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History of the Constitutional Court

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I. Constitutional justice

The origins of the Constitutional Court in Spain

The model of concentrated constitutional justice emerged during the inter-war period in Europe when the first constitutional courts were established, and more particularly with the influence of the constitutions of Austria and Czechoslovakia as of 1920. Although several projects were envisaged in Spain to establish d´un a constitutional review of the laws (1873 and 1929), the Constitutional Court of Guarantees - which was created at the beginning of European constitutional justice - represents the predecessor of the current Constitutional Court. Instituted by the Constitution of 9 December 1931 (Article 122) and governed by the Organic Law of 14 June 1933, this Constitutional Court of Guarantees was largely based on the Austrian model. It is competent, inter alia, to review the constitutionality of laws, to protect individual guarantees, to rule on conflicts of jurisdiction between the Republic and the Autonomous Communities and to review the criminal responsibility of the Head of State, the President of the Council and Ministers, the President and Judges of the Supreme Court and the Prosecutor of the Republic. The need to control the territorial distribution of powers of the state and the need to guarantee the fundamental rights enshrined in the Constitution was clearly recognised, although this concept was still lacking in maturity and consolidated models. This has therefore almost logically led to the creation of a Court with a strong political dimension and very disparate functions. Finally, the outbreak of the Spanish Civil War and its rapid evolution have significantly contributed to the sudden disappearance of this Court..

II. The Spanish Constitutional Court

Establishment and first works

The Spanish Constitution of 27 December 1978, whose Title IX is devoted to the Constitutional Court, was completed by an Organic Law (LOTC 2/1979) dated 3 October.

Its first Magistrates were appointed by Royal Decrees on 14 February 1980 (published on 22 February). On 25 February, only 10 of them met in collegial form ("Colegio de Magistrados") since the last two members of the Tribunal to be proposed by the General Council for the Judiciary had to wait until the official constitution of this institution was finalised. Their deliberations were presided over by Mr. Manuel García-Pelayo y Alonso, Dean of Magistrates, accompanied by Mr. Rafael Gómez-Ferrer to serve as Secretary of the Proceedings as the youngest of the Magistrates. From that time until the final establishment of the Court on July 12 (in accordance with the First Additional Provision of the LOTC), the first appointed Magistrates were fully aware of the task ahead. They then indicated through the minutes of their first session that it was their duty [...] and responsibility to prepare the work that they considered most appropriate in order to ensure the effective functioning of the Court on the day it was constituted.

On 3 July 1980, at the end of the parliamentary session of Parliament - and in accordance with Article 9 of the LOTC - the Magistrates of the Constitutional Court elected Mr Manuel García Pelayo as President and Mr Jerónimo Arozamena Sierra as Vice-President of the institution. These appointments were proposed to His Majesty the King on 3 July of the same year. The Constitutional Court was finally founded on 12 July 1980 and opened its Registry ("Registro General") on 15 July in order to begin exercising the powers conferred on it by the Constitution and its Organic Law (Resolution of 14 July 1980). In the words of its President Emeritus Mr Francisco Tomás y Valiente, " in the delicate balance between respect for its independence and the needs of the court, the Government of the Nation has been attentive to the suggestions of the Magistrates and accepted their initiatives in order to make a decisive contribution to the effective establishment of the Court, both in human and material resources, as all are necessary and vital for its functioning". Initially, the Court organised its working meetings at the Centre for Constitutional Studies before it moved to its provisional headquarters at Paseo de la Habana. Finally, in 1981, it will freeze the core of its activities in its current headquarters located in Street Domenico Scarlatti. During several less intense activities, the Court will have dealt with issues of a very diverse nature but all related to the implementation of the institution, ranging from the decision of the slogan that will appear on the Magistrates' Medal (finally Freedom. Justice. Concord) to much more practical and related decisions in the day-to-day affairs.

His first court decision ("Auto") was rendered on August 11, 1980 in the context of an appeal d´ amparo. Then, its first judgment ("Sentencia") was issued on 26 January 1981. Since then and until today, the Constitutional Court has created a vast body of case law, consisting of more than 8,000 judgments and nearly 17,000 decisions.

International activities

The Spanish Constitutional Court, which has benefited from many experiences and has been enriched by the organisational model of other constitutional courts - including the courts of Germany, Austria, Italy and Mexico - can also testify to the interest and solid international cooperation in a multitude of forms through its participation in bilateral exchanges and multilateral meetings.

In October 1981, the Constitutional Court was invited to participate in the Fifth Conference of European Constitutional Courts, accepting on this occasion the task of organising the Sixth Conference in Madrid from 22 to 27 October 1984. Since then, the Court has not only participated in this Conference, but there are also many other actions in the field of international cooperation, in particular the Ibero-American Conference of Constitutional Courts of Latin America, Portugal and Spain, promoted by the Constitutional Court as part of the University Colloquium on the fifteenth anniversary of LOTC in 1994, which constitutes a stable framework for multilateral cooperation through regular meetings of the various courts with constitutional competence in the countries mentioned. The preparatory meeting for the first Conference was held in Cartagena de Indias (Colombia) on 20 and 21 January 1995.

Similarly, since 1999, a Trilateral Conference of the Constitutional Courts of Spain, Portugal and Italy has been set up, as have other international events such as seminars, working visits, etc.

