Constitutional Powers & Procedures: Unconstitutionality & Questioning in Spain
Skills: We rely on the arts. 161 EC and 21 OLCC. We must differentiate the Constitutional powers of attention to the roles assigned to them.
1. Competencias Aimed at Defending the Normative Supremacy of the Constitution
The Procedures for the Declaration of Unconstitutionality
Constitutional powers relating to the control of the laws or regulations with the force of law, from the State and the Autonomous Communities. This competition is manifested in their knowledge of constitutional challenges and the question of unconstitutionality.
A. Appeal of Unconstitutionality
The Constitutional jurisdiction to hear an appeal of unconstitutionality against laws and regulations having the force of law.
Features:
- It is a direct action aimed at determining whether a law or regulation is inconsistent with the Constitution, regardless of the judicial process.
- It is a legal remedy because it is not to assess the degree of political expediency of a rule or the accuracy of its content but of compliance with the Constitution.
- It’s a public resource because only individuals and public bodies are entitled to bring legitimacy of private unrecognized.
Purpose:
We present laws and regulations against the force of law.
Legitimacy:
The right to bring such an action is granted to the Prime Minister, the Ombudsman, 50 Deputies, 50 Senators, the Executive body of the Autonomous Communities, and the Assemblies themselves. It is not private but public legitimacy aimed at ensuring the supremacy of the Constitution.
Procedure:
- Deadline for the award: Within three months from the publication of the rule in any Official Gazette, either the State or region.
- This period may bring an action of unconstitutionality in the nine months against laws, regulations, or acts with force of law in relation to which, and to avoid proceedings, the following requirements are met:
- A meeting of the Bilateral Commission of Cooperation between the Central Government and the Autonomous Community concerned may request its call by any of the two administrations.
- That in the heart of that Bilateral Commission has adopted an agreement on launching negotiations to resolve the discrepancies may seek a modification of the regulatory text.
- That the agreement is made known to the Constitution by the aforementioned bodies within three months following the publication of the law.
- Ways: By application to the Constitutional Court, which must set out the circumstances of the persons or bodies exercising the action, specifically the law in whole or part, and to determine the constitutional provision means infringed.
- Admission + application: Does not collect the OLCC.
- Moving personación demand and parts: Declared admissible the application, the Constitution will transmit it to Congress and the Senate, through their Presidents, to the Government through the Ministry of Justice and the legislative and executive branches of the same for them to submit claims. There is a period of fifteen days.
- Judgement: The Court shall pass sentence in ten days, except that the Court considers necessary for a longer period not exceeding thirty days.
Effects:
- Preventive effects: The acceptance of a constitutional motion does not suspend the validity or application of the Act, except that the Government as provided under the EC art.161.2. In this case, the challenge will cause the suspension of the provision or decision appealed but the Court must either ratify or lift within a period not exceeding five months, unless previously been sentenced.
- Final Effects:
- Sentencias from estimates of the resource: Full-binding on all persons except where the failure is otherwise provided, shall remain in force of law in the part not affected by the unconstitutionality. When the sentence is declared unconstitutional, also declared the annulment of the contested provisions and if any, of those others of the same Act, provision or act with the force of law to be extended for connection or consequence. No sentence review proceedings closed by the force of res judicata in the application has been made laws, except in the case of criminal or administrative litigation relating to prosecution as a result of the invalidity of the rule applied, resulting in a reduction of penalty or sanction or exclusion, exemption or limitation of responsibility.
- Sentencias rejecting the appeal: Prevent any subsequent appeal on the matter either way.
B. The Question of Unconstitutionality
When a court finds that a standard law on whose validity depends on the fault, may be contrary to the Constitution, raise the issue with the Constitution.
Rationale and Purpose:
The merits of the question of unconstitutionality are clear, it is to reconcile the rejection of the monopoly laws contrary to the Constitution by the Constitutional Court and working with it for judges and courts. The purpose is to defend the Constitution and ensuring its supremacy against laws and regulations having the force of law provisions.
Object:
The question of constitutionality is raised against the laws and regulations with the force of law.
Features:
- It is an indirect process of constitutional review as a result of a previous trial when the judge believes that the rule applicable to the case to decide it may be unconstitutional.
- Specific control standards (German doctrine), its resolution depends on the ordinary judge’s ruling on the dispute that arises prior to submission.
- It is an alternative mechanism for use while on the same subject was brought before a constitutional challenge.
- It has a dynamic character because of the cooperation of ordinary judges.
- It can be a potentially subjective purpose because the parties in the previous trial may prompt the judge to present a constitutional question, the defense does not seek the objective of the Constitution but the guarantee of their own personal right.
Legitimacy:
Based solely on judges and courts, including those of military jurisdiction.
Procedure:
- Lack of time for filing the issue of unconstitutionality of the publication of the contested provision.
- Can be made ex officio or upon request.
- Must precede the presentation of the relevant issue of the trial court. The judge must give reasons in case you have to go to the Constitutional Court and justify to what extent the prior decision of the judicial process depends on the validity of the rule in question.
A) Asking the Question:
- Form: Judicial resolution to this effect should take the form of self.
- Requirements or background materials: Three conditions:
- That is a norma question.
- That this rule applies to the case.
- That the validity of this rule depends on failure.
- Formal or procedural requirements:
- Moment procedural presentation: You can only raise the issue once the proceedings are closed and the deadline for passing sentence, within three days following the hearing process prior previa.
- Hearing: Before taking the decision to raise the issue of unconstitutionality, the court shall hear the parties and the public attorney in the common and non-renewable term of ten days claim whatever they want on the relevance of raising the issue.
B) Processing in the Constitution:
- Admission Procedure: The Court may, by order and with the single hearing of the Attorney General, reject a question if they fail to meet the procedural conditions or is manifestly unfounded. This decision is motivated.
- Moving the issue and personación of stakeholders: The Constitutional Court shall transmit to Congress and the Senate, through their Presidents, the Attorney General, the Government through the Ministry of Justice. Who may attend and make submissions on the issue in common within a maximum period of fifteen days.
- Judgement: It must issue within fifteen days following the previous procedure.
Effects:
They are almost the same that occur in the case of the constitutional motion. In the case of judgments in constitutional matters, the Constitution shall immediately inform the competent court for the decision process.