napoleonic Wars, created the Supreme Court in1812.9

Presently, the Supreme Court is comprised of seventy-four magistrates, each

assigned to one of five chambers of the Supreme Court: civil, criminal, administrative, social, and military.10 Each chamber has a president, and those five

5 Olga Cabrero, Features A Guide to the Spanish Legal System, LAW AND LIBRARY RESOURCE XCHANGE (Jan. 15, 2002), available at http://www.llrx.com/features/spain.htm#court. 6 Ley Orgnica del Poder Judicial. arts. 64-68 (Spain, 1985). In hearing objections against senior magistrates, the senior magistrates against whom the objection is made shall not form part of the Chamber. Ley Orgnica del Poder Judicial. arts. 68(2) (Spain, 1985). 7 Ley Orgnica del Poder Judicial. art. 64 (Spain, 1985); Olga Cabrero, Features A Guide to the Spanish Legal System, LAW AND LIBRARY RESOURCE XCHANGE (Jan. 15, 2002), available at http://www.llrx.com/features/spain.htm#court. 8 Poder Judicial Espana, What is the Supreme Court, GENERAL COUNCIL OF THE JUDICIARY, available at http://www.poderjudicial.es/cgpj/en/Judiciary/Supreme_Court/Institutional_information/What_is_the_Supreme_Court_. See also SPANISH CONST. art. 123 (Spain, 1978), available at http://www.lamoncloa.gob.es/IDIOMAS/9/Espana/LeyFundamental/index.htm. 9 Olga Cabrero and Vanessa Casado, Guide to Legal Research in Spain, NEW YORK UNIVERSITY (June 2011), available at http://www.nyulawglobal.org/Globalex/Spain1.htm; Ley Orgnica del Poder Judicial, art. 53 (Spain, 1985). 10 Ley Orgnica del Poder Judicial. art. 55 (Spain, 1985).


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presidents, along with a Chief Justice, chair the Supreme Court.11 While the King of Spain formally appoints the Chief Justice of the Supreme Court as well as its magistrates, the General Council of the Judiciary selects the nominees and presents them to the King.12 Magistrates hold their appointments for a life-term and cannot be removed without cause. Moreover, magistrates, like other Spanish judicial officers, are prohibited from membership in any political office or party.13

Jurisdiction The Supreme Courts appellate and original jurisdiction are enshrined in the

Spanish Constitution and Organic Law 6/1985 (Ley Orgnica del Poder Judicial) (LOPJ).14 Article 123 of the Spanish Constitution grants the Supreme Court jurisdiction as the highest judicial body in all branches of justice, except with regard to provisions concerning constitutional guarantees.15 This means that the Supreme Court has final judicial authority in all non-constitutional areas of law, including civil, criminal, administrative, social, and military law.16 Appellate Jurisdiction

As previously mentioned, the LOPJ organizes the Supreme Court into five chambers. Each chamber reviews appeals from the lower courts in its respective area of law. The civil chamber of the Supreme Court has authority to hear appeals from the lower courts on civil matters.17 The criminal chamber has authority to hear appeals from the lower courts on criminal matters.18 The contentious-administrative chamber has authority to hear appeals for judicial review of actions, resolutions and regulations made by the executive, legislative, and judicial bodies.19 The labor chamber has authority to review matters related to labor law and social issues, including social security and employment contracts cases.20 The military chamber is the highest judicial authority on military law.21

11 Ley Orgnica del Poder Judicial. art. 54 (Spain, 1985). 12 SPANISH CONST. art. 123(2) (Spain, 1978). The General Council of the Judiciary (Consejo General del Poder Judicial) consists of 20 members who are all proposed by the two chambers of Spains parliament. The General Council is chaired by a President who also serves as the President of the Supreme Court. 13 Ley Orgnica del Poder Judicial. art. 127(1) (Spain, 1985). 14 SPANISH CONST. art. 122(1) (Spain, 1978); Ley Orgnica del Poder Judicial. arts. 56-57 (Spain, 1985). 15 SPANISH CONST. art. 123(1) (Spain, 1978). 16 Olga Cabrero and Vanessa Casado, Guide to Legal Research in Spain, NEW YORK UNIVERSITY (June 2011). 17 Ley Orgnica del Poder Judicial. art. 56 (Spain, 1985). 18 Ley Orgnica del Poder Judicial. art. 57 (Spain, 1985). 19 Ley Orgnica del Poder Judicial. art. 58 (Spain, 1985). 20 Ley Orgnica del Poder Judicial. art. 59 (Spain, 1985). 21 Ley Orgnica del Poder Judicial. art. 55 (Spain, 1985).


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Original Jurisdiction In addition, the civil and criminal chambers of the Supreme Court have

original jurisdiction to hear certain cases in the first instance, such as actions against the Prime Minister and other high-level government officials and justices.22 In such instances, the Supreme Court may immediately try the case without first requiring the complainant to exhaust legal remedies in the lower courts through levels of appeal.

In 1994, in a case in the first instance, a member of the Regional Assembly

of Castilla-La Mancha was tried and found guilty by the Supreme Court for forging a private document.23 He was sentenced to two years imprisonment and fined one hundred thousand pesetas.24 Following his submission of a communication to the Human Rights Committee, however, the Committee held that Spain violated Article 14, paragraph 5 of the International Covenant on Civil and Political Rights, which provides the right to have a conviction and sentence reviewed by a higher tribunal.25 The Human Rights Committee ordered Spain to provide the claimant with an effective remedy, including adequate compensation.26

Protection of Individual Rights The Spanish Constitution gives all persons the right to obtain effective protection from the judges and courts in the exercise of their rights and legitimate interests.27 As such, the Supreme Court, as the final authority of appeal, plays a crucial role in the protection of individual rights. A party may take an ordinary appeal from a court of first instance to an intermediate appellate court, and finally to the Supreme Court.28 In addition, Organic Law 6/1985 gave Spanish courts jurisdiction over cases related to international concern, such as genocide, torture, and crimes against

22 Ley Orgnica del Poder Judicial. arts. 56-61 (Spain, 1985). 23 Jess Terrn v. Spain, Communication No. 1073/2002, U.N. Doc. CCPR/C/82/D/1073/2002 (2004), available at http://www1.umn.edu/humanrts/undocs/html/1073-2002.html. 24 Jess Terrn v. Spain, Communication No. 1073/2002, U.N. Doc. CCPR/C/82/D/1073/2002 (2004), available at http://www1.umn.edu/humanrts/undocs/html/1073-2002.html. 25 Jess Terrn v. Spain, Communication No. 1073/2002, U.N. Doc. CCPR/C/82/D/1073/2002 (2004), available at http://www1.umn.edu/humanrts/undocs/html/1073-2002.html; International Covenant on Civil and Political Rights, art. 14(5) (1966), available at http://www2.ohchr.org/english/law/ccpr.htm. 26 Jess Terrn v. Spain, Communication No. 1073/2002, U.N. Doc. CCPR/C/82/D/1073/2002 (2004), available at http://www1.umn.edu/humanrts/undocs/html/1073-2002.html. 27 SPANISH CONST. art. 24 (Spain, 1978). 28 Ordinary appeals vary in form depending on how they arise in the course of litigation (e.g., interlocutory relief, relief from judgment). They are governed by the Civil Procedure Law (Ley de Enjuiciamiento Civil) and the Code of Criminal Procedure (Ley de Enjuiciamiento Penal).


