Spanish Constitution of 1978

• The Spanish Constitution of 1978 outlines the structure and content of the government.
• It was approved in chambers on October 31, 1978, ratified via referendum on December 6, 1978, and took effect on December 29, 1978, the day it was published in the BOE.

Constitution Characteristics

• It is rigid, requiring a more stringent reform process than other legal norms, as regulated in Title X CE.
• It is consensual, formulated to enable agreement among the constituent assembly members.
• It is democratic in origin, stemming from an assembly representing all political forces and later ratified in a referendum.
• It is the supreme legal norm.
• Dual-valued, it integrates fundamental values and principles while being legally applicable, inspiring, and directly applicable.
• Influenced by neighboring countries.

Structure

• The Spanish Constitution (CE) contains a dogmatic part, which designates articles enunciating basic principles and values, and an organic part, outlining the composition, operation, and functional relationships of the state's superior bodies, excluding Title X on constitutional reform.
• It includes a preamble with a declarative, non-perceptive exposition of motives and objectives
• The articles are divided into 10 titles and a preliminary title, which compiles general principles. These titles cover fundamental rights, the Crown, the General Courts, the Government and Administration, Government relations with the General Courts, the Judicial Power, public finances and the economy, territorial organization, constitutional justice, and constitutional reform procedures.
• There consist of 4 additional and 9 transitional provisions address territorial matters.
• There is 1 repealing provision, abolishing previous Fundamental Laws and any conflicting provisions
• Also, 1 final provision establishes immediate enforceability and mandates publication in other official languages

Preliminary Title

• Covers general principles in articles 1-9.

State Legal Structure

• Article 1 defines Spain as a social and democratic state under the rule of law, promoting liberty, justice, equality, and political pluralism as superior values.

Social State

• The state commits to providing social services, ensuring citizens' rights are legally protected.
• It actively participates in income redistribution, guaranteeing minimum standards for all citizens with the aim of securing rights recognized by the Constitution.
• Objectives include maintaining national security, providing social services, addressing socioeconomic levels, and acting as an economic planner through state involvement in private enterprises, redistributing production and income via taxes.

Democratic State

• Popular sovereignty resides in the people, exercised through direct and indirect participation, with representatives delegated real power.
• Its definitive characteristics: unique, indivisible, intransmissible, imprescriptible, and inviolable.
• It maintains an organizational structure and promotes democratic coexistence, enabling full citizen participation in state institutions

Rule of Law

• It is based on the separation of legislative, executive, and judicial powers, the principle of equality, and the recognition and protection of human rights
• Article 9.1 states that citizens and public powers are subject to the Constitution and the legal system without distinction
• Article 10 states that the dignity of the person, inviolable rights, free development of personality, and respect for law and the rights of others form the basis of political order and social peace
• The fundamental rights and freedoms are interpreted according to the Universal Declaration of Human Rights and international treaties.
• Article 1.3 states that the political form of the Spanish State is parliamentary monarchy, subject to the Spanish people, the General Courts, and the Constitution

State Territorial Structure

• Article 2 recognizes the right to autonomy for nationalities and regions, emphasizing solidarity while affirming the indivisible unity of the Spanish Nation.
• The state is organized territorially into municipalities, provinces, and autonomous communities, all with autonomy to manage their interests
• The state of autonomies prohibits the right to self-determination, recognizes the unity of the Spanish nation, prohibits federation among communities, and bases the system on solidarity, acknowledging the historical identities of peoples within the Spanish state

Co-official Languages

• Article 3 establishes co-officiality: Castilian Spanish is the general official language, with regional languages recognized in their respective territories.
• Article 4 defines the flag
• Article 5 defines the capital of the State.

Political Parties

• Article 6 defines political parties as fundamental for political participation, requiring free creation and operation within the Constitution and law, with democratic internal structures.

Syndicates and Associations

• Article 7 defines syndicates and business associations as mechanisms for social participation, defending and promoting economic and social interests with democratic internal structures.

Armed Forces

• Article 8 defines the Armed Forces, integrated by the army, navy, and air force, to guarantee sovereignty, independence, territorial integrity, and constitutional order.

