Understanding the Spanish Constitutional Court and Its Functions
ITEM 7: THE CONSTITUTIONAL COURT
1. Introduction: The Spanish Model for Constitutional Justice
Constitution: The highest legal authority, as only in this superiority can the constitutional text serve as a control parameter for other lower legal standards.
Birth of Constitutional Justice: Historically, the constitution is seen as supreme, and constitutional justice was born in the USA with the judge’s ruling in Marbury v. Madison in 1803, establishing a system for the constitutionality of laws, known as judicial review. In Europe, this concept did not emerge until the 20th century with democratic constitutionalism, creating specific organs of constitutional control aimed at protecting the constitution from potential distortions arising from the misuse of power, particularly against the rights of minorities.
European Constitutional Courts: These courts are established as specific bodies that provide binding interpretations of the constitution. They are not integrated into the judiciary and focus on controlling the constitutionality of laws and protecting fundamental rights.
- Control is abstract.
- Control is conducted by a specific organ.
- Judgments have common effectiveness.
Features of the American Model:
- Control is concrete and incidental.
- Control corresponds to judges.
- Causes inter-party effects.
2. The Model of the Spanish Constitutional Court
Established with the constitution of the Second Republic, the tribunal of constitutional guarantees was created. Between 1939 and 1975, constitutional justice was absent due to the lack of a constitution during Franco’s dictatorship. The 1978 constitution reestablished a body known as the Constitutional Court.
Characteristics of the Constitutional Court:
- It is a constitutional body, the supreme interpreter of the constitution, and independent of other constitutional bodies.
- It is judicial but not interpreted within the judiciary.
- It provides binding interpretations of the constitution.
- It guides state policy.
3. Constitutional Court: Structure and Organization
Composition
Kelsen believed that an ideal constitutional court should not be too large and must result from a political compromise between majorities and minorities. The court is composed of 12 members elected by Congress with a majority of 3/5, the General Council of the Judiciary, and the government. Members include judges, prosecutors, university professors, lawyers, and officials with at least 5 years of recognized practice, appointed for a period of 9 years, renewed by thirds every 3 years. They cannot be dismissed or removed from office until their term is completed.
Organization
- President: One of the twelve judges, chosen from among their peers for a period of 3 years.
- Vice President: Elected by the same procedure as the president, replacing the president in their absence.
- The Full Court: Composed of 12 judges chaired by the president, responsible for all resources that fit with the TC, except for amparo.
- Rooms: Two rooms, each consisting of judges, with Chamber 1 chaired by the president and Chamber 2 by the vice president.
- Sections: Four sections, each with 3 judges, responsible for procedural appeals before the TC.
4. The Powers of the Constitutional Court
- Control of the constitutionality of laws through motions.
- Protection of rights and freedoms through amparo.
- Guarantee of territorial distribution of power through conflicts of competence.
- Control of the constitutionality of provisions and resolutions from autonomous community organs.
- Control of power distribution among different branches of the state through conflicts of powers between constitutional bodies.
5. Procedures for Unconstitutionality
Appeal of Unconstitutionality: This abstract review monitors the adequacy of laws to the constitution. The rules that can be challenged include organic laws, ordinary laws, autonomy statutes, and regulations of the chambers. Authorized persons to file a constitutional complaint include the Prime Minister, the Ombudsman, 50 deputies, 50 senators, and presidents of regional assemblies. Complaints must be filed within 3 months from the publication of the standard.
- Written appeal by the entitled subject.
- Arguments must be presented to Congress, the Senate, the government, and the autonomous region.
- Claims can be made within 15 days.
- The TC must rule within 10 days.
Effects: The annulment of the provisions concerned, with judgments binding on all public authorities.
Question of Unconstitutionality: Courts act as a filter for complaints of unconstitutionality, requiring a minimum basis for the TC to consider the issue. The issue must be relevant for the decision and based on constitutional law.
6. Conflict of Competence
Conflict of Authority: The TC ensures the separation of powers by resolving disputes between branches of government regarding constitutional attributions. Procedures include informing the invasive body to rectify the decision if any constitutional body believes another has assumed powers that are not theirs.
- Positive Conflict: Occurs when both the state and an autonomous region claim their own competition in dispute.
- Negative Conflict: Arises when no administration considers itself competent to decide a claim.
7. The Control of International Treaties
Instrument Procedure: This controls the constitutionality of rules with the force of law and international treaties before they come into force.
- Requirement: The TC calls upon the applicant and other authorized persons to present arguments within a month.
- The TC has another month to make its statement.
Effects: If any sign of unconstitutionality is found, amendments to the constitution will be required to ensure compatibility.
8. The Remedy of Amparo
This instrument protects the rights and freedoms of citizens before the TC, serving a double mission: to protect citizens’ rights and uphold constitutionality.
- Object: Protection against any act of government violating constitutional rights.
- Cases: Actions without the force of law, acts of government, and omissions of judicial organs.
Proceedings: Presentation of demand outlining the facts and violated constitutional provisions. The TC will determine admissibility and proceed accordingly.