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humanity regardless of the nationality of the perpetrator or where the crime took place.29 Relying on what is commonly referred to as the principle of universal jurisdiction, the National Court has gained a reputation for human rights activism, serving as a forum for prosecutions against former heads of state for acts of genocide and crimes against humanity.30 In 1998, National Court Judge Baltasar Garzn issued arrest warrants against former Chilean dictator Augusto Pinochet and his counterparts in the Argentine military command, alleging they were responsible for genocide, torture, and terrorism.31 The arrest warrants launched extradition proceedings against Pinochet in London, and eventually contributed to legal proceedings against him in Chile.32

Because the Supreme Court acts as the final authority over appeals arising from the National Court, the Supreme Court is also in a position to protect individual rights in instances of international human rights violations. In December 2000, the Supreme Court exercised this authority by partially overturning a National Court decision dismissing a case brought by Spanish and Mayan citizens and non-governmental organizations (NGOs) against senior Guatemalan government officials charged with terrorism, genocide, and torture.33 In a temporary setback, the National Court dismissed the case because the plaintiffs had not sufficiently exhausted legal remedies in Guatemala.34 The Supreme Court, however, partially overturned the decision, allowing those cases that had close ties with Spain to proceed in the National Court.35 The Supreme Court decision thus allowed investigations for the torture and killing of Spanish citizens in Guatemala, but not the claims of Mayan plaintiffs.36 The Constitutional Court subsequently overturned the Supreme Court decision in September 2005, 29 Ley Orgnica del Poder Judicial. art. 23 (Spain, 1985); See also The Center for Justice and Accountability, The Spanish National Court, available at http://www.cja.org/article.php?id=342. 30 The Center for Justice and Accountability, The Spanish National Court, available at http://www.cja.org/article.php?id=342. 31 Naomi Roht-Arriaza, The Spanish Civil War, Amnesty, and the Trials of Judge Garzn, AMERICAN SOCIETY OF INTERNATIONAL LAW (July 25, 2012), available at http://www.asil.org/insights120725.cfm. 32 Naomi Roht-Arriaza, The Spanish Civil War, Amnesty, and the Trials of Judge Garzn, AMERICAN SOCIETY OF INTERNATIONAL LAW (July 25, 2012), available at http://www.asil.org/insights120725.cfm. 33 The Center for Justice & Accountability, The Guatemala Genocide Case, available at http://www.cja.org/article.php?list=type&type=83. The case was brought by Rigoberto Mench in 1999 for human rights violations committed against Guatemalas Mayan indigenous population and their supporter from the 1970s to the 1990s during Guatemalas civil war. Known as the Guatemala Case, the case is currently in the National Court before Judge Santiago Pedraz. 34 The Center for Justice & Accountability, The Guatemala Genocide Case, available at http://www.cja.org/article.php?list=type&type=83. 35 The Center for Justice & Accountability, The Guatemala Genocide Case, available at http://www.cja.org/article.php?list=type&type=83. 36 The Center for Justice & Accountability, The Guatemala Genocide Case, available at http://www.cja.org/article.php?list=type&type=83.


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thus allowing the full case to move forward in the National Court.37 The Constitutional Court argued that it was the intent of the legislators to make Spain a state that observes the principles of universal jurisdiction for certain especially egregious crimes regardless of nationality of victims.38

Spanish magistrates are currently pursuing more than a dozen international investigations into suspected cases of torture, genocide, and crimes against humanity, with cases involving Gaza, Tibet, and Guantanamo Bay.39 Recently however, the Spanish Government restricted the courts ability to hear such cases by narrowing the legal basis for the exercise of universal jurisdiction to those cases not already before another competent jurisdiction, and that involve Spanish victims, perpetrators located in Spain, or that effect Spanish interests.40 Constitutional Court (Tribunal Constitucional) The Constitutional Court (Tribunal Constitucional) was established in 1978 during Spains transition into a democratic government following General Francisco Francos dictatorship.41 The Constitutional Court was viewed as a mechanism to convince a legal and political class already influenced by the Franco dictatorship that the Constitution was a true legal standard and that the Constitutional Court was its main defender.42 The Constitution sets forth the role and powers of the Constitutional Court as clearly separate and independent from that of the general judicial authority.43 This structural separation between the Constitutional Court and the regular judicial authority supports the contention that the Constitutional Court not be left in the hands of the judicial authorities [who]

37 The Center for Justice & Accountability, The Guatemala Genocide Case, available at http://www.cja.org/article.php?list=type&type=83. 38 The Center for Justice & Accountability, The Guatemala Genocide Case, available at http://www.cja.org/article.php?list=type&type=83. 39 Soeren Kern, Spain Steps Back from Universal Jurisdiction, WORLD POLITICS REVIEW, available at http://www.worldpoliticsreview.com/articles/4018/spain-steps-back-from-universal-jurisdiction. 40 International Justice Resource Center, Domestic Exercise of Universal Jurisdiction (2012), available at http://ihrlaw.org/ihr-reading-room/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/. See also Center for Justice & Accountability, Spanish Congress Enacts Bill Restricting Spains Universal Jurisdiction Law, available at http://www.cja.org/article.php?id=740. 41 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 530 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 42 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 541 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 43 See SPANISH CONST. part IX (Spain, 1978); see also SPANISH CONST. part VI (Spain, 1978).


