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The Court of Constitutional Guarantees

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The Court of Constitutional Guarantees the 2nd Spanish Republic

 

 

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.

In Spain, although several constitutional drafts (in 1873 and 1929) had already contemplated a similar constitutional review mechanism, the model elaborated by the Constitutional Court of Guarantees is the only legacy of the current Constitutional Court of Spain. Article 121 of the Constitution of 9 December 1931 then established "a Constitutional Court of Guarantees with jurisdiction over the entire territory of the Republic”.

The latter had been designed as a substitute for the creation of a Second Assembly or a Senate and was to be composed of several members appointed through a rather complex procedure, as provided for in the Constitution itself (Article 122):

  • A President appointed by the Parliament, with or without the status of Member of Parliament.
  • The President of the High Consultative Body of the Republic referred to in Article 93 of the Constitution.
  • The President of the Court of Auditors.
  • Two MPs freely elected by the Spanish Parliament.
  • One representative from each of the Spanish regions, elected in accordance with the procedures set out by law. Due to the absence of autonomous governments in some regions, the choice of the representatives concerned was left to the municipal councils.
  • Two members from the Bar Association of Lawyers elected by all the members practicing in Spain.
  • Four professors from Faculties of Law, appointed following the same procedure among all those teaching in Spain.

It was endowed with a set of powers that exceeded those recognized to our constitutional justice in its current conception, as defined in article 121 of the 1931 Constitution:

  • The appeal of unconstitutionality of laws. Although the capacity to exercise this remedy was initially granted "to any natural or legal person" (Article 123 of the Constitution), this attribution was then interpreted as corresponding only "to the holder of the right violated by the application [of the law in question]" (Article 30.1 of the Organic Law).
  • The amparo appeal for the protection of individual guarantees. When an appeal before other authorities would have resulted ineffective, this appeal referred - according to the text of the final draft of the Organic Law of the Constitutional Court - to the individual rights listed in Articles 27 to 34, 38 and 39 of the 1931 Constitution.
  • The conflicts of legislative powers and any other conflicts that may arise between the State and the Autonomous Communities and between the Autonomous regions themselves.
  • The examination and approval of the powers of the representatives who, together with the Cortes Generales, elect the President of the Republic.
  • The criminal responsibility of the Head of the State, the President of the Council and Ministers.
  • The criminal responsibility of the President and Magistrates of the Supreme Court and of the Attorney General of the Republic.

It took almost a year and a half before the promulgation of the Organic Law of the Tribunal on 14 June 1933 (which was immediately amended) to opt for a model of constitutional justice essentially inspired by the Austrian one, as opposed to the American model of “diffused review". In contrast with the American model where the control of regulations is the responsibility of the ordinary judge in the context of an incidental judicial procedure and which may lead to the non-application of the provision applicable to the particular case if the judge considers it unconstitutional; the Austrian model - widely imposed in Europe - is characterised by a "concentrated control" of the constitutionality of laws attributed to a specific body (a Constitutional Court) within the framework of an independent procedure of constitutional review, in order to issue a declaration as to whether or not the rule subject to review is valid, which will have immediate and erga omnes effect.

On that occasion, the appointment of the President of the Court was to be decided by the Congress by a double majority vote system. The term of the mandate was for a ten year period, with no possibility of immediate re-election. Thus, any Spanish citizen over the age of 40 who enjoyed full civil and political rights could be eligible for this position, subject to the limitations provided for in article 15 of the Organic Law.

The first President of the Tribunal was Mr. Álvaro de Albornoz Liminiana, elected by the Cortes Generales with a vote held on 3 July 1933, before resigning on 9 October 1934. He was replaced by Mr Fernando Gasset Lacasaña, elected by the same members of parliament during the session of 21 December 1934, and who in turn resigned on 27 August 1936. The first Vice-President in office, Mr Pedro Vargas Guerendiain, then took up his duties on that date.

 

Although the first working session of the Court of Constitutional Guarantees was held on 2 September 1933, there was no official inauguration of this institution until 21 October 1933. From that date, it was then enabled to elect its two first Vice-Presidents and to begin its activities, which would initially focus on internal organizational matters (the personnel as well as the economic and material resources allocated to its functioning). This work will also include the determination of its registered offices which will be located at the Palacio de Parcent, a building that today houses various departments of the Ministry of Justice.

Palacio de Parcent 

During the period 1934-1935, more than 600 cases were brought before the Constitutional Court and about fifty sessions were held every year (53 in 1934; 48 in 1935) according to the archives of the minutes book of the plenary session, kept in the general archives of the Constitutional Court, which represents the only record of the proceedings and, with the records of the Governing Council, has survived the Court and, in addition to the other documents produced and collected in the institutions concerning appointments to the Court and its employees.

Throughout this period, the Tribunal has rendered a number of judgments that have had significant political consequences at a particularly complex moment in the Spanish political history. For example, we can cite its first judgment on the conflict of competences, handed down on 11 April 1934, concerning the Catalan law on Agricultural Contracts. Similarly, another major judgment was delivered a few months later on the occasion of the trial of members of the Catalan Government after the events of 1934. Finally, during this period, the Court has developed interesting case-law on constitutional protection appeals, in particular on the issue of the compulsory presentation of evidence by governmental authorities in criminal proceedings initiated in matters of public policy, which were very frequent after the 1934 revolution.

The beginning of the civil war led to a serious political crisis within the Court, as with other State institutions, which would eventually lead to its disappearance because of its link with the republican regime. The lack of participation of its members and the personnel assigned to its service for various reasons hampered its functioning from the very beginning of its existence. Following the Decrees of 25 and 28 August, the Government had established a new composition of the Court, reduced to seven members and six substitutes, in order to facilitate its functioning. Nevertheless, as of this date, the Court was considered to have practically ceased its activities.

The evolution of the civil war led to the relocation of the Government and the Court, with the exception of its Secretary General and some of its officials to the city of Valencia, where a total of 6 plenary sessions were held between January and December 1937. Then, after the decree of 28 October 1938 issued by the new government headed by Negrín, the capital of the Republic was established in the city of Barcelona, where the Court was then transferred and will hold its first plenary session in its new headquarters on 16 February 1938. However, although the Court finally followed the government to Girona on 23 January 1939, it is considered that its existence actually ended from that date.

© 2016 CONSTITUTIONAL COURT OF SPAIN