Constitutional Court of Spain

The Court was established along the lines of the Kelsenian model of constitutional justice, also called the European Model because it has been adopted by most European countries.{{sfn|Ferreres Comella|2004|page=461}} Unlike the main alternative, the American model, the features of the Kelsenian model are that only a constitutional court is empowered to find that a statute is unconstitutional, secondly that of abstract review (that is without requiring legal cases but rather through application by public institutions), and thirdly, that appointments to the court are made largely by political bodies and have limited terms.{{sfn|Garoupa|Magalhães|2020|page=256,260}}

The Constitutional Court is authorized to rule on the constitutionality of laws, acts, or regulations set forth by the national or the regional parliaments.{{sfn|Browning Seeley|1990|page=221}} The Court has the power to settle conflicts of jurisdiction between the central and the regional governments.{{sfn|Browning Seeley|1990|page=221}} Because many of the constitutional provisions pertaining to autonomy questions are ambiguous and sometimes contradictory, it had been suggested from the outset that the Court would play a critical role in Spain's political and social development.{{sfn|Browning Seeley|1990|page=221}}

It also may rule on the constitutionality of international treaties before they are ratified, if requested to do so by the Government, the Congress of Deputies, or the Senate.{{sfn|Browning Seeley|1990|page=221}}

The abstract review request, that the court determine the constitutionality of a law, can be brought by the Prime Minister, the Ombudsman, fifty members of congress, fifty senators, the executive or parliaments of an Autonomous Community.{{sfn|Spanish Constitution|1978|loc=article 162(1a)}}

In addition, the Court has other powers not typical of the Kelsenian model including determining whether non-legislative acts by the central government, its branches, or the regional governments abide by the distribution of powers defined by the Constitution and other higher laws, hearing complaints from the public about their constitutional rights and preventive review (prior to promulgation) of statutes of autonomy of the regions.{{sfn|Garoupa|Magalhães|2020|page=260}}

Individual citizens may appeal to the Constitutional Court for protection against governmental acts that violate their "fundamental rights or freedoms".{{sfn|Newton|Donaghy|1997}}{{sfn|Browning Seeley|1990|page=221}} Only individuals directly affected can make this appeal, called a recurso de amparo, and they can do this only after exhausting judicial appeals.{{sfn|Browning Seeley|1990|page=221}}

The General Electoral Law of June 1985 additionally allows appeals to this court in cases where electoral boards exclude candidates from the ballot.{{sfn|Newton|Donaghy|1997}}{{cite web|website=Legislation Online|title=Organic Law of General Electoral Regime in Spain (1985, as amended 2016)|publisher=OSCE Office for Democratic Institutions and Human Rights|url=https://legislationline.org/taxonomy/term/22960}}

The decisions of the Constitutional Court cannot be appealed.{{sfn|Newton|Donaghy|1997}}{{sfn|Spanish Constitution|1978|loc=article 164(1)}}

This court consists of twelve justices ({{langx|es|magistrados}}) who serve for nine-year terms. Four of these are nominated by the Congress of Deputies, four by the Senate, two by the executive branch of the government, and two by the General Council of the Judiciary.{{sfn|Browning Seeley|1990|page=221}}{{sfn|Garoupa|Magalhães|2020|page=260}} Having judges chosen by the three branches of government is unique but has not saved the Court from alleged politicisation or accusations of activism.{{sfn|Garoupa|Magalhães|2020|page=259}}

Justices are formally appointed by the King.{{sfn|Newton|Donaghy|1997}} The Constitution sets a minimum standard of fifteen years of experience in fields related to jurisprudence, including "magistrates and prosecutors, university professors, public officials and lawyers,"{{sfn|Spanish Constitution|1978|loc=article 159(2)}} and must not contemporaneously hold a position that may detract from their independence, such as a post in a political party or a representative position.{{sfn|Spanish Constitution|1978|loc=article 159(4), 159(5)}}

Amongst and by the justices of the Court, a President is elected for a three-year term, who is assisted by a Vice President, who is also justice, and a secretary-general, that is the responsible for overseeing the staff of the court.{{sfn|Newton|Donaghy|1997}}

The Constitutional Court consists of a president, currently Cándido Conde-Pumpido, the vice president, currently Inmaculada Montalbán Huertas and ten justices (who can be judges or jurists with relevant experience).

Any previously appointed justice of the Constitutional Court becomes an emeritus justice ({{langx|es|magistrados eméritos}}) after their term of office.