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had been educated in the legal dogmas of Francos regime.44

The Constitutional Court is comprised of twelve magistrates who serve nine-year terms of office.45 Terms expire for one third of the magistrates every three years with the aim of separating their selection process from legislative elections and, as a result, from political influences.46 Although the King of Spain retains the ultimate authority to appoint members of the Constitutional Court, other governmental bodies are responsible for selecting its members.47 The two chambers of the Spanish Parliament, the Congress of Deputies and the Senate, appoint four magistrates each.48 The executive appoints two additional magistrates, and the final two are appointed by the General Council of the Judiciary.49 As a result, the membership of the Constitutional Court reflects appointments from the executive, legislative, and judicial branches of government. This stands in contrast to the Supreme Court, whose membership consists solely of candidates selected by the General Council of the Judiciary.50

While in theory each candidate for appointment as a magistrate on the Constitutional Court requires a 60% majority vote from the respective legislative bodies, in practice the process works differently: the number of available positions are generally apportioned to various political parties based on each partys level of representation, and, as a result, the magistrates are immediately identified with the party that supported them.51 Unlike the regular judiciary, where magistrates cannot be members of any political party, magistrates on the Constitutional Court are only prevented from serving simultaneously in any political role with an executive function.52 Despite the Constitutional guarantee of independence,53 the

44 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 530-531 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 45 SPANISH CONST. art. 159(1) (Spain, 1978). 46 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 533 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 47 SPANISH CONST. art. 159(1) (Spain, 1978). 48 SPANISH CONST. art. 159(1) (Spain, 1978). 49 SPANISH CONST. art. 159.1 (Spain, 1978). 50 SPANISH CONST. art. 123.2 (Spain, 1978). 51 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 535-6 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr; Charles E. Ehrlich, Ethno-Cultural Minorities and Federal Constitutionalism: Is Spain Instructive?, 24 SOUTHERN ILLINOIS UNIVERSITY LAW JOURNAL 291, 314-15 (2000). 52 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 534 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 53 SPANISH CONST. art. 159(5) (Spain, 1978).


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Court is divided along clear political lines,54 and the magistrates are quickly labeled as conservative or progressive.55 As a result, neutrality is not expected, and magistrates are not considered divorced from political ideology.56 Moreover, some have criticized the Constitutional Courts system of appointing magistrates as biased in favor of the central government, as all designations are the responsibility of state bodies.57

The magistrates appointed to the Constitutional Court elect a president of the court by majority vote, with seniority deciding in the event of a tie.58 The president has the power to cast a tie-breaking vote in cases whether the court is evenly split. When the Constitutional Court hears appeals regarding the constitutionality of laws, it sits as a twelve-member panel.59 When it hears appeals by individual citizens for protection of fundamental rights, it sits as a six-magistrate panel.60

Jurisdiction

The Constitutional Court derives its authority from two sources: the Spanish Constitution and Organic Law 2/1979 (Ley Orgnica del Tribunal Constitucional) (LOTC).61 Part IX of the Constitution describes the membership criteria, jurisdiction, and method for disseminating judgments of the Constitutional Court.62 The LOTC provides further detail as to the scope of the Constitutional Courts jurisdiction63 and has been subsequently amended to expand the Courts

54 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 536 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 55 Sustainable Governance Indicators 2011, Appointment of Justices Spain, available at http://www.sgi-network.org/index.php?page=indicator_quali&indicator=S4_3. 56 Sustainable Governance Indicators 2011, Appointment of Justices Spain, available at http://www.sgi-network.org/index.php?page=indicator_quali&indicator=S4_3. 57 Antoni Abad i Nenet, Demagogy and Democratic Loyalty instead of Oligogy and Constitutional Patriotism, 4 VIENNA JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW 641, 646 (2010), available at http://www.internationalconstitutionallaw.net/download/219f0bf5e3399a6a3d280db325fb0d54/Ninet.pdf. 58 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 532 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 59 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 538 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 60 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 538 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 61 SPANISH CONST. arts. 159-165 (Spain, 1978); Ley Orgnica del Tribunal Constitucional (Spain, 1979), available at http://www.tribunalconstitucional.es/en/tribunal/normasreguladoras/Lists/NormasRegPDF/LOTC-en.pdf. 62 SPANISH CONST. arts. 159-165 (Spain, 1978). 63 Ley Orgnica del Tribunal Constitucional arts. 1-4 (Spain, 1979).


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jurisdiction over certain areas.64 Article 161 of the Constitution articulates the competences of the

Constitutional Court, providing the Court with the authority to hear appeals regarding the constitutionality of Spanish laws and policies, violations of the fundamental rights and liberties enshrined in the Constitution, and conflicts of authority between the central government and the Autonomous Communities (ACs), or among the latter themselves.65 Moreover, the LOTC grants the Constitutional Court authority to hear conflicts between the constitutional bodies of the central governments, as well as any conflicts in defense of local self-government.66

Questions of Constitutionality Resolving questions regarding the constitutionality of legislative acts and

policies is one of the primary responsibilities of the Constitutional Court.67 The Court has authority to review questions regarding the constitutionality of existing laws arising from the lower courts (cuestiones de inconstitucionalidad),68 as well as direct challenges to the constitutionality of new legislation (recursos de inconstitucionalidad).69

Questions regarding the constitutionality of existing laws can be referred to

the Constitutional Court by a judge, either independently or at the request of a party, whenever an action before the court raises the constitutionality of a law on whose application the case depends.70 If the judge determines that a referral to the Constitutional Court is not appropriate, the question of constitutionality may be raised again at successive stages of the proceedings or in higher courts until such time as a judgment not subject to appeal has been delivered.71 If the judge makes such a referral, the case is suspended while the specific constitutional issue is referred to the Constitutional Court for consideration.72 The Constitutional Court

64 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 541 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 65 SPANISH CONST. art. 161 (Spain, 1978). 66 Ley Orgnica del Tribunal Constitucional, arts. 31-34 (Spain, 1979). 67 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 540 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 68 SPANISH CONST. art. 163 (Spain, 1978); Ley Orgnica del Tribunal Constitucional art. 35 (Spain, 1979). 69 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 540 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 70 Ley Orgnica del Tribunal Constitucional art. 35(1) (Spain, 1979). 71 Ley Orgnica del Tribunal Constitucional art. 35(2) (Spain, 1979). 72 Ley Orgnica del Tribunal Constitucional art. 35(3) (Spain, 1979).


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has discretion to dismiss the question if it determines that the referral does not raise a significant issue.73

If the Constitutional Court accepts the referral, the parties have 15 days to appear before the court and 15 days thereafter to provide testimony and submit evidence.74 The court is required to give notice of the action to both houses of parliament, the Public Prosecutor, and the Ministry of Justice.75 If the challenged law was enacted by a regional government, the executive and legislative branches of that region must also be given notice.76 Any of the state actors that receive notice may appear and give testimony before the Constitutional Court.77 Upon completion of the testimony, the Court must issue a judgment within 15 days or, under extraordinary circumstances, within 30 days.78 Once a decision is rendered, it is transmitted to the lower court that referred the issue to the Constitutional Court so that the previous proceeding can be resumed.79

Challenges to the constitutionality of new legislation may only be brought

by political representatives, either from the state or the ACs, and the Defender of the People (Defensor del Pueblo).80 In addition, complaints must be filed within three months of the passage of the statute or commission of the act.81 This authority has been criticized as a mechanism to allow minority political factions to continue a legislative battle lost in parliament by asking the Court to overturn legislative decisions of the majority.82

