Spanish Constitution of 1978: Structure, Principles, and Fundamental Rights

Posted on May 9, 2024 in Law & Jurisprudence

1. The Spanish Constitution of 1978: Structure and General Principles

Fundamental Rights and Duties

The Constitution is the supreme law of Spain, establishing the rights and duties of its citizens. It outlines the traditional division of powers into legislative, executive, and judicial branches, and organizes the institutions where these authorities reside: courts, government, and tribunals.

Spain’s constitutional history began in 1810 with the Cortes of Cádiz and the Constitution of 1812. Several iterations followed, leading to the current Constitution.

The process of drafting the 1978 Constitution began on October 31, 1978. It was approved by Congress and the Senate, and a constitutional referendum on December 6, 1978, resulted in 87.87% of votes in favor. The King’s sanction and promulgation followed on December 27, 1978, with official publication on December 29, 1978. The first amendment, concerning Article 13.2, occurred in 1992.

Characteristics of the Constitution

  • Not based on custom
  • Codified and entrenched
  • Consensual
  • Extensive (169 articles)
  • Directly applicable
  • Approved by referendum
  • Rigid and difficult to reform

Formal Structure

The Constitution begins with a preamble, outlining the motives and objectives of the document. It comprises 169 articles, four additional provisions, nine transitional provisions, a repeal provision, and a final provision.

The articles are grouped into 10 titles, including a preliminary title. Titles are further divided into chapters and sections.

The dogmatic part (Preliminary Title and Title I) defines general principles regarding the political structure and declares fundamental rights and freedoms.

The organic part (Titles II to X) defines the composition and functioning of public bodies, allocation of powers, and relationships between them.

General Principles (Preliminary Title)

  • Article 1:

    Spain is a social and democratic state of law. National sovereignty resides in the people, and the political form is a parliamentary monarchy.

  • Article 2:

    The Constitution is based on the indissoluble unity of the Spanish nation, while recognizing and guaranteeing the right to autonomy of the nationalities and regions.

  • Article 3:

    Castilian Spanish is the official language of the State. All Spaniards have the duty to know it and the right to use it. The other Spanish languages shall also be official in their respective Autonomous Communities.

  • Article 4:

    The flag of Spain consists of three horizontal stripes: red, yellow, and red. Each Autonomous Community may have its own flag.

  • Article 5:

    The capital of the State is Madrid.

  • Article 6:

    Political parties are the expression of political pluralism and contribute to the formation and expression of the will of the people.

  • Article 7:

    Trade unions and employers’ associations contribute to the defense and promotion of their respective economic and social interests.

  • Article 8:

    The Armed Forces, consisting of the Army, Navy, and Air Force, have the mission of guaranteeing the sovereignty and independence of Spain, defending its territorial integrity, and the constitutional order.

  • Article 9:

    Citizens and public authorities are subject to the Constitution and the rest of the legal system. The public authorities are responsible for promoting conditions that guarantee freedom and equality and removing obstacles that prevent their full enjoyment.

The Constitution guarantees the basic principles of the rule of law.

2. Fundamental Rights and Duties (Articles 10-55)

Fundamental rights and duties are categorized into three groups:

A. Civil Rights (Articles 11-13)

  • Nationality: Acquisition, loss, and dual citizenship
  • Rights of foreigners: Asylum, extradition, and voting in municipal elections
  • Age of majority: 18 years

B. Rights and Freedoms (Articles 14-38)

Section 1: Public Rights and Freedoms (Articles 15-29)

  • Right to life
  • Freedom of thought, religion, and worship
  • Right to liberty and security
  • Right to honor, personal and family privacy, and personal image
  • Freedom of movement and residence
  • Freedom of expression and information
  • Freedom of assembly and demonstration
  • Freedom of association
  • Right to participate in public affairs
  • Right to effective judicial protection
  • Principle of legality and non-retroactivity of criminal laws
  • Prohibition of courts of honor
  • Right to education and academic freedom
  • Right to form trade unions
  • Right to petition

Section 2: Rights and Duties of Citizens (Articles 30-38)

  • Right and duty to defend Spain
  • Duty to contribute to public expenditure
  • Right to marry
  • Right to private property and inheritance
  • Right and duty to work
  • Freedom of enterprise

C. Guiding Principles of Economic and Social Policy (Articles 39-52)

  • Protection of the family
  • Social and economic progress
  • Social security system
  • Access to culture
  • Environmental protection
  • Right to adequate housing
  • Youth participation
  • Protection of persons with disabilities
  • Consumer protection

D. Guarantees of Fundamental Rights and Freedoms (Articles 53-54)

  • Constitutional Court: Protection and control of fundamental rights through constitutional challenges
  • Amparo action: Protection of specific rights outlined in Section 1 of Chapter 2
  • Ombudsman: Oversees the activities of the administration

E. Suspension of Rights and Freedoms (Article 55)

  • State of emergency: Suspension of certain rights by government decree
  • State of siege: Suspension of certain rights by an absolute majority of Congress