Constitutional Court of Spain

The Constitutional Court (Spanish: Tribunal Constitucional)^{[n. 1]} is the supreme interpreter of the Spanish Constitution, with the power to determine the constitutionality of acts and statutes made by any public body, central, regional, or local in Spain. It is defined in Part IX^[2] (sections 159 through 165) of the Constitution of Spain, and further governed by Organic Laws 2/1979 (Law of the Constitutional Court of 3 October 1979),^[3] 8/1984, 4/1985, 6/1988, 7/1999 and 1/2000.^[4] The Court is the "supreme interpreter"^[4] of the Constitution, but since the Court is not a part of the Spanish Judiciary,^[4] the Supreme Court is the highest court for all judicial matters.^[5]

Constitutional Court
Tribunal Constitucional
Headquarters of the Constitutional Court
Established	1978
Jurisdiction	Spain
Location	Madrid
Composition method	Appointed by the King after being nominated by the Parliament, the General Council of the Judiciary and the Government.
Authorised by	Spanish Constitution
Judge term length	9 years, non renewable
Number of positions	12
Annual budget	€ 28.42 million (2022)[1]
Website	www.tribunalconstitucional.es
President
Currently	Cándido Conde-Pumpido
Since	12 January 2023
Vice President
Currently	Inmaculada Montalbán Huertas
Since	12 January 2023

Powers

The Court was established along the lines of the Kelsenian model of constitutional justice, also called the European Model because it has been adopted by most European countries.^[6] Unlike the main alternative, the American model, the features of the Kelsenian model are that only a constitutional court is empowered to find that a statute is unconstitutional, secondly that of abstract review (that is without requiring legal cases but rather through application by public institutions), and thirdly, that appointments to the court are made largely by political bodies and have limited terms.^[7]

The Constitutional Court is authorized to rule on the constitutionality of laws, acts, or regulations set forth by the national or the regional parliaments.^[8] The Court has the power to settle conflicts of jurisdiction between the central and the regional governments.^[8] Because many of the constitutional provisions pertaining to autonomy questions are ambiguous and sometimes contradictory, it had been suggested from the outset that the Court would play a critical role in Spain's political and social development.^[8]

It also may rule on the constitutionality of international treaties before they are ratified, if requested to do so by the Government, the Congress of Deputies, or the Senate.^[8]

The abstract review request, that the court determine the constitutionality of a law, can be brought by the Prime Minister, the Ombudsman, fifty members of congress, fifty senators, the executive or parliaments of an Autonomous Community.^[9]

In addition, the Court has other powers not typical of the Kelsenian model including determining whether non-legislative acts by the central government, its branches, or the regional governments abide by the distribution of powers defined by the Constitution and other higher laws, hearing complaints from the public about their constitutional rights and preventive review (prior to promulgation) of statutes of autonomy of the regions.^[10]

Individual citizens may appeal to the Constitutional Court for protection against governmental acts that violate their "fundamental rights or freedoms".^[3][8] Only individuals directly affected can make this appeal, called a recurso de amparo, and they can do this only after exhausting judicial appeals.^[8]

The General Electoral Law of June 1985 additionally allows appeals to this court in cases where electoral boards exclude candidates from the ballot.^[3][11]

The decisions of the Constitutional Court cannot be appealed.^[3][12]

Composition

This court consists of twelve justices (Spanish: magistrados) who serve for nine-year terms. Four of these are nominated by the Congress of Deputies, four by the Senate, two by the executive branch of the government, and two by the General Council of the Judiciary.^[8][10] Having judges chosen by the three branches of government is unique but has not saved the Court from alleged politicisation or accusations of activism.^[13]

Justices are formally appointed by the King.^[3] The Constitution sets a minimum standard of fifteen years of experience in fields related to jurisprudence, including "magistrates and prosecutors, university professors, public officials and lawyers,"^[14] and must not contemporaneously hold a position that may detract from their independence, such as a post in a political party or a representative position.^[15]

Amongst and by the justices of the Court, a President is elected for a three-year term, who is assisted by a Vice President, who is also justice, and a secretary-general, that is the responsible for overseeing the staff of the court.^[3]

Current sitting Justices

The Constitutional Court consists of a president, currently Cándido Conde-Pumpido, the vice president, currently Inmaculada Montalbán Huertas and ten justices (who can be judges or jurists with relevant experience).

