Structure and Functions of the Spanish Constitutional Court

Posted on May 10, 2024 in Law & Jurisprudence

IV. Composition of the Constitutional Court

1. Number of Members

According to Article 159.1 of the Spanish Constitution (CE), the Constitutional Court is composed of twelve members. The even number allows for tie votes to be settled by the casting vote of the President. The President is appointed by the King from among the members of the Court, upon a proposal of the latter in full and for a term of three years (Article 160).

2. Appointment

Article 159.1 CE outlines four channels for appointment:

  1. Four members nominated by the Congress by a majority of three-fifths.
  2. Four members nominated by the Senate.
  3. Two members nominated by the Government.
  4. Two members nominated by the General Council of the Judiciary (CGPJ).

The appointment is formalized by the King. This system highlights several key points:

  • Emphasis on parliamentary appointment, ensuring greater participation of the people through their representatives.
  • Potential for bias due to the Government’s involvement in the appointment process.
  • Possible need for increased representation from the CGPJ to emphasize the legal nature of the Court.

3. Requirements

As per Article 159.2 CE, members of the Constitutional Court must be appointed from among magistrates, prosecutors, university professors, civil servants, and lawyers, all of whom must be jurists of recognized competence with at least fifteen years of professional experience in Spain (Article 18 of the Organic Law of the Constitutional Court – OLCC).

4. Term of Office

Members are appointed for a term of nine years and the Court is renewed by thirds every three years (Article 159.3 CE). The Ninth Transitional Provision of the Constitution states that three years after the first election, a group of four members of the same electoral origin will be chosen by lot to resign and be replaced. This means that after three years, there will be a renewal among the two groups not affected by the previous draw. The procedure for the renewal of members is outlined in Article 17 OLCC, which states that within four months prior to the expiry of appointments, the President of the Constitutional Court will request proposals for new magistrates from the chairpersons of the relevant bodies. The removal of judges is stipulated in Article 23.1 OLCC and can occur due to resignation, expiration of appointment, disability, incompatibility, failure to fulfill duties, violation of reserve function, civil liability for fraud, conviction of a felony or gross negligence, or death. Removal requires notification and a three-fourths majority vote of the full Court.

5. Legal Status

A. Duties

  • Swear or promise to uphold the Spanish Constitution, loyalty to the Crown, and fulfill their duties as judges (Article 21 OLCC).
  • Exercise their functions with fairness and dignity.

B. Privileges

  • Immunity from prosecution for opinions expressed in the exercise of their functions.
  • Fixed term and protection from dismissal or suspension except for reasons established by the OLCC.
  • Entitlement to transitional remuneration for one year after serving at least three years.
  • Criminal responsibility only before the Criminal Chamber of the Supreme Court.

C. Incompatibilities

Judges are prohibited from holding political or administrative positions, performing management functions in political parties or trade unions, engaging in judicial or prosecutorial careers, and undertaking any professional or commercial activity. Additional incompatibilities apply as per the Constitution and the Electoral Act (Article 70.1 CE).

V. Organization

1. Governing Bodies

A. President

The President is appointed by the members of the Constitutional Court in full for a term of three years, as per the Constitution (Article 160). Article 9 OLCC mandates a secret ballot in Parliament. An absolute majority is required on the first ballot; if not achieved, a simple majority suffices on the second ballot. In case of a tie, the most senior member is proposed, and if seniority is equal, the oldest member is chosen. The President may be re-elected once. The President’s powers include representing the Constitutional Court, convening and presiding over plenary sessions and Chambers, taking necessary steps for the functioning of the Court, communicating vacancies to the Chambers, Government, and CGPJ, exercising administrative jurisdiction over Court staff, and urging the Ministry of Justice to call for the filling of official positions (Article 15 OLCC). The President also presides over the First Chamber of the Court (Article 7.2 OLCC) and has organizational and disciplinary powers. In case of vacancy, absence, or illness, the President is replaced by the Vice-President, and if unavailable, by the senior judge or the oldest in case of a tie. The Presidency is assisted by the Technical Office, whose head is appointed by the President (Article 18.1 of the Rules of Procedure – ROP).

B. Vice-President

The Vice-President, not mentioned in the Constitution, is elected by the plenary of the Constitutional Court through the same procedure as the President, also for a term of three years (Article 9.4 OLCC). The Vice-President assists the President in certain situations and presides over the Second Chamber of the Court.

C. Governing Board

Created by the ROP, the Governing Board is composed of the President, Vice-President, two judges, and the Secretary General (with voice but no vote). The judges are appointed by Parliament, one from each chamber, and renewed annually in September. The Board assists the President in their duties and has functions as outlined in Article 21 ROP.

D. Secretary General

The Secretary General is elected by the plenary of the Constitutional Court and appointed by the President from among the lawyers of the Court for a term of three years. The Secretary General’s responsibilities, primarily administrative and financial, are outlined in Article 25 ROP. The Secretary General is supported by the Management, the Judicial Archives and General Register, the Service and Information of Constitutional Doctrine, and the Purchasing Board.

2. Working Bodies

According to Article 6.1 OLCC, the Constitutional Court acts either in Chambers or in plenary.

A. Plenary

Composition

The Plenary is composed of all the judges of the Court and is chaired by the President or, in their absence, by the Vice-President.

Convocation

The President convenes the Plenary on their own initiative or at the request of at least three judges. The convocation is made three days in advance unless urgency dictates otherwise.

Quorum and Validity of Agreements

The Plenary is validly constituted when all judges are present and agree unanimously. A previously convened plenary session can be anticipated. The Plenary can adopt resolutions when at least two-thirds of the members are present.

Competencies

Article 10 OLCC outlines the Plenary’s competencies, which coincide with those of the Court except for habeas corpus cases, which are attributed to the Chambers. However, the Plenary can withdraw a case from a Chamber at any point if it deems it appropriate to establish precedent in constitutional doctrine. The Plenary’s competencies can be classified as follows:

1) Judicial Nature
  • Knowledge of appeals and questions of unconstitutionality.
  • Knowledge of conflicts of jurisdiction between the State and Autonomous Communities or between the latter.
  • Knowledge of challenges by the Government against provisions and resolutions adopted by organs of the Autonomous Communities.
2) Organizational Nature
  • Election of the President, Vice-President, and Secretary General.
  • Verification of compliance with requirements for the appointment of judges.
  • Appointment of judges to each Chamber.
  • Appointment and removal of the Comptroller of the Court Service and resolution of discrepancies between the Secretary General and the Comptroller.
  • Disqualification of judges and their removal as per Article 23 LOTC.
  • Decision on issues affecting magistrates assigned to the President.
3) Regulatory Nature
  • Adoption and amendment of the Constitutional Court Rules.
4) Civil Servant Status
  • Establishing staffing and proposing amendments to the Cortes Generales.
  • Approving the employment relationship within the Constitutional Court.
  • Approving the workday and working hours of personnel.
  • Approving the rules for competitive examinations.
  • Agreeing on the separation of lawyers in cases established by regulation.