Decisions made by the Court with regard to questions of constitutionality are

binding on all branches of the government from the day following their publication in the Official State Gazette, and no appeal may be brought against them.83 In rendering its decisions, the Court has the authority to strike any portion of a law

73 Ley Orgnica del Tribunal Constitucional art. 37(1) (Spain, 1979). 74 Ley Orgnica del Tribunal Constitucional art. 37(2) (Spain, 1979). 75 Ley Orgnica del Tribunal Constitucional art. 37(3) (Spain, 1979). 76 Ley Orgnica del Tribunal Constitucional art. 37(3) (Spain, 1979). 77 Ley Orgnica del Tribunal Constitucional art. 37(3) (Spain, 1979). 78 Ley Orgnica del Tribunal Constitucional art. 37(3) (Spain, 1979). 79 Ley Orgnica del Tribunal Constitucional art. 38(3) (Spain, 1979). 80 SPANISH CONST. art. 162(a) (Spain, 1978); Ley Orgnica del Tribunal Constitucional art. 32 (Spain, 1979). 81 Ley Orgnica del Tribunal Constitucional art. 33(1) (Spain, 1979). This three-month period can be extended under certain circumstances. 82 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 545-46 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 83 SPANISH CONST. art. 164(1) (Spain, 1978); see also Ley Orgnica del Tribunal Constitucional art. 38(1) (Spain, 1979).


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that it determines is incompatible with the Constitution.84 Such laws include those that are challenged by petitioners in questions of constitutionality, as well as laws that were not challenged at trial but that the Court determines must be struck down because of their logical connection to the challenged law.85

When the Constitutional Court strikes down a law, prior judicial decisions that relied on that law are not disturbed, except for any criminal or administrative case that resulted in a sanction against the defendant.86 In those criminal or administrative cases, if the Constitutional Courts nullification of the law at issue would result in a more lenient punishment or an exemption from responsibility for the defendant, the defendant can seek relief.87

Conflicts of Authority The Constitutional Court is also charged with deciding disputes among the

different organs of the state, such as conflicts of jurisdiction or powers between the central government and the Autonomous Communities (ACs) or among the ACs themselves, as well as other matters assigned to the Court by the Constitution or organic acts.88

As a decentralized state, the Courts role as arbiter of disputes concerning

jurisdiction or powers between the central government and the ACs is fundamental.89 Article 2 of the Constitution recognizes and guarantees the right of self-government of the nationalities and regions of which [Spain] is composed, while Article 137 provides ACs with the right to enjoy self-government for the management of their respective interests.90 Articles 148 and 149 designate the competencies of the ACs and the state, respectively.91 Moreover, each Autonomous Community is governed by its own Statute of Autonomy, which sets

84 Ley Orgnica del Tribunal Constitucional art. 39 (Spain, 1979). 85 Ley Orgnica del Tribunal Constitucional art. 39 (Spain, 1979). 86 Ley Orgnica del Tribunal Constitucional art. 40(1) (Spain, 1979). 87 Ley Orgnica del Tribunal Constitucional art. 40(1) (Spain, 1979). 88 SPANISH CONST. art. 161(1)(c-d) (Spain, 1978); See also Ley Orgnica del Tribunal Constitucional art. 59 (Spain, 1979). 89 Josep Ma Valles & Montserrat Cuchillo Foix, Decentralisation in Spain: A Review, 16 EUROPEAN JOURNAL OF POLITICAL RESEARCH 395, 399 (1998). 90 SPANISH CONST. arts. 2, 137 (Spain, 1978). 91 SPANISH CONST. arts. 148-149 (Spain, 1978). Of note, Article 149(3) provides: Matters not expressly assigned to the State by this Constitution may fall under the jurisdiction of the Self-governing Communities by virtue of their Statutes of Autonomy. Jurisdiction on matters not claimed by Statutes of Autonomy shall fall with the State, whose laws shall prevail, in case of conflict, over those of the Self-governing Communities regarding all matters in which exclusive jurisdiction has not been conferred upon the latter. State law shall in any case be suppletory of that of the Self-governing Communities.


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forth, in detail, the powers that such Autonomous Community possesses.92 The Statutes of Autonomy are comprised of individual agreements made between the central government and the ACs and are a significant reference point in the broader interpretation of the Constitution.93 The Statutes of Autonomy are second only to the Spanish Constitution in terms of the hierarchy of laws that are applicable in each AC.94

In the early years of the Spanish democracy, following the 1978 Constitution, the distribution of power between the central government and the ACs was the subject of national debate and of attention by the Constitutional Court.95 Far-right factions in the Spanish military attempted a coup dtat on February 23, 1981.96 The attempted coup, together with increased terrorist activity from the Basque separatist group ETA, aroused fears that the devolution of powers to Autonomous Communities had proceeded too rapidly.97 In response to these concerns, the ruling party and the major opposition parties reached an agreement to harmonize the process of devolving power to the ACs.98 That agreement was embodied in an organic law, the Ley Orgnica de Armonizacin del Proceso Autonmico (LOAPA).

Among the more controversial provisions in LOAPA was a diminution of

some of the powers that had already been granted to the ACs in various Statutes of Autonomy, and a requirement that the parliaments of the ACs seek approval from the central government for the laws they passed.99 In August 1983, the Constitutional Court declared fourteen of LOAPAs clauses to be unconstitutional.100 These fourteen were all provisions that related to the central governments ability to overturn AC laws and other power-reducing schemes that would weaken the ACs Statutes of Autonomy.101 This ruling by the Constitutional Court set forth two principles that govern the interaction between the central government and the ACs. First, the Court held that Statutes of

92 SPANISH CONST. art.149(3) (Spain, 1978); Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 543 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 93 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 543 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 94 Liam D. Anderson, FEDERAL SOLUTIONS TO ETHNIC PROBLEMS: ACCOMMODATING DIVERSITY, 193 (2012). 95 Robert Agranoff, Federal Evolution in Spain, 17 INTERNATIONAL POLITICAL SCIENCE REVIEW 385, 390 (1996). 96 Robert Agranoff, Federal Evolution in Spain, 17 INTERNATIONAL POLITICAL SCIENCE REVIEW 385, 390 (1996). 97 Robert Agranoff, Federal Evolution in Spain, 17 INTERNATIONAL POLITICAL SCIENCE REVIEW 385, 390 (1996). 98 Robert Agranoff, Federal Evolution in Spain, 17 INTERNATIONAL POLITICAL SCIENCE REVIEW 385, 390 (1996). 99 Robert Agranoff, Federal Evolution in Spain, 17 INTERNATIONAL POLITICAL SCIENCE REVIEW 385, 390 (1996). 100 Robert Agranoff, Federal Evolution in Spain, 17 INTERNATIONAL POLITICAL SCIENCE REVIEW 385, 390 (1996). 101 Robert Agranoff, Federal Evolution in Spain, 17 INTERNATIONAL POLITICAL SCIENCE REVIEW 385, 391 (1996).