Like many other features of Spanish democratic institutions developed during and after the transition, the design of the court reflects compromises between the reformists within the authoritarian regime and the leftist opposition seeking a rupture with that regime, particularly the Socialist Party (PSOE).{{sfn|Garoupa|Magalhães|2020|p=261}} Those rules have allowed the political actors to extend their influence through time in determining the composition of the court.{{sfn|Garoupa|Magalhães|2020|p=273}}

A number of empirical studies show that a non-irrelevant part of the variance judicial decisions is explained by partisan alignments and political context.{{sfn|Garoupa|Magalhães|2020|p=273}}

Other studies show that many of the court's rulings have been unanimous demonstrating that a lot of the work of the Court is broadly detached from any major partisan-political stakes.{{sfn|Garoupa|Magalhães|2020|p=273}}

In 2005, the court ruled that the Spanish judicial system could handle cases concerning crimes against humanity, such as genocide, regardless of whether Spanish citizens were involved or directly affected.{{cite news|url=http://www.iht.com/articles/ap/2006/12/07/america/LA_GEN_Guatemala_Former_Dictator.php|title=Guatemalan court to rule soon on Spanish request for arrest of ex-dictator|newspaper=International Herald Tribune|date=December 6, 2006}} In this instance, it reversed the decision made by the Supreme Court in the same case, which held that such cases could be brought before Spanish courts only if a Spanish victim was involved.{{cite journal | title=Constitutional Court of Spain rules that its courts may hear genocide cases even if they do not involve Spanish citizens, and holds that principle of universal jurisdiction takes precedence over alleged national interests| journal=International Law Update|date=October 2005| volume=11| issue=10}}

In 2005, a challenge before the Court was presented denouncing the Same-sex Marriage Act of 2005 arguing that the Constitution says that «men and women have the right to marry with full legal equality» and this did not allow same-sex marriages. In 2012, after seven years of study, the Court ruled that the Constitution allows same-sex marriages because the social concept of marriage had evolved so the Constitution must to be interpreted according to the current cultural values.{{Cite web|title=I·CONnect – The Spanish Constitutional Tribunal's Same-Sex Marriage Decision|url=http://www.iconnectblog.com/2013/07/the-spanish-constitutional-tribunals-same-sex-marriage-decision/|website=www.iconnectblog.com|access-date=2018-10-26}}{{Cite web|title=Spain Constitutional Court rejects same-sex marriage challenge|url=https://www.jurist.org/news/2012/11/spain-constitutional-court-rejects-same-sex-marriage-challenge/|website=www.jurist.org|language=en|access-date=2018-10-26}}

A decision in 2010 annulling 14 articles of the Statute of Autonomy of Catalonia and reinterpreting 27 more has been a source of much controversy and conflict since then, with some arguing that the judgement was illegitimate due to fact that one judge had died and had not been replaced and three other judges terms had expired three years prior to the judgement.{{cite news|url=http://www.elmundo.es/elmundo/2010/05/25/espana/1274805865.html|title=Claves de la renovación del Tribunal Constitucional|newspaper=El Mundo|date=May 27, 2010|language=es |trans-title=The Keys to the Renewal of the Constitutional Court}} It is generally agreed that the Constitutional Court's decision has come at a high cost for Court's prestige and perceived legitimacy and has increased support for independence in the region.{{sfn|Casanas Adam|2017|p=399}} Until this decision, the Court was generally regarded as supporting the territorial model of autonomous communities, however the decision 'put the Court at the forefront of political conflict and for the first time very strongly divided specialised scholars, political parties, institutions and public opinion'.{{sfn|Casanas Adam|2017|p=398}}

In 2017, the court ordered those responsible for the Catalan referendum on November 9, 2014 to pay 5 million euros.{{Cite news|url=https://www.reuters.com/article/us-spain-politics-catalonia/spanish-auditors-demand-catalan-leaders-pay-for-previous-independence-vote-el-pais-idUSKCN1BG2XG|title=Spanish auditors demand Catalan leaders pay for previous independence vote|website=Reuters|date=September 5, 2017}} In addition, social agents from Spain have demanded that the distribution of public funds in the Catalan press should be audited.{{Cite web|url=http://www.elmundo.es/grafico/espana/2014/09/08/53db717bca4741781c8b4577.html|title=181 millones para los medios en pleno proceso soberanista|website=El Mundo|date=September 8, 2014}}

