Organization of the Judiciary & State Responsibility
The Organization of the Judiciary
Concept
Article 117.1 of the Spanish Constitution (EC) establishes that Judges and Magistrates are members of the judiciary, forming part of the Courts. Article 117.3 grants them the exclusive exercise of “judicial power.” However, Article 122 creates the General Council of the Judiciary (CGPJ), entrusted with the governance of Judges and all aspects of their legal status. Therefore, there are two types of organization within the Judiciary:
Jurisdictional Organization
The judiciary acts as a jurisdiction where actions ad extra are taken, “judging and executing judgments.” This is done through courts, tribunals, or courthouses, as established by the Organic Law of Judicial Power (LOPJ). Decisions are procedural steps, challengeable under the system defined for a specific procedural objective.
Governmental Organization
Beyond their judicial function, judges and magistrates are also officials, ultimately dependent on the CGPJ. This civil service relationship leads to “administrative acts,” where governing bodies exercise administrative, not judicial, power for “self-governance.”
Courts Not Integrated Within the Judiciary
Courts comprising the Judiciary are: Justice Courts, Courts of First Instance and Instruction, Criminal Courts, Courts of Violence Against Women, Commercial Courts, Administrative Litigation Courts, Social Courts, Juvenile and Prison Security Courts, Provincial Courts, High Courts of Justice, National Court, and Supreme Court. Only these courts, governed by the LOPJ and procedural laws, constitute the judiciary.
Other bodies, while exercising judicial power within their competence, are not governed by the Judicial Power. Their independence differs from that of Judges and Magistrates, and they often operate under different procedural laws. The EC legitimizes these courts; otherwise, they would constitute emergency courts, expressly forbidden by the EC. These non-integrated courts include special courts, special tribunals, and supranational courts. The concept of jurisdiction can be summarized as follows:
A) Special Jurisdictions
Article 117.5 of the EC provides for special jurisdictions, contrasting with the principle of jurisdictional unity. The Constitution only provides for military special jurisdiction.
B) Special Courts
These include the Constitutional Court, the Court of Auditors, and customary/traditional courts.
a) The Constitutional Court
Referred to in Title IX of the EC, it is the supreme interpreter of the EC, independent of other state branches. Its decisions are binding on all, including the judiciary.
b) The Court of Auditors
Dependent on Parliament, the EC empowers it to audit state and public sector accounts and financial management.
c) Customary and Traditional Courts
Examples include the “Tribunal de las Aguas de la Vega de Valencia” and the “Council of Good Men of Murcia.” Their independence derives from the moral authority (auctoritas) of their judges, leading to voluntary compliance with their “sentences,” primarily by farmers.
State Responsibility for the Operation of Justice
Article 121 of the EC states that “damage caused by judicial error, as well as that arising from irregularities in the administration of justice, shall give rise to compensation by the State, in accordance with the law.” State liability includes:
- A) Damage must originate from the judiciary, encompassing procedural acts by judges and courts, and actions by staff and associates.
- B) Damage must be effective, economically assessable, and individual, relating to a person or group.
- C) Attribution of responsibility must be due to judicial error, abnormal functioning of justice, or unlawful detention.
- E) Enforcement procedures differ:
Miscarriage of Justice:
- Exhaust all appeals against the adverse decision.
- Exercise action within three months from the day it could be exercised.
- Raise the request before the Board of the Supreme Court (TS) of the same order as the court causing the damage.
- Substantiate the claim through judicial review, hearing the Public Prosecutor and State Bar. If the TS finds an error, the claimant directs their claim against the Ministry of Justice.
Abnormal Processing:
- Appeal to the Ministry of Justice, following state liability rules (i.e., challenging the administrative act).
- Judicial review.