The Court as a Source of Law in the Spanish Legal System

Posted on Sep 1, 2024 in Law & Jurisprudence

Article 117.1 EC:

  • “Justice emanates from the people and is administered on behalf of the King by judges and magistrates who are members of the judiciary, independent, immovable, liable and subject only to the rule of law”

Article 1.6 CC:

  • “The case law supplemented with the doctrine, so repeatedly, set the Supreme Court in interpreting and applying the law, custom and general principles of law.”

The Models of Jurisprudence:

  • Stare Decisis:
    • The decisions of higher courts are binding on lower courts and their own previous decisions, thus making the case in a direct source of law.
    • Applicability of the Law Merely Function:
      • Mechanical application of the law.
    • Court Qualified:
      • The judges, in applying the law, but lack the normative power of the legislature, not simply as a mechanical exercise, but creative.

Principles of Legality and Constitutionality:

  • The judges are subject to the Constitution and the rule of law

The Court in the Spanish Legal System

Characteristics of the Court in the Spanish Legal System:

  • Qualified: TS, repetition, factual identity & ratio decidendi:
    • Article 1.6 CC:
      • “The case law supplemented with the doctrine, so repeatedly, set the Supreme Court in interpreting and implementing the law, custom and general principles of law.”
  • Passive Force:
    • Pruned regulations be revised based on contentious court, therefore if the sentence of a court finds that a regulation is illegal or unconstitutional, the declaration outside the walls of the Legal System eject the regulation in question.
  • Complementarity:
  • Article 1.6 CC
  • Interpretive:
    • Strict Sense: In the interpretation of the legal system, determines which particular rule is applied to a case of particular fact.
    • Normative Integration: It is the tool to integrate the legal system, filling gaps and articulate internal consistency of the legal system.
    • Decanting of PGE & Wont: By law, both the DGP became positive as usual.

The Court & the Principle of Equality

  • Article 14 EC: “The Spanish people are equal before the law, there may be no discrimination whatsoever on grounds of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.”
  • The Prohibition of Arbitrariness (Article 9.3 EC):
    • This principle aims to prevent rational within the limits of discretion.

Linking Precedent in the Judicial System:

  • Supreme Court
  • Subtracting Courts

The System on Appeal:

  • The Supreme Court, under the appellate system, is required to develop a doctrine of interpretation of the law and application that requires all judges and courts and also influencing their decisions later.

Cases Before the Constitutional Tribunal Judgments

Proceedings Before the TC:

  • Appeal of Unconstitutionality:
    • Erga omnes effect.
  • Question of Unconstitutionality:
    • Erga omnes effect.
  • Conflict of Jurisdiction
  • Conflict in Defense of Local Autonomy
  • Amparo:
    • Only effective for the appellant.
  • Control of the Treaties

Types of Sentences:

  • In Evaluation:
    • They are judgments that give reason to the appellant.
      • Well declare the unconstitutionality of a rule or to declare the existence of an infringement of a fundamental right or public liberty.
  • Rejecting:
    • They are judgments that do not give the reason for the appellant.
      • Well declare the constitutionality of a rule or to declare the absence of a breach of a fundamental right and public liberty.
  • Performing:
    • Are those judgments beyond to agree with the appellant, made an interpretation of the rule, saying that if the law in question is interpreted in a certain way is constitutional/unconstitutional.
      • Classes:
      • Additive: TC dictates these decisions to expand the text of the header the law in its scope certain groups.
      • Manipulative: The text of the rule on trial is altered in its original sense to save its constitutionality.
      • From Delegation: Are the sentences that include a recommendation to the legislature in a future constitutional avoidance.

The Jurisprudence of the Constitutional Court: The Effects

Article 161.1.a) CE:

  • “The Constitutional Court has jurisdiction throughout the Spanish territory jurisdiction and is:
    • a) The appeal of unconstitutionality against laws and regulations having the force of law.
  • The declaration of unconstitutionality of a legal rule with force of law, as interpreted by case law, affect it, but the sentence or sentences that are subjects not lose their status of res judicata.”

Article 164 EC:

  • 1. “The judgments of the Constitutional Court is published in the gazette with the dissenting votes, if any. They have the force of res judicata from the day after it was published and no further appeal against it.
    • Those who declare the unconstitutionality of a law or a rule with the force of law and all those that are not limited to the acknowledgment of a right, shall be fully binding to all.
    • 2. Unless the verdict will have something else, shall remain in force of the law on the part not affected by unconstitutionality.”

5.1 LOPJ:

  • The way the TC interprets the rules binding on judges and judges.

Effects:

  • Idem
    • A court case can not be reassessed.
  • Erga Omnes:
    • Those statements which declare the unconstitutionality of a law or a rule having the force of law and all those that are not limited to the acknowledgment of a right, have full effect to everyone.
  • Passive Force:
    • The judgments in constitutional processes can remove a particular rule of law if the Constitutional Court declared unconstitutional.
  • Autovinculación of the Above?:
    • In the previous TC linking is not as strong as in other courts.
    • Faced with similar factual circumstances, the TC can not depart from its previous decisions unless a just cause and reasonable.
  • Vs Nullity. Unconstitutional: The Effects Ex Tunc (39.1 OLCC):
    • “When the ruling declaring unconstitutional also declare the annulment of the contested provisions and, where appropriate, of those others of the same Act, provision or act the force of law to be extended for connection or consequence.”

Running them SSTC:

  • The Problem of Platonic Case:
    • It refers to the judgments that the TC acknowledged that there has been an infringement of rights but does nothing about it.