In 2022 the Court upheld an amparo appeal by the People's Party claiming a violation of their rights to exercise representative office and of the right of citizens to participate in public affairs through those representatives, by legislation which would have made changes to the General Council of the Judiciary to break the Spanish General Council of the Judiciary blockade.{{cite news |last1=Jones |first1=Sam |title=Spanish PM vows to end 'unjustifiable' block on court changes |url=https://www.theguardian.com/world/2022/dec/20/spanish-judges-block-draft-legislation-that-would-affect-their-own-court |work=the Guardian |publisher=Guardian |date=20 December 2022 |language=en}} The Court ordered that the bill to amend the laws should be suspended. This was the first time that the Constitutional Court had ordered the Parliament in this way. {{Cite web |date=2022-12-19 |title=Un TC dividido paraliza la tramitación en el Senado de la reforma que busca renovar el tribunal |url=https://www.europapress.es/nacional/noticia-constitucional-paraliza-tramitacion-senado-reforma-busca-renovar-tribunal-20221219222726.html |access-date=2022-12-20 |publisher=Europa Press}}{{Cite web |date=2022-12-19 |title=El Constitucional paraliza la reforma exprés del Gobierno para acelerar su renovación |url=https://theobjective.com/espana/tribunales/2022-12-19/constitucional-reforma-gobierno/ |access-date=2022-12-20 |website=theobjective.com |language=es}} Both the President of the Congress of Deputies Meritxell Batet and the President of the Senate Ander Gil, respected the decision of the Court,{{Cite web |last=SER |first=Cadena |date=2022-12-19 |title=Meritxell Batet y Ander Gil acatarán la decisión del TC, pero anuncian que presentarán alegaciones |url=https://cadenaser.com/nacional/2022/12/19/meritxell-batet-considera-el-bloqueo-en-la-renovacion-del-cgpj-es-un-hecho-sin-precedentes-en-la-democracia-espanola-cadena-ser/ |access-date=2022-12-20 |website=cadena SER |language=es-ES}} although they considered the decision a dangerous precedent since it meant that "the interruption of the legislative power is within the reach of a single deputy filing an appeal" which would prevent the "legitimate representatives of popular sovereignty" from "exercising their functions and debating or voting".{{Cite web |last=Digital |first=Redacción |date=2022-12-19 |title=Batet acata la decisión del TC, pero se muestra crítica: "La interrupción está al alcance de un diputado" |url=https://www.cope.es/actualidad/espana/noticias/batet-acata-decision-del-pero-muestra-preocupacion-interrupcion-esta-alcance-diputado-20221219_2458138 |access-date=2022-12-20 |website=COPE |language=es}}

• Austrian System
• Judiciary
• Rule of law
• Rule according to higher law

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{{Wikisource|Spanish_Constitution of 1978/Part IX|Part IX of the Spanish Constitution}}

• [http://www.tribunalconstitucional.es/ Official website]

• {{cite book|title=Spain: a country study|publisher=Federal Research Division, Library of Congress|location=Washington, D.C.|url=https://www.loc.gov/item/90006127/|last=Browning Seeley|first=Jo Ann|year=1990|editor-last=Solsten|editor-first=Eric|oclc=44200005 |editor-last2=Meditz|editor-first2=Sandra W.|chapter=Government and Politics|edition=2}} {{PD-notice}}
• {{cite book|first=Elisenda|last=Casanas Adam|year=2017|title=Courts in Federal Countries|editor-first1=Nicholas|editor-last1=Aroney| editor-first2=John| editor-last2=Kincaid|chapter=The Constitutional Court of Spain: From System Balancer to Polarizing Centralist |chapter-url=https://www.jstor.org/stable/10.3138/j.ctt1whm97c.16|publisher=University of Toronto Press|isbn=978-1-4875-1466-2|page=367-403|access-date=29 March 2025}}
• {{cite journal |title=The European model of constitutional review of legislation: Toward decentralization? |last=Ferreres Comella |first=Victor| journal= International Journal of Constitutional Law| volume=2| issue=3| pages=461-491| publisher=Oxford University Press | issn=1474-2640 |oclc=1124233270| url=https://academic.oup.com/icon/article/2/3/461/789224 |access-date=3 Aug 2024 |language=English |date=1 July 2004|doi=10.1093/icon/2.3.461|doi-access=free}}
• {{Cite book|isbn=978-0-19-882693-4|chapter=Judicial Politics: The Constitutional Court|first1=Nuno|last1=Garoupa|last2=Magalhães|first2=Pedro C.|pages=268–275|editor-first=Diego|editor-last=Muro|editor-first2=Ignacio|editor-last2=Lago|year=2020|title=The Oxford Handbook of Spanish Politics|publisher=Oxford University Press|chapter-url=https://books.google.com/books?id=BtjODwAAQBAJ&pg=268}}
• {{cite book|last1=Newton|first1=Michael T. |last2=Donaghy|first2=Peter J. |title=Institutions of modern Spain : a political and economic guide|publisher= Cambridge University Press |year= 1997 |isbn= 0-521-57348-3| url=https://books.google.com/books/about/Institutions_of_Modern_Spain.html?id=K_ii-Rx5tBgC}}
• {{cite web |title=The Spanish Constitution |url=https://www.boe.es/legislacion/documentos/ConstitucionINGLES.pdf |publisher=Agencia Estatal Boletín Oficial del Estado |access-date=3 Aug 2024 |language=English |date=1978|ref={{harvid|Spanish Constitution|1978}}}}

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Category:Courts in Spain

Spain

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