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Autonomy were equivalent in importance to the constitutions of the ACs.102 As a practical matter, this holding prevents the central government from using regular legislative acts to modify the grants of power that have been made to the ACs.103 Second, the Court reasoned that autonomy means the possibility of taking the final decision in relation to a given function or in relation to a section or aspect of it.104 In other words, the central government has to respect the ACs self-rule with respect to the powers granted to them in the Statutes of Autonomy.105

In a later decision, the Constitutional Court reaffirmed this principle by limiting the ability of the central government to use the Harmonization Law, a power derived from the Constitution whereby the central government can pass laws binding on the ACs in order to harmonize the rule of law across Spain when the general interest requires, even in the case of matters over which jurisdiction has been vested to the [ACs].106 As a result of the Courts decision, the Harmonization Law may now be used only where no other appeal is possible, so as to prevent unnecessary intervention by the central government into areas of autonomous provincial authority.107 An absolute majority in both chambers of the Spanish Parliament is required to determine when such laws are necessary.108 One possible use of this power is to ensure compliance with international and EU obligations.109

This framework for division of power means that disputes between the central government and the ACs are treated as conflicts of competences, with the outcome dependent on which entity is competent to act based on its legal

102 Josep Ma Valles & Montserrat Cuchillo Foix, Decentralization in Spain: A Review, 16 EUROPEAN JOURNAL OF POLITICAL RESEARCH 395, 400 (1998). 103 Josep Ma Valles & Montserrat Cuchillo Foix, Decentralization in Spain: A Review, 16 EUROPEAN JOURNAL OF POLITICAL RESEARCH 395, 400 (1998). 104 Josep Ma Valles & Montserrat Cuchillo Foix, Decentralization in Spain: A Review, 16 EUROPEAN JOURNAL OF POLITICAL RESEARCH 395, 400 (1998). 105 Josep Ma Valles & Montserrat Cuchillo Foix, Decentralization in Spain: A Review, 16 EUROPEAN JOURNAL OF POLITICAL RESEARCH 395, 400 (1998). 106 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 554 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 106 SPANISH CONST. art. 150(3) (Spain, 1978). 107 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 554 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 108 SPANISH CONST. art. 150(3) (Spain, 1978). 109 Nikos Skoutaris, Comparing the Subnational Constitutional Space of the European Sub-State Entities in the Area of Foreign Affairs, 4 PERSPECTIVES ON FEDERALISM 239, 255 (2012), available at http://www.on-federalism.eu/attachments/142_download.pdf.


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jurisdiction.110 Notwithstanding this framework, disputes may still arise where an AC and the central government arguably share jurisdiction.

Where a conflict of competence does arise, the central government can lodge an appeal with the Constitutional Court.111 The AC at issue can also lodge an appeal if the central government refuses to stop the alleged encroachment on the ACs authority.112 As a practical matter, many ACs do not appeal issues to the Constitutional Court because they are controlled by the same political parties that control the state legislature and, therefore, a political resolution to the dispute can often be attained. However, the Basque and Catalan communities are traditionally ruled by their own nationalist parties, and, as a result, disputes between those ACs and the central government are more likely to lead to appeals to the Constitutional Court.113

A recent decision on the constitutionality of the Statute of Autonomy of Catalonia illustrates how the process works when the jurisdictions of the central government and an AC are unclear and a legal challenge results. Catalonia passed the Estatuto de Autonomia (Estatut, in Catalan) in 2006, replacing the Statute of Autonomy that had been in effect since 1979. The Estatut generated strong opposition from the Partido Popular, the leading opposition party in the state legislature, which immediately challenged its constitutionality.114

The Constitutional Court issued its decision on June 28, 2010.115 By a six-to-four majority, the Court abolished 14 articles in the Estatut that it determined were unconstitutional, and provided interpretations of a number of other articles.116 For present purposes, most notable was the Courts holding that it is the only body that can provide interpretations of the Constitution or determine the allocation of

110 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 551 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 111 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 551 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 112 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 551 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 113 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 551 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 114 Giacomo Delledonne, Speaking in Name of the Constituent Power: the Spanish Constitutional Court and the New Catalan Estatut, 3 PERSPECTIVES ON FEDERALISM 1, 4-5 (2011). 115 Giacomo Delledonne, Speaking in Name of the Constituent Power: the Spanish Constitutional Court and the New Catalan Estatut, 3 PERSPECTIVES ON FEDERALISM 1 (2011). 116 Giacomo Delledonne, Speaking in Name of the Constituent Power: the Spanish Constitutional Court and the New Catalan Estatut, 3 PERSPECTIVES ON FEDERALISM 1 (2011).


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legislative competencies between the central government and the ACs.117 Articles 110 to 112 of the Estatut were based on the idea that either the Spanish Constitution or the Estatut could grant legislative competencies, and that, in the absence of a clear grant, Catalonia could determine the extent of its own power.118 The Constitutional Court ruled that it, and not the Catalan government or the Estatut, has the final say on the division of competencies between the central government and ACs.119

The Courts resolution of this and other issues with respect to the Catalonian Statute of Autonomy has been the source of some controversy. The Courts judgment was returned more than four years after the referendum adopting the Estatut was held, and, as one commentator noted, in trying to reach a compromise between the central government and Catalonia, the Constitutional Court has perhaps invaded an area where political negotiations between institutional levels should hold sway.120 The Constitutional Court also plays a vital role in resolving jurisdictional issues that arise between the laws of Spain and the European Union (EU). In order to ensure harmony between Spain and its international obligations, Article 95(1) of the Constitution requires the passage of a constitutional amendment before an international treaty with provisions contradictory to the Constitution may be adopted.121 Article 95(2) provides that the Government or either House may request the Constitutional Court to declare whether or not such a contradiction exists.122 This source of jurisdiction became relevant during the debate over Spains accession to the EU.123 Certain international treaties that Spain entered into in relation to its EU accession contain the principle that EU law prevails over national law.124 In this context, there was a significant amount of discussion

117 Giacomo Delledonne, Speaking in Name of the Constituent Power: the Spanish Constitutional Court and the New Catalan Estatut, 3 PERSPECTIVES ON FEDERALISM 1, 6 (2011). 118 Organic Law 6/2006 on the Reform of the Statute of Autonomy of Catalonia, Article 110-12. 119 Giacomo Delledonne, Speaking in Name of the Constituent Power: the Spanish Constitutional Court and the New Catalan Estatut, 3 PERSPECTIVES ON FEDERALISM 1, 6 (2011). 120 Giacomo Delledonne, Speaking in Name of the Constituent Power: the Spanish Constitutional Court and the New Catalan Estatut, 3 PERSPECTIVES ON FEDERALISM 1, 12 (2011). 121 SPANISH CONST. art. 95(1) (Spain, 1978). 122 SPANISH CONST. art. 95(2) (Spain, 1978); See also Ley Orgnica del Tribunal Constitucional art. 78 (Spain, 1979). 123 Spain became a member of the European Union in 1986. See Treaty on Accession of Spain and Portugal, OFFICIAL JOURNAL L 302 (1985). 124 See Costa v. ENEL, 1964 E.C.R. 585.


