Spain Table of Contents
The Constitution declares that justice emanates from the people and that it is administered in the name of the king by independent judges and magistrates, who are irremovable and who are responsible and subject only to the rule of law. The judicial system is headed by the Supreme Court, which is the country's highest tribunal except for constitutional questions. The supreme governing and administrative body is the General Council of the Judiciary. Its primary functions are to appoint judges and to maintain ethical standards within the legal profession. The 1978 Constitution provides that twelve of this council's twenty members are to be selected for five-year terms by judges, lawyers, and magistrates, with the remaining eight to be chosen by the Cortes. A judicial reform law that entered into force in July 1985 called for all twenty members to be chosen by the Cortes; ten by the Congress of Deputies and ten by the Senate. The General Council of the Judiciary elects the president of the Supreme Court, who also serves on this council. In addition, there are territorial courts, regional courts, provincial courts, courts of the first instance, and municipal courts.
Constitutional questions are to be resolved by a special Constitutional Court, outlined in the 1978 Constitution and in the Organic Law on the Constitutional Court that was signed into law in October 1979. This court consists of twelve judges 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. They are chosen from among jurists of recognized standing with at least fifteen years' experience. Once appointed, they are prohibited by the Constitution from engaging in other forms of political, administrative, professional, or commercial activity. The Organic Law on the Constitutional Court contains provisions whereby the court can expel its own members, a circumstance which appears to contradict the constitutional declaration that magistrates are irremovable.
The Constitutional Court is authorized to rule on the constitutionality of laws, acts, or regulations set forth by the national or the regional parliaments. 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. The Constitution further declares that individual citizens may appeal to the Constitutional Court for protection against governmental acts that violate their civil rights. Only individuals directly affected can make this appeal, called an amparo, and they can do this only after exhausting other judicial appeals.
In addition, this court has the power to preview the constitutionality of texts delineating statutes of autonomy and to settle conflicts of jurisdiction between the central and the autonomous community governments, or between the governments of two or more autonomous communities. Because many of the constitutional provisions pertaining to autonomy questions are ambiguous and sometimes contradictory, this court could play a critical role in Spain's political and social development.
The Constitution prohibits special courts and limits the jurisdiction of military courts to members of the armed services, except during a state of siege (see Military Justice , ch. 5). It provides for a public prosecutor as well as for a public defender, to protect both the rule of law and the rights of citizens. A significant innovation is the provision allowing for trial by jury in criminal cases.
A major problem that continued to plague the legal system in the 1980s was a severe shortage of funds, which made it impossible to keep up with an increasingly heavy case load. This resulted in inordinate delays, which led to corrupt practices such as the bribing of court administrators by lawyers attempting to expedite their clients' cases (see Criminal Justice and the Penal System , ch. 5).
Data as of December 1988
Spain Table of Contents