Magistrate / birthdate and place		Nominated by	Start date / length of service	Previous position or office (most recent prior to joining the Court)
	Ricardo Enríquez Sancho 1944 Madrid, Community of Madrid	Senate	March 19, 2014 10 years, 246 days	Magistrate of the Supreme Court (2004–2014)
	Cándido Conde-Pumpido September 22, 1949 La Coruña, Galicia	Senate	March 15, 2017 7 years, 250 days	Magistrate of the Supreme Court (2012–2017)
	María Luisa Balaguer Callejón 1953 Almería, Andalusia	Senate	March 15, 2017 7 years, 250 days	Professor of Constittuional Law at the University of Malaga (1999–2017) and Member of the Consultative Council of Andalusia (2005–2017)
	Juan Ramón Sáez Valcárcel June 23, 1957 Madrid, Community of Madrid	Congress of Deputies	November 18, 2021 3 years, 2 days	Magistrate of the Audiencia Nacional (2007–2021)
	Enrique Arnaldo Alcubilla 1957 Madrid, Community of Madrid	Congress of Deputies	November 18, 2021 3 years, 2 days	Clerk of the Cortes Generales (1986–2021)
	Concepción Espejel Jorquera September 15, 1959 Madrid, Community of Madrid	Congress of Deputies	November 18, 2021 3 years, 2 days	Chair of the Criminal Chamber of the Audiencia Nacional (2017–2021)
	Inmaculada Montalbán Huertas November 26, 1959 Iznalloz, Andalusia	Congress of Deputies	November 18, 2021 3 years, 2 days	Chair of the Administrative Chamber of the High Court of Justice of Andalusia, Ceuta and Melilla (2014–2021)
	Juan Carlos Campo Moreno October 17, 1961 Osuna, Andalusia	Government	January 9, 2023 1 year, 316 days	Magistrate of the Audiencia Nacional (2021–2023)
	Laura Díez Bueso 1969 Barcelona, Catalonia	Government	January 9, 2023 1 year, 316 days	Vicepresident of the Council for Statutory Guarantees of Catalonia (2022)
	María Luisa Segoviano Astaburuaga 1950 Valladolid, Castile and León	General Council of the Judiciary	January 9, 2023 1 year, 316 days	Chair of the Labour Chamber of the Supreme Court (2020–2022)
	César Tolosa Tribiño 1957 Santa María la Real de Nieva, Castile and León	General Council of the Judiciary	January 9, 2023 1 year, 316 days	Chair of the Administrative Chamber of the Supreme Court (2020–2022)
	José María Macías 1964 Barcelona, Catalonia	Senate	July 30, 2024 113 days	Member of the General Council of the Judiciary (2015–2024)

Emeritus Justices

Any previously appointed justice of the Constitutional Court becomes an emeritus justice (Spanish: magistrados eméritos) after their term of office.

Judicial Behaviour

Like many other features of Spanish democratic institutions developed during and after the transition, the design of the court reflects compromises between the reformists within the authoritarian regime and the leftist opposition seeking a rupture with that regime, particularly the Socialist Party (PSOE).^[16] Those rules have allowed the political actors to extend their influence through time in determining the composition of the court.^[17]

A number of empirical studies show that a non-irrelevant part of the variance judicial decisions is explained by partisan alignments and political context.^[17]

Other studies show that many of the court's rulings have been unanimous demonstrating that a lot of the work of the Court is broadly detached from any major partisan-political stakes.^[17]

Notable decisions

In 2005, the court ruled that the Spanish judicial system could handle cases concerning crimes against humanity, such as genocide, regardless of whether Spanish citizens were involved or directly affected.^[18] In this instance, it reversed the decision made by the Supreme Court in the same case, which held that such cases could be brought before Spanish courts only if a Spanish victim was involved.^[19]

In 2005, a challenge before the Court was presented denouncing the Same-sex Marriage Act of 2005 arguing that the Constitution says that «men and women have the right to marry with full legal equality» and this did not allow same-sex marriages. In 2012, after seven years of study, the Court ruled that the Constitution allows same-sex marriages because the social concept of marriage had evolved so the Constitution must to be interpreted according to the current cultural values.^[20][21]

A decision in 2010 declaring several articles of the Statute of Autonomy of Catalonia unconstitutional has been a source of much controversy and conflict since then, with some arguing that the judgement was illegitimate due to fact that one judge had died and had not been replaced and three other judges terms had expired three years prior to the judgement.^[22]

In 2017, the court ordered those responsible for the Catalan referendum on November 9, 2014 to pay 5 million euros.^[23] In addition, social agents from Spain have demanded that the distribution of public funds in the Catalan press should be audited.^[24]

In 2022 the Court upheld an amparo appeal by the People's Party claiming a violation of their rights to exercise representative office and of the right of citizens to participate in public affairs through those representatives, by legislation which would have made changes to the General Council of the Judiciary to break the Spanish General Council of the Judiciary blockade.^[25] The Court ordered that the bill to amend the laws should be suspended. This was the first time that the Constitutional Court had ordered the Parliament in this way. ^[26][27] Both the President of the Congress of Deputies Meritxell Batet and the President of the Senate Ander Gil, respected the decision of the Court,^[28] although they considered the decision a dangerous precedent since it meant that "the interruption of the legislative power is within the reach of a single deputy filing an appeal" which would prevent the "legitimate representatives of popular sovereignty" from "exercising their functions and debating or voting".^[29]

