Spanish Constitutional Law: Judiciary, Regional Organization

Posted on Dec 13, 2024 in Law & Jurisprudence

Composition of the Courts

The composition of the courts is divided into two: the Congress and the Senate.

The Congress of Deputies

  • Minimum 300 and maximum of 400, the current number is 350.
  • Constituency: Is the province with the exception of Ceuta and Melilla, which are represented by one deputy each.
  • Distribution system of provincial seats: The constitution only states that the law will distribute the total number of deputies, assigning a minimum initial representation to each other constituency and distributing it in proportion to the population.

a) Each province will correspond to two deputies.

b) The 248 remaining members are distributed among the provinces in proportion to their population:

  • A share of division is obtained by dividing by 248 the total number of the legal population of the peninsular and island provinces.
  • As a result, seats are awarded by dividing.
  • The remaining deputies are distributed by assigning one to each of the provinces which have a higher decimal fraction.

c) Electoral system of allocation of escaños: The constitution only states that it has verified home constituency representation in response to claims of proportionality.

Senate

1. Number of Senators

  • Provincial: In each province, 4 Senators will be elected; in the island provinces, 3 to each. Ceuta and Melilla shall each elect 2 senators.
  • Autonomic Designation: The Autonomous Communities shall designate one senator and one more for every million inhabitants.

2. Constituency: It is provincial; autonomous senators are not elected but appointed.

3. Electoral system of allocation of seats: A majority system is established with minority representation.

Organization of the Regions

We note three deducted points:

  1. The organization of each Autonomous Community should be regulated in their respective autonomous status.
  2. The constitution has provided an organizational model to the full:
    • a) Legislative Assembly elected by universal suffrage ensures the representation of different parts of the territory and with legislative and oversight functions.
    • b) Governing Council with executive and administrative functions.
    • c) President elected among its members and appointed by the president and Rey. The board members are accountable to the assembly; the constitution states provides that a superior court ends the organization without prejudice to the jurisdiction that corresponds to the highest court.
  3. The constitution allows freedom of organization of the autonomous communities not limited to regulate its organization. It requires an organization to the full and not limited. Limited may lack the legislature, in which case it would be administrative.

Article 16: The Judiciary

Constitutional Characterization of the Jurisdiction

1. Unity: The principle of unity is the basis for the organization and functioning of the courts. In the old stratified society, there was a plurality of jurisdictions in parallel to existing rights and privileges as the division of social structure. Different jurisdictions are maintained formally disappear in Spain with the unification law jurisdictions. The rationale for this rule are:

  • a. The constitution refers to as reality unitary judiciary composed of judges and magistrates, which form a single body.
  • b. The same constitution provides for the exclusive competence of the judiciary.
  • c. Justice emanates from the people; Spanish people’s national sovereignty resides.
  • d. Said the picture was of the old regime characterized by a plurality of applicable jurisdictions in response to the social position of individuals. The general principle is that of unity; the constitution recognizes the existence of customary and traditional courts, is also leading the survival of the military jurisdiction. This present various aspects of interest:
  • Its scope, military and in cases of siege.
  • Its content, which reduces to criminal, civil and disciplinary contentious.

2. Independence: Justice was the king and the laws should apply to his will. The administration of justice degree was in respect of submission to political power, but with the emergence of the liberal regime, things changed. The powers are disengaged from the monarch.

  • a. External independence: Political power cannot get into the work of judges.
  • b. Internal independence: The need to protect the judge in his freedom of action.

3. Exclusive competence: The exercise of judicial authority lies with the courts prescribed by law. Judges and courts are the only ones that the state recognizes the legitimacy of resolving disputes, decided through the law applied by the judge.

4. Formal Exclusive: The approach of the judges is bounded, judges can do more than try and run the court because the constitution so permits.

5. Institutionalization: The judicial power lies with the courts prescribed by law. Banning and special courts of honor in the field of civil administration were reduced to only part of the armed forces.

Legal Status of Judges and Magistrates

The basic principles are:

  1. Tenure: They cannot be dismissed, suspended, transferred or retired for one of the causes and guarantees provided by law.
  2. Disclaimer: The judges are responsible, may be a criminal, civil or disciplinary.
    • a. Criminal: Issued for crimes or offenses committed in the exercise.
    • b. Civil: Damages caused.
    • c. Discipline: Mechanism for protecting society against possible judicial misconduct.
  3. Incompatibilities: Incompatible with any public activity or private employment, except for teaching law, and publications in accordance with the provisions of the rules on incompatibilities.
  4. Location: It declared an unpaid leave at the request of the judge or magistrate when appointed to political office or trust. Or when a candidate is presented to public officials, not to be elected within 30 days may continue on leave of absence or may re-enter.

