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The question of unconstitutionality

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The Constitutional Court, through the question of unconstitutionality, as well as through the action of unconstitutionality, guarantees the supremacy of the Constitution and examines the conformity of laws, regulatory provisions and acts with force of law of the State and the Autonomous Communities to the Constitution.

The question of unconstitutionality can only be promoted - on its own initiative or upon request - by judges and courts and must do so if they consider that a rule with the force of law applicable to the process who they are adjudicating and whose validity depends on the decision to be taken, may be contrary to the Constitution.

The court must raise the question once the process is concluded and the deadline for delivering judgment is fixed., and must identify the law or regulation having the force of law whose constitutionality raises doubts, and the constitutional provision allegedly infringed and specify or justify to what extent the decision process depends on the validity of the law in question.

Before adopting the Decree where the Court decides to raise the question of unconstitutionality, parties and Public Prosecutor must be heared for the common and non-extendable ten day period who who may express what they wish on the relevance of raising the question of unconstitutionality. Then, without further formality, the court will adopt a decision within three days.

The court must raise to the Constitutional Court the Decree formulating the question of unconstitutionality together with the testimony of the main case and the arguments made by the parties and the public prosecutor. The lodging of the question of unconstitutionality determines the provisional suspension of proceedings in the trial until the Constitutional Court rules on admission and, if admitted, until final resolution of the issue.

The Constitutional Court may reject pending admission by Decree and after hearing the Attorney General, when considers that procedural conditions are not met or the question is manifestly unfounded.

The admissibility of the question of unconstitutionality has to be published in the Official Gazette, and any party of legal proceedings within which the question has been promoted may join the constitutional process, within fifteen days of the publication. The Court must also communicate the matter to the Congress of Deputies, the Senate, the Attorney General, the Government and, should affect a law or legal provision having the force of law of an Autonomous Community, its executive and legislative bodies so that they can appear in the proceedings and make submissions within fifteen days. Concluded this period, the Constitutional Court shall deliver a judgment.

The judgments in these procedures have res judicata force, are binding on all public authorities and produce general effect from the date of its publication in the Official Gazette.

© 2016 CONSTITUTIONAL COURT OF SPAIN