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regarding whether EU law superseded Spains Constitution.125

Governmental actors invoked Article 95(2) of the Constitution to obtain two advisory opinions from the Constitutional Court. The first of these advisory opinions was issued in 1992, when the Court held that certain provisions of the Maastricht Treaty required a constitutional amendment to allow EU citizens resident in Spain the right to vote and to stand as candidates in municipal elections.126 This opinion led to the only amendment to the Constitution of 1978 to date.127 The second, more recent opinion from 2004 was in relation to Spains approval and ratification of the Treaty Establishing a Constitution for Europe (TCE). The TCE provides that [t]he Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.128 A majority of the Constitutional Court held, over three dissenting opinions, that this provision of the TCE was not in violation of the supremacy of the Spanish Constitution.129

Protection of Individual Rights The Constitutional Court is also responsible for reviewing individual appeals

challenging state acts that violate certain fundamental rights and liberties set forth in the Constitution (recursos de amparo).130 The recursos de amparo procedure is designed to provide exceptional and strengthened protection to a limited set of rights from violations by a limited set of actors.131

First, amparo actions can only be brought where the alleged violation is by a

state actor.132 For instance, violations arising from local, regional, or national executive and judicial bodies are actionable.133 In addition, individual appeals can 125 Gregory Marsden, Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World p. 221, SOOCHOW UNIVERSITY, KENNETH WANG SCHOOL OF LAW (Working Paper, 2007). See also Santiago Martnez-Lage, Por la primaca, desde luego no, EL PAS (Nov. 4, 2004). 126 DTC, July 1, 1992 (1/1992); 19 Revista de Instituciones Europeas 633-655 (1991). 127 Gregory Marsden, Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World p. 221, SOOCHOW UNIVERSITY, KENNETH WANG SCHOOL OF LAW (Working Paper, 2007). 128 Treaty Establishing a Constitution for Europe Article I(6) (2004), available at http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2004:310:SOM:en:HTML. 129 Gregory Marsden, Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World p. 222, SOOCHOW UNIVERSITY, KENNETH WANG SCHOOL OF LAW (Working Paper, 2007). 130 SPANISH CONST. arts. 53(2), 161(1)(b) (Spain, 1978); Ley Orgnica del Tribunal Constitucional art. 41 (Spain, 1979). 131 Luis Lopez Guerra, Constitutional Review and Democracy Constitutional Courts and the Legislative Process, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, 3-4 (JULY 15, 2003), available at http://www.venice.coe.int/docs/2003/CDL-JU(2003)024-e.pdf. 132 Ley Orgnica del Tribunal Constitucional art. 41(2) (Spain, 1979). 133 Luis Lopez Guerra, Constitutional Review and Democracy Constitutional Courts and the Legislative Process,


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be used to challenge specific acts of the legislature that allegedly violate fundamental rights.134 However, claims against the legislature for the enactment of a law alleged to be unconstitutional cannot be pursued through an amparo action.135 Of note, while Organic Law 2/1979 does not expressly provide for individual appeals to the Constitutional Court for violations of fundamental rights committed by individual citizens, the Court has held that if any public agency tolerates or affirms the violation of any of these rights on the part of an individual, it is assuming that violation as its own.136 This is known as indirect protection.137

Second, the Constitution sets forth a limited list of rights that may be invoked before the Constitutional Court.138 This list is enshrined in Articles 14 through 30 of the Constitution and includes those rights most closely linked with the individual dignity of the person, such as freedom of thought, religion, and expression, the right to security in ones domicile, equality, and the due process of law.139 Cases brought before the Court through recursos de amparo have included challenges regarding abortion, euthanasia, force-feeding of prisoners, limits on freedom of expression, and the scope of the freedom of religion.140

Finally, the Court only exercises jurisdiction once all other remedies in the

ordinary courts have been exhausted.141 In reality, therefore, it is the ordinary court judges who are entrusted with the day-to-day protection of fundamental

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, 4 (JULY 15, 2003), available at http://www.venice.coe.int/docs/2003/CDL-JU(2003)024-e.pdf. 134 Luis Lopez Guerra, Constitutional Review and Democracy Constitutional Courts and the Legislative Process, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, 4 (JULY 15, 2003), available at http://www.venice.coe.int/docs/2003/CDL-JU(2003)024-e.pdf. 135 Luis Lopez Guerra, Constitutional Review and Democracy Constitutional Courts and the Legislative Process, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, 4 (JULY 15, 2003), available at http://www.venice.coe.int/docs/2003/CDL-JU(2003)024-e.pdf. 136 Luis Lopez Guerra, Constitutional Review and Democracy Constitutional Courts and the Legislative Process, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, 5 (JULY 15, 2003), available at http://www.venice.coe.int/docs/2003/CDL-JU(2003)024-e.pdf. 137 Luis Lopez Guerra, Constitutional Review and Democracy Constitutional Courts and the Legislative Process, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, 5 (JULY 15, 2003), available at http://www.venice.coe.int/docs/2003/CDL-JU(2003)024-e.pdf. 138 SPANISH CONST. art. 53(2). 139 Ley Orgnica del Tribunal Constitucional art. 41(1) (Spain, 1979); SPANISH CONST. arts. 14-30. 140 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 548-49 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 141 SPANISH CONST. art. 43(3); See also Luis Lopez Guerra, Constitutional Review and Democracy Constitutional Courts and the Legislative Process, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, 5 (JULY 15, 2003), available at http://www.venice.coe.int/docs/2003/CDL-JU(2003)024-e.pdf.