 

The Constitutional Court and its renewal process to appoint new Magistrates

 

Article 159.3 of the Constitution provides that the members of the Constitutional Court are appointed for a period of nine years and are renewed by one third every three years.

In the history of the Court, the renewal process of Magistrates has taken on different forms. Since it was impossible to comply with the rule of one-third renewal and the nine-year term for founding members, the Constitution provided a different modality to the principle set out. In its ninth transitional clause, it specifies that three years after the first appointments, a group of four Magistrates shall be randomly chosen and will be required to leave office for the purpose of being replaced. This first group was composed of Magistrates elected on the proposal of the Government and the General Council for the Judiciary. Three years later, another group composed of the four Magistrates elected on the proposal of the Congress of Deputies was then led to the termination of their terms in office, although the Congress voted in favour of the continuity of each of them. Since then, the Court has been renewed ten times, the last four Magistrates having been appointed by Royal Decree of 20 July 2012. During the course of the Court's existence, many Magistrate seats became vacant as a result of resignation or death and were thus reallocated according to the same procedure. Sometimes, more or less significant delays could be observed for the new Magistrates as a result of the internal processes of the constitutional bodies in charge of proposing these new members.

Renewals Government-CGPJ Senate Congress of Deputies
Inicio 1980
1, 2 3 and 4     1983
1986 1989 1992
5, 6 and 7 1995 1998 2001
8, 9 and 10 2004 2007 2011-2012
11, 12 and 13 2013 or 2015 2016 or 2020 2019 or 2023

 

Thus, the Constitutional Court has granted the status of Magistrate to 59 members since its creation, some of them having even been renewed in their offices on more than one occasion: ​

With regard to its former Presidents, the list of Emeritus Magistrates to date includes the following Members of the Court:

Amendments to the Law on the Constitutional Court (LOTC)

Since its creation, the Constitutional Court has experienced various changes in relation to its jurisdictional competences. Although the Constitution grants most of the powers conferred on it, the reference made through article 161.1. d) of the Constitution (the prerogative to deal with matters conferred on it by the Constitution but also by organic laws) has led to the great importance given to the work of the Spanish legislator. Indeed, it allowed for example the creation of a procedure to request prior approval from the Constitutional Court on the constitutionality of international treaties and a preliminary ruling mechanism concerning draft organic laws or Statutes of Autonomy (which was subsequently annulled by Organic Law 4/1985 of 7 June). Similarly, an amparo appeal procedure in electoral matters was introduced in 1985 (Organic Law 5/1985, of 19 June on the General Electoral System amended by Organic Law 8/1991). Then, a procedure setting up an appeal for unconstitutionality of state or regional laws that could be contrary to the principle of autonomy of Local Administrations was introduced in 1999 (Organic Law 7/1999 of 21 April on the Autonomous Communities). More recently, a specific procedure has been introduced to challenge provincial tax regulations (Organic Law 1/2010, of 19 February). Finally, the preliminary appeal for unconstitutionality contemplated in 1985 was restored by limiting itself to the Draft Statutes of Autonomy and their reform proposals (Organic Law 12/2015, of 22 September).

As regards its jurisdictional activities, the sharp increase in case load in the early years had a very noticeable and rapid impact on the average processing time. This led to further amendments to the LOTC, mainly with regard to the amparo appeal and the procedure of admissibility before the Court. Thus, Organic Law 1/2000 of 7 January 2000 opted for an extension of the time limit provided for in Article 33 LOTC for filing an appeal for unconstitutionality. This period was then extended from three to nine months when there is a prior agreement between the two administrations involved in order to resolve disputes arising at constitutional level in connection with a legislative provision or having the force of law. Then, Organic Law 6/2007 of 24 May 2007 aimed in particular to resolve the difficulties of the Constitutional Court's functioning as a whole. It has thus led to establish a new regulation on the admissibility of amparo proceedings by giving ordinary courts more means to monitor violations of fundamental rights. It introduced new rules on the invalidity of procedural acts and new rules on internal constitutionality issues. Finally, Organic Law 15/2015 of 16 October provided the Constitutional Court with new enforcement instruments enabling it to exercise its powers in order to ensure the proper implementation of its decisions.

The Constitutional Court's contributions to our Social and Democratic Rule of Law

The role played by the Constitutional Court in structuring our democratic State over the 40 years since its creation is fundamental and manifests itself in several aspects: the clarification of the system of distribution of competences within the Autonomous State; the construction of a complex system of fundamental rights, in accordance with that established by the European Court of Human Rights; an effective control of the constitutionality of laws and a better understanding of the distinction between mere legality and proper constitutionality issues. A work that was carried out by several generations of the best Spanish lawyers (Magistrates, Senior Lawyers, State and Autonomous Community Lawyers, Prosecutors) carrying out their work with the greatest rigour and independence. According to Francisco Tomás y Valiente´s words,

"The Court must never be obsessed by the echo of its decisions. It must never seek applause or flee censorship. Because in a democratic society endowed with freedoms whose defence is the prerogative of the Court itself, there will always be, except in the most ordinary decisions, applause and criticism ... "(TOMAS Y VALIENTE, Francisco, "La Constitución y el Tribunal Constitucional" en Obras Completas, CEPC, Madrid, 1997, VI, p. 4784).

© 2016 CONSTITUTIONAL COURT OF SPAIN