See also

• Austrian System
• Judiciary
• Rule of law
• Rule according to higher law

Notes

1. Spanish pronunciation: [tɾiβuˈnal konstituθjoˈnal]

References

1. "Constitutional Court Budget for 2022" (PDF).
2. wikisource:Spanish Constitution of 1978/Part IX.
3. Newton & Donaghy 1997.
4. Olga Cabrero. "A Guide to the Spanish Legal System". Law Library Resource Xchange, LLC. Archived from the original on April 21, 2016. Retrieved December 8, 2006.
5. Spanish Constitution 1978, article 123(1).
6. Ferreres Comella 2004, p. 461.
7. Garoupa & Magalhães 2020, p. 256,260.
8. Browning Seeley 1990, p. 221.
9. Spanish Constitution 1978, article 162(1a).
10. Garoupa & Magalhães 2020, p. 260.
11. "Organic Law of General Electoral Regime in Spain (1985, as amended 2016)". Legislation Online. OSCE Office for Democratic Institutions and Human Rights.
12. Spanish Constitution 1978, article 164(1).
13. Garoupa & Magalhães 2020, p. 259.
14. Spanish Constitution 1978, article 159(2).
15. Spanish Constitution 1978, article 159(4), 159(5).
16. Garoupa & Magalhães 2020, p. 261.
17. Garoupa & Magalhães 2020, p. 273.
18. "Guatemalan court to rule soon on Spanish request for arrest of ex-dictator". International Herald Tribune. December 6, 2006.
19. "Constitutional Court of Spain rules that its courts may hear genocide cases even if they do not involve Spanish citizens, and holds that principle of universal jurisdiction takes precedence over alleged national interests". International Law Update. 11 (10). October 2005.
20. "I·CONnect – The Spanish Constitutional Tribunal's Same-Sex Marriage Decision". www.iconnectblog.com. Retrieved October 26, 2018.
21. "Spain Constitutional Court rejects same-sex marriage challenge". www.jurist.org. Retrieved October 26, 2018.
22. "Claves de la renovación del Tribunal Constitucional" [The Keys to the Renewal of the Constitutional Court]. El Mundo (in Spanish). May 27, 2010.
23. "Spanish auditors demand Catalan leaders pay for previous independence vote". Reuters. September 5, 2017.
24. "181 millones para los medios en pleno proceso soberanista". El Mundo. September 8, 2014.
25. Jones, Sam (December 20, 2022). "Spanish PM vows to end 'unjustifiable' block on court changes". the Guardian. Guardian.
26. "Un TC dividido paraliza la tramitación en el Senado de la reforma que busca renovar el tribunal". Europa Press. December 19, 2022. Retrieved December 20, 2022.
27. "El Constitucional paraliza la reforma exprés del Gobierno para acelerar su renovación". theobjective.com (in Spanish). December 19, 2022. Retrieved December 20, 2022.
28. SER, Cadena (December 19, 2022). "Meritxell Batet y Ander Gil acatarán la decisión del TC, pero anuncian que presentarán alegaciones". cadena SER (in European Spanish). Retrieved December 20, 2022.
29. Digital, Redacción (December 19, 2022). "Batet acata la decisión del TC, pero se muestra crítica: "La interrupción está al alcance de un diputado"". COPE (in Spanish). Retrieved December 20, 2022.

External links

• Official website

Bibliography

• Browning Seeley, Jo Ann (1990). "Government and Politics". In Solsten, Eric; Meditz, Sandra W. (eds.). Spain: a country study (2 ed.). Washington, D.C.: Federal Research Division, Library of Congress. OCLC 44200005. This article incorporates text from this source, which is in the public domain.
• Ferreres Comella, Victor (July 1, 2004). "The European model of constitutional review of legislation: Toward decentralization?". International Journal of Constitutional Law. 2 (3). Oxford University Press: 461–491. doi:10.1093/icon/2.3.461. ISSN 1474-2640. OCLC 1124233270. Retrieved August 3, 2024.
• Garoupa, Nuno; Magalhães, Pedro C. (2020). "Judicial Politics: The Constitutional Court". In Muro, Diego; Lago, Ignacio (eds.). The Oxford Handbook of Spanish Politics. Oxford University Press. pp. 268–275. ISBN 978-0-19-882693-4.
• Newton, Michael T.; Donaghy, Peter J. (1997). Institutions of modern Spain : a political and economic guide. Cambridge University Press. ISBN 0-521-57348-3.
• "The Spanish Constitution" (PDF). Agencia Estatal Boletín Oficial del Estado. 1978. Retrieved August 3, 2024.

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