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rights, while the role of the Constitutional Court is complementary in cases in which this protection has not proved adequate.142

Anyone whose fundamental rights have been allegedly infringed has standing to bring an amparo action. In addition, the Ombudsman and the Public Prosecutor can bring amparo actions on behalf of others.143 In the case of such third-party amparo claims, the court gives notice to all persons whose rights are affected, and it also prints a notice in an official journal for the purpose of notifying other persons who are possibly affected that they have a right to appear and participate in the appeal.144 In addition, those who benefitted from the allegedly infringing state action have the right to appear in the amparo action.145 The Public Prosecutor has a duty to appear as a separate party in all amparo actions in defense of legality, citizens rights, and the public interest protected by law.146

Amparo actions are designed to proceed swiftly. Once the Constitutional Court has accepted an amparo action, the state actor whose conduct is at issue must file responsive testimony within ten days.147 The Constitutional Court then has 20 days to hear evidence and consider the matter, after which it sets a date for deliberation and decision. The court is required to announce its decision within ten days from that date.148

The Constitutional Courts decisions generally address two topics: (1) whether the petitioners constitutional rights were violated and (2) the remedy through which the violation must be rectified.149 The Courts opinions contain descriptions of the constitutional rights that were violated, and the Court is empowered to nullify or reverse official acts in order to restore the petitioners rights and liberties.150 A judicial decision in an amparo action only controls the case in which it is rendered and generally cannot be used by non-parties who claim that their rights have been violated. However, if the panel that issued the decision

142 Luis Lopez Guerra, Constitutional Review and Democracy Constitutional Courts and the Legislative Process, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, 5 (JULY 15, 2003), available at http://www.venice.coe.int/docs/2003/CDL-JU(2003)024-e.pdf. 143 Ley Orgnica del Tribunal Constitucional art. 46 (Spain, 1979). 144 Ley Orgnica del Tribunal Constitucional art. 46(2) (Spain, 1979). 145 Ley Orgnica del Tribunal Constitucional art. 47(1) (Spain, 1979). 146 Ley Orgnica del Tribunal Constitucional art. 47(2) (Spain, 1979). 147 Ley Orgnica del Tribunal Constitucional art. 51 (Spain, 1979). 148 Ley Orgnica del Tribunal Constitucional art. 52 (Spain, 1979). 149 Ley Orgnica del Tribunal Constitucional art. 54 (Spain, 1979). 150 Ley Orgnica del Tribunal Constitucional art. 55(1) (Spain, 1979).


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determines that the law at issue violates fundamental constitutional principles, it can refer the matter to the full Constitutional Court according to the procedure for questions of constitutionality (cuestion de inconstitucionalidad), which is discussed more fully above.151

By 2007, the number of amparo actions before the Constitutional Court had multiplied to such an extent that they took up almost the entirety of the Courts time and resources.152 To address the resulting delays, the amparo process was substantially modified in 2007 through an amendment to Organic Law 2/1979. The 2007 amendment contained two provisions that limited the number of amparo actions that would be considered by the Constitutional Court. First, the Court was given the power to reject amparo actions that lacked substantial constitutional importance.153 Complaints now have to justify the special constitutional significance of the appeal,154 and, by law, the judges of the Constitutional Court panel can only permit an amparo appeal if the content of the appeal justifies a decision on the merits on the part of the Constitutional Court by virtue of its special constitutional significance, which shall be assessed in light of its importance for the interpretation of the Constitution, for the Constitutions application or general effectiveness, and for determining the content and extent of fundamental rights.155 The effect of this amendment has been to allow the members of the Constitutional Court to limit the number and types of amparo actions that the Court considers.

Second, the 2007 amendment limited the use of amparo actions against

actions or omissions of the judicial branch.156 Initially, many appeals to the Constitutional Court claimed violations of the rights granted under Article 24 of the Spanish Constitution: effective protection from the judges and the courts.157 As

151 Ley Orgnica del Tribunal Constitucional art. 55(2) (Spain, 1979). 152 See Ley Orgnica 6/2007 de 24 de mayo, por la que se modifica la Ley Orgnica 2/1979, de 3 de octubre del Tribunal Constitucional, English translation available at http://translate.google.com/translate?hl=en&sl=es&u=http://noticias.juridicas.com/base_datos/Admin/lo6-2007.html&prev=/search%3Fq%3DLey%2BOrg%25C3%25A1nica%2B6/2007%2Bde%2B24%2Bde%2Bmayo,%2Bpor%2Bla%2Bque%2Bse%2Bmodifica%2Bla%2BLey%2BOrg%25C3%25A1nica%2B2/1979,%2Bde%2B3%2Bde%2Boctubre%2Bdel%2BTribunal%2BConstitucional.%26hl%3Den%26client%3Dsafari%26tbo%3Dd%26rls%3Den&sa=X&ei=iIbkUMvMMePA0AGgrYGgDQ&ved=0CDgQ7gEwAA. 153 Ley Orgnica del Tribunal Constitucional arts. 49-50 (Spain, 1979). 154 Ley Orgnica del Tribunal Constitucional art. 49(1) (Spain, 1979). 155 Ley Orgnica del Tribunal Constitucional art. 50(1)(b) (Spain, 1979). 156 Ley Orgnica del Tribunal Constitucional art. 44 (Spain, 1979). 157 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 548 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr.


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a result, the Court became the place where judges' actions are corrected.158 Following the 2007 amendment, however, four mechanisms now limit such claims: (a) amparo actions can be filed only if the alleged actions or omissions immediately and directly violate one of the protected constitutional rights; (b) claimants must exhaust all other avenues of appeal; (c) the alleged violation of rights or liberties must be directly attributable to an action or omission of a judicial entity, and must not be the same as the underlying facts that gave rise to the suit in the first place; and (d) claimants must preserve their right to raise an amparo by immediately objecting in the judicial proceeding below.159

The Court receives thousands of appeals each year from individuals based on recursos de amparo, but far fewer are actually adjudicated.160 In 2011, the Constitutional Court accepted and ruled on an amparo appeal dealing with the fundamental rights of a public school religion teacher who was dismissed for contracting to marry a divorced man.161 The applicant alleged that the lower court judgments, which rejected the lawsuit on the grounds that the applicant had not been dismissed, but rather her contract had not been renewed, violated Article 24(1) (the right to effective judicial protection); Article 14 (the right not to suffer from discriminatory treatment because of personal circumstances); and Article 18(1) (the right to personal and family privacy).162 The Court found in the applicants favor, recognizing her rights not to suffer from discrimination on grounds of her personal circumstances (art. 14), ideological freedom (art. 16.1) in connection with the right to marry in a legally established way (art. 32), and personal and family privacy (art. 18.1).163 The Constitutional Court ordered the lower court to pass a new sentence, which it did declaring the applicants dismissal null and void and reinstating her with pay from the date of her dismissal.164 With fifteen similar requests pending, this case established the obligation of judges to provide effective judicial protection in the case of Catholic religion teachers, as well as the fact that

158 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 548 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 159 Ley Orgnica del Tribunal Constitucional art. 44(1) (Spain, 1979). 160 Enrique Guillen Lopez, Judicial Review in Spain: The Constitutional Court, 41 LOYOLA LOS ANGELES LAW REVIEW 529, 549-50 (2008), available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2616&context=llr. 161 European Network of Legal Experts in the Non-Discrimination Field, News Report, 1 (May 12, 2011), available at http://www.non-discrimination.net/content/media/ES-12-ES-2-Flash%20Report%20SPAIN%202011.pdf. 162 European Network of Legal Experts in the Non-Discrimination Field, News Report, 2 (May 12, 2011), available at http://www.non-discrimination.net/content/media/ES-12-ES-2-Flash%20Report%20SPAIN%202011.pdf. 163 European Network of Legal Experts in the Non-Discrimination Field, News Report, 3 (May 12, 2011), available at http://www.non-discrimination.net/content/media/ES-12-ES-2-Flash%20Report%20SPAIN%202011.pdf. 164 European Network of Legal Experts in the Non-Discrimination Field, News Report, 3 (May 12, 2011), available at http://www.non-discrimination.net/content/media/ES-12-ES-2-Flash%20Report%20SPAIN%202011.pdf.