The Administration of Justice in the Constitution

Reporting Principles

The basic principles are:

  1. Administration on behalf of the king: It is a parliamentary monarchy, the monarch’s role is that of the symbol with no operational capacity beyond vague references to its arbitration and moderation of the institutions.
  2. Gratuity: Justice shall be free, where provided by law and in any case, for those who have insufficient means to litigate.
  3. Advertising: Everyone is entitled to a public process, the advertising means that trials should be known beyond the circle of those present. It may hold closed hearings on matters of morality and aims to maintain the confidence of society in the courts.
  4. Orality: The procedure is oral.
  5. Repair of damage: Damages caused by judicial error will be generated to compensation from the state will pay.
  6. People’s Participation: Citizens may speak through the institution of the jury.

The General Judicial Council

The constitution contains the first, were outlined the scope of this new constitutional justification itself which is in the desire to ensure the highest level of independence of the judiciary. There are different aspects:

  1. Legal status: It is a constitutional body, empowers the council to raise constitutional conflicts of competence with the government, congress and the senate.
  2. Composition: It comprises the chief justice, who will chair and 20 members appointed by the king for a period of 5 years.
  3. Internal organs: The council is divided into the following organs:
    • a. Personal: President and Vice President.
    • b. Chartered: Full, standing committee, disciplinary committee and qualification.
  4. Powers: The power board is internal, and are reduced decision-making powers of the council to get outside their own regime of court clerks and staff serving the administration of justice.
  5. Internal functioning: As to the decisions of the board shall be adopted by a majority of members present, will always be motivated and documented by the Secretary and signed by whoever has chaired.

Article 18

Supplementary Clause

The constitution declares that state law will be residual right of the autonomous communities. This clause is two types of application, a necessary and a volunteer application:

  1. Application required: It is the ordinary course, it should go to the appropriate state rule to regulate the controversial case. State law is a more comprehensive law contains rules that give unity and coherence to the law. The supplementary occurs in materials that have been assumed by state government in its charter, otherwise has been understood that the adoption of regional regulations does not imply the repeal of the state, but only the shift in its implementation. He later amended the law so that it may issue a supplementary when all the statutes attributed to the autonomous jurisdiction over a matter such as exclusive.
  2. Voluntary: The rule applies where an autonomous community waiver issue a regulation that it should in exercise of its powers, creating a regulatory vacuum and invoking the application of state standards.

The Control Acts of the Autonomous Communities

Forms: They are a consequence of the supremacy of the principle of unity of the state.

  1. Regular Control:
    • a. Own powers: They are listed in the statutes of autonomy. It controls only the legality and constitutionality. The checks will be legislative, budgetary and administrative regulations.
    • b. Powers transferred or delegated by the state: Legislative assigned or transferred in accordance and managing director.
  2. Outstanding control: A control for exceptional situations. The government may take measures to compel compliance with those obligations or forced to protect the public interest.

The Inviolability

Deputies and Senators enjoy inviolability for the opinions expressed in the exercise of their functions.

  1. Concepts: Substantive guarantee excludes legal responsibility of deputies and senators for the opinions made in the exercise of their functions.
  2. Content: It is determined by the freedom of parliament and its lack of accountability. The constitutional court has ruled the above sentence for a narrowly so that only reaches to the conduct of its holder as a member of the college and not in his performances with political relevance.
  3. Time of protection: It is undefined if the constitution is silent on the matter. The regulations extend to even after leaving the office.

Immunity

  1. Concept: It is a guarantee of parliamentary defending their personal freedom against certain legal proceedings in criminal matters which only tend to separate him from office without complying with intent to repair damage.
  2. It is the desire to protect the parliamentarian of prosecutions brought against him. It is a special protection. Hence, its members may be arrested only if the offense, and can not be charged without the authorization of the respective chamber.
  3. Time of protection: During the period of his mandate. A problem arises, an article claims that it will be from the time of proclamation but it will not until you acquire. In the Senate it will not be available until they have improved their condition. You could say that all other guarantees will be operational from the moment of its proclamation.

The Issue of Trust

  1. Source: It is inspired by the fundamental law of Bonn and the French constitution of 1958.
  2. Purpose: Represents a means of parliamentary control over government, the initiative can take only the chief executive. It tries to force originally supported the maintenance of the camera to the prime minister because otherwise there would be a situation of political instability not resolved. Is a form of parliament, made clear its position.
  3. Standing: President recognizes only after deliberation by the cabinet meeting.
  4. Purpose: It can only arise on the agenda of the Prime Minister or on a general policy statement.
  5. Procedure:
    • a. Initiative: Only for the Prime Minister.
    • b. Reasoned written form presented to the conference table of Members certification of the cabinet.
  6. Parliamentary procedure:
    • a. Admission: The president shall report the same to the board of and convene the plenary speakers.
    • b. Discussion: We developed according to standards established for the investiture of the candidate for prime ministership, for the president.
    • c. Vote: After discussion, will be voted on the proposal.
    • d. Effects: If it gives confidence, the prime minister maintains that Congress originally received and the situation will not change. If denied the government’s resignation to the king, and then appoint a president.