Spanish Constitutional Court Composition

• The Constitutional Court is regulated in Title IX of the Constitution and in Organic Law 2/1979 of October 3 of the Constitutional Court.

Composition

• The Constitutional Court interprets the Constitution, and is independent of other constitutional bodies, subject only to the Constitution and the Organic Law.
• It is unique and its jurisdiction extends throughout the national territory.
• The Constitutional Court is composed of 12 members appointed by the King.
  • Four are proposed by the Congress by a majority of three-fifths of its members.
  • Four are proposed by the Senate, with the same majority.
  • Two are proposed by the Government.
  • Two are proposed by the General Council of the Judiciary.
• The members of the Constitutional Court must be appointed from among Magistrates and Prosecutors, University Professors, public officials and lawyers, all of them jurists of recognized competence with more than fifteen years of professional practice.
• The Magistrates of the Constitutional Court are appointed by the King, at the proposal of the Chambers, the Government and the General Council of the Judiciary.
• Each body that has to make the appointment proposals must guarantee the principle of a balanced presence of women and men, so that they include at least forty percent of each of the sexes
• The Magistrates proposed by the Senate are elected from among the candidates presented by the Legislative Assemblies of the autonomous communities under the terms determined by the Chamber's Regulations.
• The members of the Constitutional Court are appointed for a period of nine years and are renewed by thirds every three years.
• The condition of member of the Constitutional Court is incompatible with any representative mandate; with political or administrative positions; with the performance of management functions in a political party or in a union and with employment at the service of the same; with the exercise of judicial and fiscal careers; and with any professional or commercial activity.
• The members of the Constitutional Court have the incompatibilities of the members of the judicial power.
• The members of the Constitutional Court are independent and irremovable in the exercise of their mandate.
• The Court in Plenary elects its President from among its members by secret ballot and proposes his appointment to the King.
• In the first vote an absolute majority is required.
• If this is not reached, a second vote is taken, in which the person who obtains the highest number of votes is elected.
• In the event of a tie, a final vote is held, and if this is repeated, the one with the most seniority in office is proposed, and in the event of equality, the one with the oldest age.
• The name of the elected person is submitted to the King for appointment for a period of three years, after which he may be re-elected only once.

Functioning

• The Constitutional Court acts in Plenary, in Chambers or in Sections.
• The Plenary is composed of all the Magistrates of the Court. It is presided over by the President of the Court and, in his absence, the Vice-President and, in the absence of both, the most senior Magistrate in office and, in case of equal seniority, the one of older age.
• The Constitutional Court consists of two Chambers. Each Chamber is composed of six Magistrates appointed by the Court in Plenary.
• The President of the Court is also the President of the First Chamber, which will be presided over in his absence by the most senior Magistrate and, in case of equal seniority, the one of older age.
• The Vice-President of the Court presides over the Second Chamber and, in his absence, the most senior Magistrate and, in case of equal seniority, the one of older age.
• For the ordinary dispatch and the decision or proposal, as appropriate, on the admissibility or inadmissibility of constitutional proceedings, the Plenary and the Chambers shall constitute Sections composed of the respective President or his substitute and two Magistrates.
• The Plenary will be informed of the proposals for admission or inadmissibility of matters within its competence. In the event of admission, the Plenary may defer to the Chamber that corresponds to the knowledge of the matter in question, under the terms provided for in this law.

