Fundamental Rights and Judicial Protection under Constitutional Law

Posted on Oct 2, 2025 in Law

Fundamental Rights and Jurisdiction

1. Purpose of Jurisdiction

The purpose of jurisdiction can be understood through the following sequences:

  1. Entire possible sequence: substantive right, action, and application of jurisdiction.
  2. When the substantive right is not violated: substantive right.
  3. When the substantive right is violated: substantive right, action, and application of jurisdiction.

2. Article 24 of the Spanish Constitution (SC)

Judicial Protection (Article 24.1 SC)

All persons have the right to obtain effective protection from the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defense.

Due Process Guarantees (Article 24.2 SC)

Likewise, all persons have the right to:

  • The ordinary judge predetermined by law.
  • Defense and assistance by a lawyer.
  • Be informed of the charges brought against them.
  • A public trial without undue delays and with full guarantees.
  • The use of evidence appropriate to their defense.
  • Not to make self-incriminating statements.
  • Not to plead themselves guilty.
  • Be presumed innocent.

The law shall specify the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding allegedly criminal offenses.

General Features of Article 24 SC

Article 24:

  • Is part of the SC’s section on “Fundamental Rights and Duties.”
  • Is a substantive fundamental right by itself and can be subject to judicial protection.
  • Protects any legal right.
  • Belongs to any natural or legal person.
  • Derives from the prohibition of self-protection, the establishment of Judicial Power as a power of the state, and the state’s obligation to protect rights.

Content and Interpretation

The content includes the right to be part of the litigation, to promote jurisdictional action, and to get a judicial decision.

Constitutional Court Ruling 12/1981: “Effective” judicial protection does not mean the satisfaction of the demand, but the process conducted with constitutional procedural guarantees.

3. Components of Effective Judicial Protection

The right to effective judicial protection includes:

  1. Right to access to Courts.
  2. Right to a motivated judicial decision.
  3. Right to execution.
  4. Right to appeal.

1. Right to Access to Courts

Only conflicts based on legal provisions can be filed. Submissions can be made by natural or legal persons, Spanish or foreign. Legal requirements on submission must be accomplished. The validity of the claim does not depend on whether the person ultimately has a reason or not.

The Administration of Justice Official/Judge will examine the subject-matter and the basis of non-admission (Organic Law of the Judicial Power, Art. 11(3)): being against the law, lack of formal requirements that makes a process impossible, or lack of jurisdiction.

2. Right to a Motivated Decision

This right is echoed in Article 120.3 SC (Each judgment has to include reasoning). The judicial decision must be:

  • About the essence of the conflict.
  • Lawful: Motivated (containing elements that allow the choice of legal criteria, explaining “why?”).
  • Legally based.
  • Coherent: Consistency of the resolution with the postulates of the parties.

The decision does not necessarily mean the resolution of the conflict (judgment); it could also be non-admission of the claim due to lack of Spanish jurisdiction or formal requirements.

3. Right to Execution

Implementation of judgments ensures that they do not mean only a declaration. Forced execution of judgments is ensured.

4. Right to Use Established Appeal Mechanisms

This right differs by its nature from the initial access to the courts.

According to the Constitutional Court (164/2002), the appeal mechanism must be ensured as a part of the fundamental right of effective judicial protection only in criminal law.

In Criminal Law, an appeal is an obligatory guarantee, as International Law (UN Universal Declaration on Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms) establishes that a convicted person has a right to an effective appeal.

However, once an appeal mechanism is created in other branches of law, and a person faces improper obstacles to use it, this could be treated as a violation of the right to effective judicial protection.

4. Specific Due Process Guarantees

These guarantees are applied when the right to access to Courts is implemented and ensure minimum guarantees of the judicial process. Violation of any of the guarantees constitutes a violation of the right of jurisdiction (effective judicial protection).

1. Ordinary Judge Predetermined by Law

  • The court must be established by law previously to the case.
  • The court’s jurisdiction is predetermined by law.
  • The court is not special or exceptional (though it can be specialized).
  • The appointment of the judge to the case is based on pre-established, generally applicable rules.
  • Requires different judges for the investigation phase and trial (Constitutional Court 145/1988).

2. Defense and Assistance by a Lawyer

This is necessary to assure that all parties understand their position in the process and the process itself. Parties can elect a lawyer or have one appointed. In exceptional cases foreseen by law, a lawyer is not required. This right is assured for both parties in order to avoid inequality.

3. To Be Informed of the Charges

Without this guarantee, a person cannot prepare an effective defense. The charges must be announced in a language understandable to the accused.

4. Public Trial Without Undue Delays

This is repeated as an obligation for the Judicial Power in Article 120 of the SC:

  • “Judicial proceedings shall be public, with the exceptions contemplated in the laws on procedure.”
  • “Judgments shall always specify the grounds therefore, and they shall be delivered in a public hearing.”

According to the interpretation of the Constitutional Court, a public process must be without undue delay. Undue delay is not only a right but also an obligation for the parties.

The Constitutional Court establishes that there is no definitive definition of undue delay, and it depends on the features of every case.

5. Use of Evidence

A judge must ensure the proper development of this phase of the process. Requirements for evidence:

  • Legal
  • Pertinent
  • Reliable

6. Presumption of Innocence

A person is recognized as guilty only when his/her guilt is proven. The obligation to prove guilt is on the side of the accusation. The judge must be fully convinced by the evidence to find a person guilty and to condemn him. This principle is summarized by the maxim: In dubio pro reo (When in doubt, for the accused).

7. Non-Self-Incrimination

This is the right not to provide information that prejudices the accused. This protection applies to statements made:

  • By the accused.
  • By the members of his/her family or lawyer.

It does not apply to documentary evidence and expertise, e.g., alcohol or drug tests, or DNA samples.

5. Free Legal Aid (Right to Free Justice)

This right derives from the right to effective judicial protection (Art. 24 SC) and the right to defense (ensuring equal conditions for access to justice).

It is established in Article 119 of the SC:

Justice shall be free when thus provided for by law, and shall in any case be so in respect of those who have insufficient means to sue in court.

This is developed by Article 20 of the Organic Law of the Judicial Power (LOJP) and Act 1/1996 on Legal Aid.

Requirements for Granting Legal Aid

  1. Subject: Only those fulfilling the personal (economic and other) requirements set by law.
  2. Economic State of Play: Proof of economic circumstances confirming “insufficient means to act in process.”
  3. Own Interests: The benefit of free legal aid may only be recognized for those litigating in defense of their own rights or interests or legally representing such persons (e.g., minors, those with limited capacity).

Granting Legal Aid Procedures

Legal aid is granted by the Commissions of the Legal Aid, presided over by a member of the Prosecutor’s Office.

By general rule, it is granted for the whole trial, including appeals of the same proceeding and enforcement. In general, legal aid can be used only after the Commission decides to grant it.

Exception: When there is a need to assist a detainee or prisoner, as well as in cases of violence against women, free legal aid is granted from the very beginning of the need. If the Commission then decides that there is no basis for free legal aid, the person has to compensate for the provided legal assistance.