Spanish Constitutional Court: Structure, Powers, and Legal Framework

Posted on Dec 13, 2024 in Law & Jurisprudence

**The Spanish Model of Constitutional Justice**

The Constitutional Court (CC) is one of the most characteristic notes of the Spanish model, setting a standard for efficiency and fundamental judicial review. As a basic tool for such efficiency, a Constitutional Court was established, regulated in Title IX of the Constitution. The CC was born as one of the key pieces of the system of organization and distribution of power, and its primary function is to act as the “supreme interpreter of the Constitution” (Article 1 of the Organic Law of the Constitutional Court – OLCC). European Constitutional Law experienced significant development during the interwar period, as seen in the creation of constitutional courts in the Czech and Austrian constitutions of 1920, following the theories of Kelsen. This first model of constitutional justice is also seen, albeit with inaccuracies, in the Spanish Constitution of 1931, with the creation of the Tribunal de Garantías Constitucionales. Constitutional development continued with the Italian Constitution of 1947 and the Basic Law of Bonn (1949). At the time of writing the current Spanish Constitution, the system of concentrated constitutional justice was very consolidated.

The most important features of the Spanish model of constitutional justice are:

• The CC embodies a real jurisdiction, but by its nature and functions, it is not integrated within the judiciary.
• Jurisdictional means that the CC is independent and subject only to the Constitution and the Organic Law.
• The CC ensures that its decisions are subject to the law, counting only the Constitution as part of their trials.
• The CC is set directly by the Fundamental Standard.
• The CC is considered a constitutional body, part of the core configuration of the state.
• The CC may declare the unconstitutionality of rules with the force of law, unlike most European constitutional justice models inspired by the United States.

The CC is the only legitimate body to declare the unconstitutionality of regulations with the force of law. Although the supreme interpreter of the constitution, the CC is not the only body that should apply and interpret the Fundamental Standard. The Constitution binds all public authorities and citizens (Article 9.1). It must be assumed that all the courts, in their daily actions, apply and interpret the Constitution. The CC is the body responsible for unifying the interpretation given its supreme position in the constitutional order (Articles 123.1 of the Constitution and 1 of the OLCC).

In short, the breadth of skills available to the CC is emphasized. The function of interpreting the Constitution responds to various types of constitutional conflicts that may arise.

**The Constitutional Court: Composition**

The CC is a court and must exercise its powers independently. The nature of its function and the independence with which it must be fulfilled are the principles governing its composition, organization, and operation. Article 159 of the Constitution states that the CC is composed of 12 members. For their appointment, the Fundamental Law provides for the participation of the three branches of government, with emphasis on the legislature. The 12 judges are appointed by the King upon the proposal of the following bodies:

• 4 nominated by the Congress of Deputies.
• 4 by the Senate.
• 2 by the Government.
• 2 by the General Council of the Judiciary.

This structure might suggest that the composition of the CC is solely derived from the parliamentary majority. However, it also depends on the appointment of the 8 judges appointed by the Chambers, the composition of the Government, and the General Council of the Judiciary (CGPJ). Moreover, the 8 judges nominated by Parliament must be approved by a large qualified majority: 3/5 of the members of the respective Chamber. The mandate of the CC judges is 9 years, meaning that the election does not coincide with the legislatures, thus avoiding a link between the parliamentary majority and the composition of the CC. A third correction is introduced in the Constitution to guarantee the independence of the constitutional jurisdiction: the CC is not renewed globally. Although the mandate of the judges is nine years, the body is renewed by thirds every 3 years, with 4 members of the CC being renewed each time. For this purpose, it is considered that the judges appointed by Congress are 1/3, the 4 appointed by the Senate are another 1/3, and the 2 appointed by the Government, together with the 2 appointed by the CGPJ, constitute the final third. This configuration leads to the appointment of CC members with a large measure of consensus among the political forces.

