Constitutional Guarantees of the Spanish Judiciary and PPO

Posted on Oct 17, 2025 in Law & Jurisprudence

Judges, Magistrates, and the Public Prosecutor’s Office

1. Constitutional Guarantees of Judges and Magistrates

A. Concept of Constitutional Guarantees

The Constitution provides a series of guarantees for judges and magistrates, distinct from those of other public officials, primarily to safeguard the correct exercise of jurisdictional power. These guarantees protect both the judges and magistrates themselves and the citizens.

Article 117.1 of the Spanish Constitution states: “Justice emanates from the people and is administered in the name of the King by judges and magistrates who are members of the judiciary, independent, irremovable, responsible and subject only to the rule of law.”

These protections apply to those exercising jurisdictional functions (including Constitutional Court Judges and Justices of Peace), but only when they are actively performing those functions.

The combination of Irremovability + Responsibility + Submission to the Law ensures Independence.

B. Judicial Independence

The guarantee of independence allows the judge or magistrate to exercise jurisdictional power with freedom of judgment, subject only to the Constitution and the rest of the legal system. This is the most important constitutional guarantee, differing from those afforded to other civil servants.

Independence must be respected by all and guaranteed against all (Art. 13 LOPJ), including:

  • Parties to a procedure.
  • Superiors of the judicial hierarchy and governing bodies of the Judiciary.
  • Powers of the State.
  • Social pressures (e.g., media).

The Public Prosecutor’s Office must also guarantee judicial independence in accordance with the Laws.

1. Independence Regarding Parties and Subject Matter (Impartiality)

Impartiality is the absence of any interest of the judge in the resolution of the conflict other than the strict application of the legal system. This has two perspectives:

  • Subjective: Impartiality with respect to the subjects involved in the procedure.
  • Objective: Impartiality with respect to the disputed subject matter.

Mechanisms to ensure impartiality:

  1. Abstention: The judge or magistrate, motu proprio (by their own decision), decides not to be part of the judicial proceeding.
  2. Recusation (Challenge): Judicial parties or the Public Prosecutor ask that the judge must not be part of the proceeding due to potential partiality.

Reasons for Abstention/Recusation (Art. 219 LOPJ) include:

  • Bond relationship with one of the parties.
  • Friendship or enmity with one of the parties.
  • Direct or indirect interest in the conflict, incompatibility, or supremacy (e.g., having been a legal representative of the parties).
2. Independence Regarding Superiors and Governing Bodies

This ensures independence from internal influences within the organization of the courts. Although judicial bodies are structured hierarchically (superiors can review decisions via the appeals system), each tribunal is independent.

Neither the Courts or Tribunals nor the governing bodies of the Judiciary may give orders, directives, instructions, or suggestions to their subordinates on the application of the legal system in the exercise of jurisdictional power (Art. 12.3 LOPJ). Violation constitutes a serious disciplinary measure.

A judge’s jurisdictional action can only be corrected through the system of appeals established by law (Art. 12.2 LOPJ).

Note: Independence applies only in the exercise of jurisdictional functions. It is possible to unify criteria and coordinate procedural practices of the various Sections of the same Chamber of a Court through the Jurisdictional Plenary (Art. 264 LOPJ). Non-Jurisdictional Plenary Agreements, which are not judicial acts, may also be adopted.

3. Independence Regarding Other Powers of the State and Social Pressures

The creation of the General Council of the Judiciary (CGPJ) and the regulation of the Statute of Judges and Magistrates by the LOPJ make it difficult for the other powers of the State to disturb judicial independence.

In today’s society, many judicial cases become media cases, leading to undoubted pressure, especially from the media and social media. Guarantee mechanisms against this pressure include:

  • Requirements for entry into the judicial career (merit and capacity).
  • Cases of incapacity or incompatibility (e.g., exercising commercial activities) for the exercise of the judicial function.
  • Prohibitions (e.g., belonging to political parties or trade unions).
  • Immunity of judges and magistrates of the Supreme Court for the prosecution of crimes committed in the exercise of their functions.

C. Irremovability

Article 117.2 CE establishes that judges and magistrates may not be dismissed, suspended, transferred, or retired except for any of the causes provided in the law.

