Fundamental Rights and Legal Entities in Spain: An In-Depth Look
Right to Life (Article 15 of the Spanish Constitution)
The right to life, as stated in Article 15 of the Spanish Constitution, means that one cannot attack the life of another person.
This implies that abortion is not a freely available practice (Article 417 bis of the Criminal Code, 1973). There are only three exceptions:
- Malformation of the fetus (within the first 22 weeks).
- Danger to the mother, either physical or psychological (no time limit is established).
- Rape (within the first 12 weeks).
Right to Die
Currently, the Criminal Code prohibits the right to die, meaning one cannot freely choose to end their own life (suicide). However, there is no criminal responsibility for suicide if the person is already deceased.
No article in the Criminal Code establishes a penalty for those who attempt suicide, provided they do it alone, without the help of another person.
Article 143 of the Criminal Code
- If a person induces another to commit suicide, they will be punished (with a prison sentence of 4 to 8 years).
- Cooperation in suicide (helping someone die without executing the act) is punishable by 2 to 5 years in prison.
- If assisted suicide reaches the point of executing the death, the penalty will be 6 to 10 years in prison.
Paragraph 4 of Article 143 establishes a mitigating circumstance for a person who causes the death of, or actively cooperates in the death of another, if there is an express and unequivocal petition from the victim, and if the victim suffers from a severe illness that would lead to death, or severe and permanent suffering that is difficult to endure. In such cases, the sentence can be reduced by one or two degrees.
Example: Penalty of 2 to 5 years:
- Reduced by 1 degree: 1 to 2 years.
- Reduced by 2 degrees: 6 months to 1 year.
If the sentence is less than 2 years, depending on the penalty, it may be possible to avoid prison, but the person will have a criminal record, leading to a suspension of the sentence.
Catalan Law (Law 21/2000)
Law 21/2000 of December 29, on the rights to information concerning health, patient autonomy, and clinical documentation, refers to the right of patient autonomy and the possibility of drafting a Living Will document.
Spanish Law (Law 41/2002)
Law 41/2002 of November 14, the basic law regulating patient autonomy and rights and obligations regarding clinical information and documentation, establishes the possibility for a person with a serious or terminal illness, who lacks the capacity to decide on their treatment, to specify in a document of advance directives what type of treatment they wish to receive.
Right to Physical Integrity (Articles 155 and 156 of the Criminal Code)
The right to physical integrity means the right not to be physically injured (the right that nobody can interfere with our body).
- Article 155 of the Criminal Code: When an injury is caused because a person has consented, but the consent is deemed invalid because it was not free, spontaneous, or deliberate, a penalty will still be imposed on the person who caused the injury (a reduced penalty).
- Article 156 of the Criminal Code: Consent is valid for organ transplants, sterilization, or transsexual surgery.
The final section of Article 156 discusses the sterilization of incapacitated individuals, requiring the involvement of the Public Prosecutor and two specialists.
Law 30/1979 on Organ Transplants
Law 30/1979 of October 27, on organ extraction and transplantation, outlines the conditions under which a person can be an organ donor and when extraction can proceed:
- Living donors: Transplantation can occur for therapeutic purposes, even if it poses a risk to the donor, provided that the donor has given written consent after being duly informed.
- Deceased donors: Any deceased person is considered a potential donor unless they have expressed opposition to being a donor. Three different doctors involved in the transplant or extraction must verify the death.
Article 18 of the Spanish Constitution
- Right to honor.
- Right to privacy.
- Right to image.
Right to Honor
The right to honor (reserved for both natural and legal persons) is the right not to be defamed or suffer a smear on one’s reputation.
Right to Privacy
The right to privacy (reserved only for natural persons) protects against interference in the private lives of others (e.g., telephone conversations, entering a home without permission).
As these are fundamental rights, they can only be overridden if a judge authorizes it.
Right to Image
The right to image (reserved only for natural persons) is the right not to have images of oneself captured without consent.
Organic Law 1/1982
Organic Law 1/1982, of May 5, on the protection of honor, personal and family privacy, and one’s own image, further defines these rights:
- Article 7 (privacy).
- Article 8 (image):
- Public persons: Images can be captured in public places.
- Private persons: Images can be captured when necessary to convey private information (e.g., during a news report).
While the right to honor is reserved for both individuals and legal persons, the right to image and privacy is reserved only for natural persons.
The Legal Person
A legal person is an entity created by a group of people or by law for a specific purpose. It becomes a legal entity when the law recognizes it as such.
Article 35 of the Civil Code (Types of Legal Persons)
- Corporations, associations, and foundations of public interest recognized by law. Their personality begins from the moment they are validly constituted, in accordance with the law.
- Associations of particular interest, whether civil, commercial, or industrial, to which the law grants their own personality, separate from that of each of the partners.
Public Law Corporations
These are created by law and serve the general interest. The administration assigns specific functions, preferring to create a corporation that forms part of the state organization. Examples: TV3, Catalunya Ràdio.
Associations
A group of three or more people creating an entity with a specific function and purpose, pursuing a social function without profit.
Foundations
Assets destined by one or more persons for a specific purpose, always non-profit. Example: Josep Carreras Foundation (leukemia).
Associations of Particular Interest
These are types of societies (associations, individuals) that seek profit or particular interest: civil, commercial, industrial, limited liability companies (SL), and public limited companies (SA).
Characteristics of Legal Persons
- Personality independent of the people who are part of or constituted it. Important economic responsibility.
- They have a legal capacity (from the moment they are created in accordance with the provisions of the law: formal requirements to be validly constituted) and a capacity to act independently of the people who are part of it.
- Differentiated individuals in their legal capacity, which is more limited.
- Individuals themselves do not have the legal capacity to act, but it is necessarily exercised through their representatives (without them, it could not be produced).
Types of Legal Persons
Creation
- Created by law (corporations).
- Created by individuals (partnerships, corporations, foundations).
Structure
- Formed by a group of people (companies and associations).
- Formed by a group of assets (foundations).
Purpose/Objective
- Public interest (corporations, associations, foundations).
- Special interest (companies).
Extinction of Legal Persons
Article 39 of the Civil Code
Legal persons are extinguished:
- When the deadline for which they were formed expires.
- When the purpose for which they were created has been fulfilled.
- When it is impossible to continue the function for which they were formed.
- By agreement of the parties (wills).
Article 39 of the Civil Code (Continued)
If, upon expiration of the period during which they were legally operating, or upon fulfillment of the purpose for which they were established, or if it becomes impossible to carry out their activities with the available resources, corporations, associations, and foundations cease to operate, their assets will be disposed of as provided by law, their statutes, or the foundational clauses. If nothing has been previously established, these assets may be used for similar purposes, in the interest of the region, province, or municipality that primarily benefited from the extinguished institutions.
What is Done with the Assets Once a Legal Person is Extinct?
The assets should be allocated to the destination provided in the statutes, the constitution, or the rule of law. If no such provision exists, an attempt should be made to allocate them to a similar purpose to that of the legal person.