The Constitution, besides trying to ensure the independence of the CC, does not leave absolute freedom to the constitutional bodies for selection. The Constitution requires three requirements to be a judge:

• Professional qualifications: to be a lawyer. The Constitution lists basic categories: judges, prosecutors, university professors, public officials, and lawyers.
• A minimum of seniority: 15 years of professional experience.
• The requirement of “recognized competence,” which can be difficult to prove.

The independence of the courts and their members, including the judges of the CC, depends not only on how they are appointed but also on how their status is set. The Constitution and the OLCC have worked to ensure the independence of judges through a set of rules similar to the status of members of the judiciary. These can be summarized as follows:

• The judges of the CC are subject to the principles of independence and tenure.
• They cannot be removed until the fulfillment of their 9-year mandate.
• Exceptions are incompatibility, incapacity, or due to specific criminal or civil liability.
• The judges of the CC are subject to a rigid system of incompatibilities, very similar to members of the judiciary, resulting in a ban on developing any other political or professional activity.
• An exception should be noted: members of the judiciary are prohibited from membership in political parties or unions, while members of the CC are not.
• The OLCC has excluded the possibility of immediate reelection to avoid any “commitments.”
• The maximum term of 9 years can be extended to a maximum of 3 years if a judge retires before having served 3 years.
• The judges cannot be prosecuted for opinions expressed in the exercise of their functions.
• They have special privileges regarding criminal responsibility, and only the Criminal Division of the Supreme Court can prosecute them.

**Organization**

The CC is composed of 12 members. The body is chaired by one of the judges, who is elected from among them every 3 years and appointed by the King, with the possibility of reelection. The election of the Chairman of the CC requires an absolute majority of votes in the first ballot; a simple majority suffices in the second. The president is responsible for convening and organizing meetings of the plenary, ordering the work of the Court, exercising its representation, holding the administrative headquarters, etc. There is also a Vice President, appointed in the same way as the president. The Vice President chairs one Chamber of the Tribunal.

For the exercise of its powers, the CC works in three ways: Sections, Chambers, or Plenary. The Plenary is responsible for resolving all issues within the jurisdiction of the Court, except for appeals, which can be resolved by the Chambers. There are two Chambers, each composed of 6 judges. The First Chamber is chaired by the President of the Court, and the Second by the Vice President. There is no specialization of the Chambers by subject matter, but simply an alternative distribution of issues. There are 4 Sections, each consisting of 3 judges, whose function is to decide on the admissibility of cases.

For the adoption of agreements in each of the organs of the Court, the presence of a 2/3 majority of its members is required. Decisions are taken by majority vote, with the President having a casting vote in case of a tie. Judges can express their disagreement with the majority by developing a dissenting opinion. The CC, for the performance of its duties, must have adequate staff and physical infrastructure. The Court has 3 Departments of Justice, occupied by the help of attorneys general and officers, auxiliaries, and agents. The judges have the support of a body of lawyers who assist them in their work, under the leadership of the Secretary-General, who directs the various departments of the Court.

**Powers of the Constitutional Court**

The CC has a broad range of powers, which can be summarized as follows:

• Control of the constitutionality of regulations with the force of law through constitutional complaints, constitutional issues, and prior checking of International Treaties (Articles 161.1a, 163, and 95 of the Constitution).
• Protection of rights and freedoms recognized in Articles 14 to 30 of the Constitution through the *amparo* appeal (Article 161.1b of the Constitution).
• Guarantee of the territorial distribution of power through conflicts of jurisdiction between the State and the Autonomous Communities, or among the Autonomous Communities themselves.
• Control of the constitutionality of provisions and resolutions of the organs of the Autonomous Communities, through challenges provided by Article 161.2 of the Constitution.
• Control of the distribution of powers between different branches of government over conflicts of powers between constitutional bodies.
• Guarantee of local autonomy through conflicts that may arise from the effect of rules with the force of law.

This list can be expanded, as Article 161.1d of the Constitution leaves this door open, through which two final powers were introduced: the conflict of authority and the conflict in defense of local autonomy. In addition, the CC has a wide range of organizational autonomy.