Separation (Loss of Status):

Reasons for permanent loss of status:

  1. Loss of Spanish nationality.
  2. Disciplinary sanction for a very serious infringement.
  3. Conviction for an intentional crime resulting in a prison sentence of more than six months.
  4. Incapacity situations.
Suspension (Temporary Removal):

Temporary removal of the judge or magistrate from their duties, usually due to criminal responsibility or disciplinary measures.

  • Provisional: During the conduct of criminal or disciplinary proceedings.
  • Definitive: When it is imposed as a penalty in a final judgment or is decreed as a sanction for a very serious offense.
Transfer:

Forced transfer (not at the request of the judge or magistrate himself) due to a serious fault.

Retirement:

Reasons include permanent disability or reaching the mandatory age (70, or 72 years if requested by the judge or magistrate).

D. Responsibility

Each judge or magistrate is personally responsible for the acts or omissions carried out in the exercise of their office. This personal liability operates without prejudice to the responsibility of the State for the functioning of the Administration of Justice, which imposes compensation for damages caused by judges and magistrates in the exercise of their functions.

The liability they may incur when they do not perform their judicial office is governed by the rules and with the same effects as that required of the rest of the citizens (unless detention is involved).

Three types of personal liability of judges and magistrates:

  1. Criminal Liability (Arts. 405–410 LOPJ): For crimes committed in the exercise of their functions.
  2. Civil Liability (Art. 296 LOPJ): There is no direct civil liability for judges and magistrates. The injured parties may not direct their claims for damages directly against the specific judge or magistrate; they must do so against the State.
  3. Disciplinary Liability (Arts. 414–427 LOPJ): Internal control in administrative proceedings of the professional performance of judges and magistrates.
Disciplinary Infractions and Sanctions:

Infractions are classified as very serious, serious, and minor. The sanctions are:

  • Separation
  • Forced Removal
  • Suspension for Up to Three Years
  • Fine
  • Warning

Competency:

  • Very serious and serious misconduct: Handled by the Disciplinary Commission of the CGPJ.
  • Minor misconduct: Handled by the Governing Chambers to which the judge or magistrate depends.

E. Submission to the Law

Independence, understood as freedom of opinion of judges and magistrates in the exercise of jurisdictional power, has a limit: submission to the law, understood in a broad sense as the whole legal system. The judge or magistrate must limit the exercise of his or her jurisdictional function according to Law.

The submission of the judicial function to the legal system:

  • Legitimizes jurisdiction.
  • Guarantees the principle of equality.
  • Guarantees the principle of legal certainty.
  • Guarantees judicial independence.

F. Judicial Statute and Career

Judges and magistrates have a statute regulating the exercise of their functions and professional career, from access to retirement and any other professional issue.

Judges and magistrates form a single body, and the judicial career consists of three categories:

  • Supreme Court Magistrates
  • Magistrates
  • Judges
Requirements for the Judicial Career (Art. 302 LOPJ):
  • Be Spanish and of legal age.
  • Hold a Bachelor’s Degree in Law.
  • Not be involved in any of the causes of incapacity or incompatibility established by law.

Becoming a judge typically requires passing a public exam (common for judges and public prosecutors).

Exceptions to the Public Exam:
  • “Fourth Shift”: Jurists with more than ten years of professional practice, requiring a practical exam and professional interview.
  • “Fifth Round”: Jurists of recognized competence (more than 15 years of experience) can access:
    • The category of Supreme Court Magistrate (Art. 343 LOPJ).
    • The category of Magistrate of the Civil and Criminal Chamber of the Supreme Court (Art. 330.4 LOPJ).
Incapacity, Incompatibilities, and Prohibitions:
Incapacity (Art. 303 LOPJ):

Individuals who cannot be judges or magistrates:

  • Those who are physically or mentally unable to exercise the judicial function.
  • Those convicted of an intentional crime.
  • Those who are being prosecuted, investigated, or accused of an intentional crime.
  • Those who are not in full exercise of their civil rights.
Incompatibilities:
  • Art. 389 LOPJ: The performance of other positions, jobs, or professions, both public and private.
  • Arts. 391–393 LOPJ: Cases of incompatibility referring to the performance in the same court by persons linked to the judge by marriage or other situations of kinship (e.g., a judge cannot hold the position in a court where the spouse or other relative habitually practices as a lawyer).
Prohibitions (Limitations to guarantee impartiality):
  • Art. 127.1 CE: Judges and magistrates may not belong to political parties or trade unions (but they may belong to professional associations of judges and magistrates).
  • Art. 395 LOPJ: They cannot congratulate or censure public authorities, corporations, authorities, or officials.
Promotions and Training:

Promotions from judges to magistrates use two mechanisms: antiquity and selective tests or specialization.

