LESSON 4

Question 1

Name the special jurisdictions of Spain

Answer 1

• Constitutional Court.
• Military jurisdiction.
• Court of Audits.
• Traditional Courts and Courts of Custom.
• International Jurisdiction bodies.

Question 2

Constitutional Court

Answer 2

This Court is NOT part of the Judicial Power, it is a special jurisdiction regulated in the Spanish Constitution of 1978 and the Organic Law October 3rd 1979.

Question 3

Characteristics of the Constitutional Court

Answer 3

• It is the Supreme Interpreter of the Constitution.
• There is only ONE Constitutional Court and it has jurisdiction over the whole Spanish Territory.

Question 4

Composition of the Constitutional Court
- article that contains the composition organization

Answer 4

Art. 159 CE states that the Constitutional Court is composed of 12 members appointed by the king:
- 2 nominated by the government.
- 2 nominated by the General Council of the Judiciary.
- 4 elected the Congress with a majority of 3/5.
- 4 elected by the Senate with a majority of 3/5.
It has a president and a vice-president, appointed by the king and elected by the so-called “Pleno”.

Question 5

Period of selection of the Constitutional Court

Answer 5

The members are elected for a period of 9 years, but the Constitutional Court gets renewed by thirds every 3 years.
The president gets elected for 3 years and they have the possibility of getting re-elected, the same is true for the vice-president.

Question 6

Constitutional Court functions

Answer 6

• They control the constitutionality of the laws using two methods: “appeal of constitutionality” (recurso de constitucionalidad) and the “cuestión de inconstitucionalidad” (question of unconstitutionality).
• Protecting the fundamental rights and liberties of citizens from violations, contained in art. 53.2 CE.
• Resolution of Constitutional Conflicts.

Question 7

Control of constitutionality of the laws

Answer 7

• Appeal of constitutionality: “recurso de constitucionalidad” it can be used by the president of the government, 50 members of the Congress, 50 members of the Senate, The “defensor del pueblo” (ombudsman) and the executive and legislative bodies of the AACCs when the law affects it.
• Cuestión de inconstitucionalidad: “question of unconstitutionality”, when a doubt arises about a particular case, the court handling the case can raise a question to the Constitutional Court.
  Only the court that is handling the case is allowed to raise the doubt or “question of unconstitutionality.”

Question 8

Protecting rights and liberties of citizens against violations, contained in art 53.2 CE

Answer 8

The Constitutional Court protects the rights recognized by arts. 14-29 CE and art. 30.2 CE, which protects the “objeción de conciencia”. This is known as a “recurso de amparo” (amparo appeal”), and it is a last resort method.
The judicial body has to protect the rights and liberties in first instance.
After this is done, it is possible to appeal to the Constitutional Court and, in some occasions, it is possible to appeal to the ECHR after appealing to the Constitutional Court.

Question 9

Arts. 14-29 CE

Answer 9

Some of the fundamental rights and Public liberties contained in this articles are:
- equality before the law (art. 14).
- freedom of expression.
- freedom of residence and movement.
- right to life.
- ideological and religious freedom.
- right to personal freedom.
- right to intimacy and inviolability of domicile.

Question 10

Art. 30.2 CE

Answer 10

Objeción de Conciencia, “Conscientious Objection”.
This is a right given exclusively to the military service, it is defined as the right recognized to the person to breach a legal duty for reasons of conscience.

Question 11

What is the difference between the issues handled by the ordinary courts and those handled by the constitutional court?

Answer 11

• Ordinary courts: deals with issues of legality.
• Constitutional court: deals with questions of constitutionality.

Question 12

Resolution of Constitutional Conflicts

Answer 12

These conflicts can be of two types:
- Between the Constitutional bodies of the State (Congress, Senate and GCJ).
- Between the Central Government and the AACC.

Question 13

How does the Constitutional Court work

Answer 13

In three ways:
- Pleno: all 12 members sit and hear a case.
- Chambers: known as “Sala 1” and “Sala 2”, each chamber is made up of 6 members and they solve “recursos de amparo” (Amparo appeals).
- Sections: each chamber is made up of sections, and each section is made up of 3 members. In “Sala 1” we can find sections 1 and 2, and in “Sala 2” we can find sections 3 and 4.

Question 14

Conditions to be a Constitutional Court member

Answer 14

• have a law degree (be a jurist).
• at least 15 years of experience.
• recognized reputation as a jurist.

Question 15

Military jurisdiction

Answer 15

Regulated in art. 117.5 CE, it handles military mattes exclusively.
- This jurisdiction is connected to the ordinary jurisdiction, since it is the fifth chamber of the Supreme Court.
- The courts of the Military Jurisdiction are regulated by the “Ley Orgánica de Competencia y Organización de la Jurisdicción Militar 1987.”
- They also handle the so-called “State of Siege” (estado de sitio).

Question 16

Traditional Courts/Courts of Custom

Answer 16

Regulated in art. 125 CE and in an Organic Law.
There are 4 of these courts:
- Tribunal de las Aguas de Valencia.
- Consejo de los Hombres Buenos de la Huerta de Murcia.
- Juzgado Privativo de Aguas de Orihuela y pueblos de Sumaco.
- Tribunal del Comuner del Rollet de Gràcia de l’Horta d’Aldaia.

Question 17

International Jurisdiction Bodies

Answer 17

These are NOT regulated in the Constitution, but in the International Treaties that get signed by Spain.
We have the:
- European Court of Justice (ECJ).
- European Court of Human Rights (ECHR).
- United Nations of Human Rights Committee.
- International Criminal Court (ICC).

Question 18

European Court of Justice (ECJ)

Answer 18

It is composed by two bodies:
The European Court of Justice (Luxembourg) + The General Court.
This body is the supreme interpreter of European Union Law, and it has jurisdiction over matters such as, for example, when a Spanish Court has a doubt it can raise it to the ECJ.

Question 19

European Court of Human Rights (ECHR)

Answer 19

Located in France, the European Court of Human Rights (ECHR) is NOT a part of the European Union, it got signed in a treaty (1950) of the so-called “Rome Convention”, this convention recognizes fundamental rights of European Union citizens. It is a Court of last resource:
- First, you have to go to the Constitutional Court.
- Then you can file an appeal to the ECHR.
Once the ECHR recognizes one of your fundamental rights has been infringed, you can file the “recurso de revisión.”

Question 20

International Criminal Court (ICC)

Answer 20

It is located in the Netherlands.
This Court hears cases about serious crimes when the national bodies are NOT able to judge those crimes.

Question 21

Court of Audits

Answer 21

Tribunal de Cuentas.
They are in charge of the accountability of the Government and the Administration.
It is made up of 12 members known as the “consejeros de cuentas”: 6 elected by the Congress and 6 elected by the Senate.
They will be elected by a 3% majority and it is regulated in 2 Organic Laws. The members of this Court have similar provisions to the judges of the judicial power.

Question 22

The Organic Laws that regulate the Court of Audits

Answer 22

• Organic Law, May 9th 1982: Organic Law of Court of Audits.
• Organic Law, April 5th 1988: About the Functioning of the Court.

Question 23

Conditions to become a member of the Court of Audits

Answer 23

• Hold a law or economics degree.
• Have 15 years of professional experience.
• Recognized prestige.