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the civil marriage of a Catholic teacher is unrelated witheducational activity andtherefore, cannot be justification for a job layoff.165

European Court of Human Rights (ECtHR)

Spanish citizens may also seek redress for alleged human rights violations at

the European Court of Human Rights (ECtHR), where state actions in violation of the European Convention on Human Rights may be challenged.166 Although the primacy of the law of the European Union is an established principle,167 some states, including Germany, Spain, Italy, and Poland, have rejected its supremacy over state constitutional law.168 Nonetheless, as a Member State, Spain is required to observe EU law and interpret the Constitution in a manner open to international law.169

In 2011, the ECtHR delivered 103 judgments concerning Spain, 65 of which found at least one violation of the European Convention on Human Rights.170 In a noteworthy case in 2009, the ECtHR found that the Spanish National Social Security Institute discriminated against a Spanish Roma citizen by refusing to award her a survivors pension because she was married according to the communitys own rites and her marriage had not been registered in the Civil Register.171 The applicant first applied to the Spanish Labor Court, which held that 165 European Network of Legal Experts in the Non-Discrimination Field, Report on Measures to Combat Discrimination, 16 (Jan. 1, 2012), available at http://74.54.218.82/~migpolgr/public/docs/2011-ES-Country%20Report%20LN_final.pdf. 166 European Convention on Human Rights, art. 32 (1950), available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf. 167 Consolidated Version on the Treaty on European Union, art. 4(3) (2010), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:EN:PDF (requiring Member States to adopt appropriate measures to fulfill obligations arising out of the Treaty and refrain from any measure that would jeopardize the Unions goals). See also Judgment of the Court of Justice, Costa v. ENEL, Case 6/64 (15 July 1964) (holding that Member States are required to abide by the principle that Community law takes primacy over the states domestic laws). 168 Roman Kwiecie, The Primacy of European Union Law over National Law Under the Constitutional Treaty, 6 German Law Journal 1479, 1489 (2005), available at http://www.germanlawjournal.com/pdfs/Vol06No11/PDF_Vol_06_No_11_1479-1496_Special%20Issue_Kwiecien.pdf; see also Anneli Albi, Supremacy of EC Law in the New Member States, 3 EUROPEAN CONSTITUTIONAL LAW REVIEW, 25 (2007), available at http://kar.kent.ac.uk/424/1/Supremacy_30OCT07DP.pdf. 169 European Commission, Enforcing EU Law (June 19, 2012), available at http://ec.europa.eu/eu_law/infringements/infringements_en.htm; SPANISH CONST. art. 10(2). 170 European Court of Human Rights, Press County Profile Spain, 2 (July 2012), available at http://www.echr.coe.int/NR/rdonlyres/D8FE021F-1EAC-420A-9D24-A9159BC890F5/0/PCP_Spain_en.pdf. 171 European Court of Human Rights, Press County Profile Spain, 4 (July 2012), available at http://www.echr.coe.int/NR/rdonlyres/D8FE021F-1EAC-420A-9D24-A9159BC890F5/0/PCP_Spain_en.pdf;


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the National Social Security Institutes decision represented discriminatory treatment based on ethnic identity in violation of Article 14 of the Spanish Constitution.172 On appeal, however, the Madrid High Court of Justice quashed that judgment on the ground that the couple had not been married according to Spanish law.173 The applicant lodged an amparo action with the Spanish Constitutional Court, but it was dismissed because, according to the Court, the applicant had chosen not to get married in a statutory or other recognized form whilst being free to do so.174 In a six-to-one decision, the ECtHR found that there had been a violation of Article 14 of the European Convention on Human Rights (prohibition of discrimination), as well as Article 1 of Protocol No. 1 (protection of property), and ordered Spain to pay restitution to the applicant within three months.175

Conclusion

Spain has two supreme judicial authorities: the Supreme Court (Tribunal Suprema) and the Constitutional Court (Tribunal Constitucional). For the most part, the Supreme Court operates as an appellate court, but it also has original jurisdiction for extraordinary review of matters of great national importance. The Supreme Courts jurisdiction extends throughout Spain over all judicial matters, except those of constitutional guarantees. Spains other supreme judicial authority is the Constitutional Court, an independent body not considered to form part of the Spanish judiciary and solely responsible for upholding the Constitution. The Constitutional Court has authority to hear appeals regarding the constitutionality of Spanish laws and policies, and conflicts of authority between the central government and the Autonomous Communities (ACs), or among the latter themselves, and violations of the fundamental rights and liberties enshrined

European Court of Human Rights, Press Release Issued by the Registrar Munoz Diaz v. Spain (application no. 49151/07), 1 (2009), available at http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{"display":["1"],"dmdocnumber":["859383"]}. 172 European Court of Human Rights, Press Release Issued by the Registrar Munoz Diaz v. Spain (application no. 49151/07), 1 (2009), available at http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{"display":["1"],"dmdocnumber":["859383"]}. 173 European Court of Human Rights, Press Release Issued by the Registrar Munoz Diaz v. Spain (application no. 49151/07), 1 (2009), available at http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{"display":["1"],"dmdocnumber":["859383"]}. 174 European Court of Human Rights, Press Release Issued by the Registrar Munoz Diaz v. Spain (application no. 49151/07), 2 (2009), available at http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{"display":["1"],"dmdocnumber":["859383"]}. 175 European Court of Human Rights, Press Release Issued by the Registrar Munoz Diaz v. Spain (application no. 49151/07), 2 (2009), available at http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{"display":["1"],"dmdocnumber":["859383"]}.


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in the Constitution. With regard to the protection of individual rights, the Constitutional Court only exercises jurisdiction once all other remedies in the ordinary courts have been exhausted. Spanish citizens may also seek redress for alleged human rights violations at the European Court of Human Rights (ECtHR), where state actions in violation of the European Convention on Human Rights may be challenged.

Documents

Spain's Supreme Judicial Authorities