The CGPJ must guarantee that judges and magistrates receive continuous, individualized, specialized, and high-quality training during their professional careers. This must include training courses on the principle of equality between women and men, gender perspective, and gender violence.

The Jury Institution:

Article 125 CE states: “Citizens may exercise popular action and participate in the Administration of Justice through the institution of the Jury.”

The Jury Court consists of a career magistrate (Presiding Magistrate) and nine citizens (who are subject to independence and impartiality requirements).

General requirements to be a member of the Jury:

  • Be Spanish and of legal age.
  • Be in full exercise of political rights.
  • Know how to read and write.
  • Be a resident of any municipality in the province in which the crime was committed.

2. The Public Prosecutor’s Office (PPO)

A. Concept and Nature

Article 124.1 CE defines the mission of the Public Prosecutor’s Office (PPO): “The Public Prosecutor’s Office has the mission of promoting the action of justice in defense of legality, the rights of citizens and the public interest protected by law, ex officio or at the request of the interested parties, as well as ensuring the independence of the Courts and seeking before them the satisfaction of the social interest.”

The PPO is regulated by Act 50/1981, on the Public Prosecutors’ Statute.

Key characteristics:

  • It is a State Organ.
  • It can be a party within the judicial process.
  • It is not part of the judicial power or the legislative power.
  • It is not an independent organism; it has an important link with the Government, which appoints the Attorney General of the State (the representative and head of the PPO).

Conclusion: The Public Prosecutor’s Office is an organ of the State that operates with functional autonomy.

B. Functions of the PPO

The PPO performs several critical functions:

  • Defense of Legality: To ensure that the judicial function is exercised in accordance with the laws.
  • Defense of Citizens’ Rights: Ensuring respect for fundamental rights (e.g., lodging appeals for amparo before the Constitutional Court).
  • Defense of the Public Interest and the Social Interest: To ensure compliance with judicial decisions that affect the public and social interest.
  • Safeguarding Judicial Independence: Exercise of actions in defense of judicial independence and promoting or intervening in conflicts of jurisdiction.

The most important function of the PPO is intervention in criminal proceedings in defense of legality, citizens’ rights, and the public interest.

In Adult Criminal Proceedings:
  • Receive complaints.
  • Ask for the adoption of precautionary measures (investigation is competence of Investigation Judges).
  • Ensure the protection of victims.
  • Bring criminal charges.
In Juvenile Criminal Proceedings:
  • Direction of the investigation.
  • Request precautionary measures and carry out investigative measures.

C. Organization and Functioning Principles

The PPO is governed by four principles (Art. 124.2 CE): organization (unity, hierarchical dependence) and functioning (legality and impartiality).

  1. Unity: The Public Prosecutor’s Office is unique for the entire State and acts with unity of criteria.
  2. Hierarchical Dependence: The PPO is hierarchically structured, headed by the Attorney General of the State. The rest of the organs are subordinate to him/her (this is the main difference from judges and magistrates).
    • The Attorney General of the State and the Chief Prosecutors issue orders and instructions to their subordinates, both general and related to specific cases.
    • Subordinate prosecutors must abide by the orders and instructions they receive.
  3. Legality: The PPO acts as a defender of legality, subject to the provisions of the Constitution, the laws, and the rest of the legal system.
  4. Impartiality: The PPO will act with full objectivity and independence in defense of the interests entrusted to him/her.

D. Prosecutor Statute

Admission to the Public Prosecutor career is typically via a public exam.

The status of Prosecutor is lost by:

  • Resignation.
  • Loss of Spanish nationality.
  • Disciplinary sanction.
  • Penalty of disqualification from public office.
  • Having incurred a cause of disability (incapacity).