Legal Principles

• Article 9 defines the set of basic principles and guarantees in the State's legal structure, such as legality and the duty of public powers to promote citizen participation in political, economic, cultural, and social life.
• The Spanish legal system is structured on the basis of hierarchical and competence principles. Hierarchy involves grading various norm types, ensuring certain norms prevail. Competence entails dividing matters between state and autonomous institutions, enabling each to have exclusive, concurrent or shared competency to perform relevant functions
• Norms must be published in the BOE before they become effective to ensure publicity.
• Laws that impose penalties or restrict individual rights cannot be applied retroactively, guaranteeing legal security, however, the decriminalization does affect individuals already being judged for actions no longer defined as unlawful.
• Also defined is juridical security; responsibility; the prohibition of arbitrariness of public power; direct enshrinement of legality's principle; the subjugation of public power; law for citizens.

Fundamental Rights

• Title I (Articles 10-55) recognizes fundamental citizen rights, which public powers cannot suppress or restrict and are obligated to protect and guarantee, structured by degree of protection.
• Article 10 offers a framework for interpreting fundamental duties and freedoms with the dignity of the person, inviolable rights, the free development of personality and respect for the law and the rights of others as the foundation for public order

Spaniards and Foreigners

• Chapter I (Articles 11, 12, 13):
• Article 11: no Spaniard of origin can be deprived of their nationality.
• Article 12: states the age of majority is 18
• Article 13: Grants foreigners the freedoms in Title I, as per treaties and laws and only Spaniards can have Article 23 rights, unless reciprocity is agreed upon to ensure active/passive suffrage in municipal elections. Political crimes exclude extradition, except no terrorism, with laws establishing how citizens from other countries and stateless people can enjoy asylum.

Rights and Liberties

• Chapter II (Articles 14 to 38): In Article 14, all Spaniards are equal before the law without discrimination based on birth, race, sex, religion, opinion, or any other personal or social circumstance
• Section 1 (Articles 15 to 29) covers fundamental rights and public liberties.
  • It covers rights like the right to life and physical and moral integrity, ideological, religious, and cult freedom, and the right to liberty and personal security and guarantees for detainees
  • Other rights: privacy; freedom of residence and circulation; ideas, opinions, the right to artistic, scientific, and technical production, and the right to freely communicate accurate information; the right to assemble and demonstrate; the right to associate; the right to participate in public affairs; and effective protection from judges and courts
  • More include the principle of penal legality and freedom of teaching with compulsory and free education
  • Also defined: the rights to unionization and to strike; the right to petition

Rights and Duties

• Section 2 (Articles 30 to 38):
  • Article 30.1 states Spaniards have the right and duty to defend Spain
  • Article 31 states everyone contributes to public expenses based on their economic capacity through a fair tax system, which is progressive and has no confiscatory scope.
  • It covers equality in marriage; right to private property and its social function; right to found for general interest purposes; right and duty to work; legal regime of professional associations and practice of professions; workers' right to collective bargaining and adopts collective conflicts means; and entrepreneurial freedom within a market economy

Principles of Social and Economic Policy

• Chapter III (Articles 39 to 52): Most of the provisions in this chapter constitute constitutional principles guiding public policy. They include protection of the family, rights of children, equal rights of children regardless of affiliation, paid vacations and the right to rest, protection to safety and hygiene at work, social security for all, access to culture, environmental protection, right to adequate housing, consumer protection.

Guarantees of Rights and Freedoms:

• Chapter IV (Articles 53 and 54):
  • Grants direct applicability to the rights and liberties in Chapter II of Title I, binding all public powers but rights in articles (15-29) don't need laws to be applicable and can be directly invoked before justice tribunals (also protectable by the TC)
  • With articles (30-38), rights can be invoked directly before justice tribunals but ordinary tribunals and the rights/duties of citizens recognized also at legal and justice tribunals but must be implemented first with judicial power
  • It requires their development be by a norm with the rank of law.

Suspension of Freedom/Rights

• Chapter V (Article 55): Rights suspensions can happen applied in generalized or individually-based forms for temporal or exceptional measures to restore previous rights, with state authorities ensure citizen rights are still defended.
• Generalized suspensions occur during exceptional states (alarm, exception, or siege.)
  • The state of alarm does not produce any suspension of, and in fact constitutes a restriction/limitation of.
  • Exception and siege states instead do create right suspensions, specifically: the right to freedom and security (Article 17), the inviolability of the home (Article 18.2), the secrecy of communications (Article 18.3), freedom of residence and movement (Article 19), freedom of expression (except literary, artistic, scientific, and technical works), freedom of assembly (Article 21), right to strike (Article 28.2), and right to adopt collective conflict measures (Article 37.2).