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History of the Constitutional Court

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I. Constitutional jurisdiction

Background Information

The concentrated constitutional jurisdiction model that responds to the Constitutional Court takes place in the Europe of the interwar period, when the first Constitutional Courts and, more specifically, in the Constitutions of Austria and Czechoslovakia from 1920. Although a constitutional review was contemplated in various constitutional projects (1873 and 1929), the Court of Constitutional Guarantees, born in the early European constitutional justice, is the only precedent of the current Spanish Constitutional Court. Established in the Constitution of December 9, 1931 (Article 122) and regulated by the Organic Law of June 14, 1933, it was inspired by the Austrian model and was responsible for, among other things, the control of the constitutionality of laws , the protection in respect of individual rights, the resolution of conflicts between the Republic and the autonomous regions and the control of the criminal responsibility of the Head of State, the President of the Council and the Ministers, the President and Judges of the Supreme Court, and the public prosecutor. There was a clear awareness of the need for control of the territorial distribution of power and effectiveness of the proclaimed fundamental rights, while the concept lacked maturity and consolidated models, which moved almost logically to a configuration of a Court with a very strong political nature and dissimilar functions. Finally, the outbreak of the Spanish Civil War and its colophon determined its very short life.

III. The Spanish Constitutional Court

First moments

Created by the Spanish Constitution of 27 December 1978, which devotes to it its Title IX, regulation of the Constitutional Court is subject to the Organic Law 2/1979, of October 3 (LOTC).

The first judges appointed by Royal Decree of 14 February 1980 (published on February 22), took office the 25th of that month as the College of Magistrates. Initially, they were only ten, since the remaining two to complete the twelve members of the Court were to be proposed by the General Council of the Judiciary, a constitutional body that had not made on that date. Its first meetings were chaired by Manuel García Pelayo Alonso, as eldest Judge and acted as Recording Secretary Rafael Gómez-Ferrer, since he was the youngest Judge. From then until its formal constitution as Court, to be held on July 12, according to the provisions of the first additional provision of LOTC, the appointed judges consider, and this is so expressed in the minutes of its first session, that it is their duty [...] and they should carry out the preparatory work they deemed appropriate to ensure effective functioning of the Tribunal from the date of its constitution.

After the session of the Parliament, and as stated in Article 9 of the LOTC, the judges proceed to elect on July 3rd, 1980 Manuel García Pelayo as President and Don Jerónimo Arozamena Sierra as its VicePresident proposing his appointment to His Majesty the King on July 3rd. Finally, the Constitutional Court was founded on July 12, 1980 under the chairmanship of the latter, the opening of general registration taking place on July 15, date were it effectively started to exercise the powers that the Constitution and the Organic Law attributed to it ( Agreement of July 14). In the words of his former Judge and President, Francisco Tomas y Valiente, in a delicate balance between respect for the independence of the young institution and in order to remedy its inaction, the Government of the Nation attended suggestions, agreed initiatives and contributed decisively to the fact that in a few months the Court enjoyed those human and material resources necessary to undertake its operation under favorable conditions. For the first time, the Court met at the Center for Constitutional Studies, passing latter to temporarily occupy the building on the Paseo de la Habana and, finally, in 1981, on the street Domenico Scarlatti which is its current headquarters. Those were months of intense activity, in dealing with issues of various kinds but all related to the implementation of the Court, ranging from the decision on the slogan to appear on the medal of Magistrates (finally Libertas.Iustitia.Concordia) to decisions much more related to everyday tasks.

Court’s first jurisdictional resolution was an Order issued on 11 August 1980 in an amparo appeal. And its first judgment appeared on January 26, 1981. Since then and until today the Constitutional Court has created an extensive jurisprudence, consisting of over 8,000 sentences and 17,000 Decrees.

International Activity

The Constitutional Court of Spain, which has benefited from the model and experience of other courts, among which are those of Germany, Austria, Italy and Mexico has noted the desirability for international cooperation in all its forms, both through bilateral contacts and through multilateral meetings.

In its early stages, the Constitutional Court began its international activity, being invited to participate in October 1981 at the V Conference of European Constitutional Courts, in which accepted the commitment to organize the VI Conference in Madrid on 22-27 of October 1984. Since then, the Court is involved not only in the aforementioned Conference, but in many other actions concerning international cooperation, highlighting among them the Latin-American Conference of Constitutional Courts, gathering Courts form Latin-America, Portugal and Spain. The Spanish Constitutional Court also launched the Academic Colloquium on the fifteenth anniversary of the LOTC in 1994, and which becomes a stable framework of multilateral cooperation through regular conferences with the courts and constitutional jurisdiction of Latin America, Portugal and Spain. The preparatory meeting of the First Conference was held in Cartagena de Indias (Colombia) on 20th and 21st January 1995.

Also, since 1999 the so-called Trilateral Conference of Constitutional Courts of Spain, Portugal and Italy, has been regularly celebrated, as well as other international events such as seminars, working visits, etc.

 

The Constitutional Court and its renewal cycles

 

Article 159.3 of the Constitution provides that members of the Constitutional Court shall be appointed for a period of nine years and renewed by thirds every three years.

In the history of the Court’s renovations, several time cycles of complete renovation can be distinguished. As regarding the founder judges it was impossible to simultaneously satisfy the rule of renewal by thirds and nine years of mandate. The Constitution, in its ninth transitional provision contemplated that three years after the first election of the twelve judges, the Court would proceed by draw, to designate the group of four members who had to resign and be replaced, understood as the designated group that initially nominated by the Government and the General Council of the Judiciary; and again three years later. This was so done, corresponding first cessation to judges nominated by the Congress of Deputies, although Congress voted in favour of the continuity of all of them. From there and to date there have been ten renewals of the Court, being the last four judges appointed by Royal Decree of 20 July 2012. During the whole period there have been vacants by resignation or death and exceptional substitutions, plus more or less protracted delays due to the greater or lesser timeliness of the constitutional bodies that have to propose to the new judges.

Renovaciones Gobierno-CGPJ Senado Congreso
Inicio 1980
1, 2 3 y 4     1983
1986 1989 1992
5, 6 y 7 1995 1998 2001
8, 9 y 10 2004 2007 2011-2012
11, 12 y 13 2013 o 2015 2016 o 2020 2019 o 2023

 

Thus, since its establishment to date, have held the status of judges of the Constitutional Court a total of 59 Judges, having been some of them on more than one occasion: ​

As for the Court Presidents, the relationship to date is as follows:

Changes in the governing Constitutional Court Act (LOTC)

Since its inception, the Constitutional Court has been experiencing several changes in its adjudicating powers. Although the essential content is contained in the Constitution, the reference contained in Article 161.1.d) on the jurisdiction of the Court to hear the matters assigned by the Constitution and organic laws, implied that the legislator could introduce some modifications. It established a procedure for a Declaration of the Court on the constitutionality of international treaties and also appeal mechanisms against a previous draft Statutes of Autonomy and organic laws (subsequently removed (by organic Law 4/1985 of June 7). Also in 1985 the electoral amparo appeal was instituted (by Organic Law 5/1985 of June 19, on the General Electoral System and amended by Organic Law 8/1991); and later, in 1999, the complaint against laws of the State or the Autonomous Communities that might not be respectful with the constitutional principle of local autonomy (Organic Law 7/1999 of 21 April). And more recently, a specific procedure for challenging provincial laws on taxation has been instituted (Organic Law 1/2010 of 19 February). Also in 2015 Organic Law 12/2015 of 22 September, restored the previous constitutional challenge of laws, but now, only for Bills passing Statutes of Autonomy and its proposals for reform.

Since it relates to its activity, since the early years, it was visible the rapid rise in the volume of issues and their impact on the average duration of processes, which has led to changes in the LOTC focused primarily on the amparo appeal for the protection of fundamental rights and procedures related to admission. Thus, by Organic Law 1/2000 of 7th January, the deadline provided for in Article 33 of the LOTC to lodge appeal of unconstitutionalityl is increased from three to nine months when there is a prior agreement between the two governments to try solve the problems of constitutionality which might present a Law; by Organic Law 6/2007 of 24th May, Spanish legislator intended to confront the difficulties of functioning of the Constitutional Court, establishing a new regulation of the admission of amparo appeal, giving the ordinary courts more powers to control fundamental rights violations through a new regulation of the incident claiming nullity of judicial procedural acts; and giving a new regulation to internal questions of constitutionality. Finally, by Organic Law 15/2015, of October 16th, new legal tools are introduced in order to give the Court a bundle of powers to ensure effective implementation of its resolutions.

The contribution of the Constitutional Court to our social and democratic rule of law

The role played by the Constitutional Court in shaping our democratic state along more than 35 years since its constitution is essential and is perceived in many aspects: clarification of the system of distribution of powers in the Autonomic State; construction of a complex system of fundamental rights, consistent with that established by the European Court of Human Rights; effective control of constitutionality of laws; and greater clarity as to the line between legality and constitutionality issues. This reflects the enormous work of several generations of some of the best Spanish lawyers (univeristy professors, judges, lawyers, State and Autonomous Communities legal officials and also Public Prosecutors) who develop their jobs with the greatest rigor and independence. As Francisco Tomas y Valiente wrote,

"The Court should never be obsessed by the echo of its resolutions. Neither must seek applause or flee censorship, because in a democratic society endowed with the freedoms that the Court itself protects, it will always be, in each case, in each non-routine judgment, applause and censures ... "(TOMAS Y VALIENTE, Francisco, "La Constitución y el Tribunal Constitucional" in Collected Works, CEPC, Madrid, 1997, VI, p. 4784.

© 2016 CONSTITUTIONAL COURT OF SPAIN