Competencies

• The Constitutional Court hears the cases and in the manner determined by the Law:
  • Recourse and question of unconstitutionality against Laws, normative provisions or acts with the force of Law.
  • Unconstitutional action for violation of public rights and freedoms related in article fifty-three, two, of the Constitution.
  • Constitutional conflicts of powers between the State and the Autonomous Communities or those of the latter among themselves.
  • Conflicts between the constitutional bodies of the State.
  • Conflicts in defense of local autonomy.
  • Declaration on the constitutionality of international treaties.
  • Prior control of unconstitutionality in the case provided for in Article seventy-nine of the Organic Law of the Constitutional Court.
  • Challenges provided for in number two of Article one hundred and sixty-one of the Constitution.
  • Verification of the appointments of the Magistrates of the Constitutional Court, to judge whether they meet the requirements required by the Constitution and this Law.
  • Other matters attributed to it by the Constitution and the Organic Laws.
• The Constitutional Court may issue regulations on its own operation and organization, as well as on the regime of its personnel and services, within the scope of this Law.
• These regulations, which must be approved by the Court in Plenary, will be published in the «Official State Bulletin», authorized by its President.
• The competence of the Constitutional Court extends to the knowledge and decision of preliminary and incidental questions not belonging to the constitutional order, directly related to the matter of which it knows, for the sole purpose of constitutional judgment of the same.
• The Government may challenge before the Constitutional Court the provisions and resolutions adopted by the bodies of the Autonomous Communities.
• The challenge will produce the suspension of the challenged provision or resolution, but the Court, where appropriate, must ratify or lift it within a period not exceeding five months.
• The Court in Plenary hears the following matters:
  • Constitutionality or unconstitutionality of international treaties.
  • Unconstitutionality appeals against laws and other provisions with the force of law, except those of mere application of doctrine, whose knowledge may be attributed to the Chambers in the processing of admission. In attributing knowledge of the appeal to the Chamber, the Plenary must indicate the constitutional doctrine of application.
  • Questions of unconstitutionality that it reserves for itself; the others must be deferred to the Chambers according to an objective turn.
  • Constitutional conflicts of powers between the State and the Autonomous Communities or those of the latter among themselves.
  • Prior appeals of unconstitutionality against Draft Statutes of Autonomy and against Proposals for Reform of the Statutes of Autonomy.
  • Challenges provided for in paragraph 2 of Article 161 of the Constitution.
  • Conflicts in defense of local autonomy.
  • Conflicts between the constitutional bodies of the State.
  • Annulments in defense of the jurisdiction of the Court provided for in Article 4.3.
  • Verification of compliance with the requirements required for the appointment of Magistrate of the Constitutional Court.
  • Appointment of the Magistrates who are to form each of the Chambers.
  • Disqualification of the Magistrates of the Constitutional Court.
  • Dismissal of the Magistrates of the Constitutional Court in the cases provided for in Article 23 of the Organic Law of the Constitutional Court.
  • Approval and modification of the regulations of the Court.
  • Any other matter that is the competence of the Court but calls for the Plenary, at the proposal of the President or of three Magistrates, as well as any other matters that may be expressly attributed to it by an organic law.

Declaration of Unconstitutionality

• The Constitutional Court guarantees the primacy of the Constitution and judges the conformity or nonconformity with it of the Laws, provisions or challenged acts.
• The following are subject to a declaration of unconstitutionality:
  • Statutes of Autonomy and other organic Laws.
  • Other Laws, regulatory provisions and acts of the State with the force of Law. In the case of Legislative Decrees, the competence of the Court is understood without prejudice to the provisions of number six of Article eighty-two of the Constitution.
  • International treaties.
  • Regulations of the Chambers and of the General Courts.
  • Laws, acts and regulatory provisions with the force of Law of the Autonomous Communities, with the same caveat formula in section b) with respect to cases of legislative delegation.
  • Regulations of the Legislative Assemblies of the Autonomous Communities.
• The declaration of unconstitutionality may be promoted by:
  • Unconstitutional action.

Unconstitutional action

• The unconstitutionality appeal against the Laws, normative provisions or acts with the force of Law may be promoted from their official publication.
• The President of the Government, the Ombudsman, fifty Deputies and fifty Senators are entitled to exercise the unconstitutionality appeal when it comes to Statutes of Autonomy and other State Laws, organic or in any of its forms, and normative provisions and acts of the State or of the Autonomous Communities with the force of law, International Treaties and Regulations of the Chambers and of the General Courts.
• For the exercise of the unconstitutionality appeal against the Laws, provisions or acts with the force of Law of the State that may affect its own scope of autonomy, the collegiate executive bodies and the Assemblies of the Autonomous Communities are also entitled, prior agreement adopted to that effect.
• The unconstitutionality appeal will be formulated within a period of three months from the publication of the challenged Law, provision or act with the force of Law through a claim presented before the Constitutional Court, in which the circumstances of identity of the persons or bodies that exercise the action and, where appropriate, of their commissioners must be expressed, specify the Law, provision or challenged act, in whole or in part, and specify the constitutional provision that is understood to be infringed.
• This period may be extended to nine months in the unconstitutionality appeals filed by the President of the Government or the executive bodies of the Autonomous Communities when, within the Bilateral Cooperation Commission between the State Administration and the respective Autonomous Community, the beginning of negotiations is agreed to resolve the existing discrepancies between the parties, and the modification of the normative text may be requested.

Question of Unconstitutionality Promoted by Judges

• When a Judge or Court, ex officio or at the request of a party, considers that a rule with the rank of Law applicable to the case and whose validity depends on the ruling may be contrary to the Constitution, it will raise the question to the Constitutional Court subject to the provisions of this Law.
• The judicial body may only raise the question once the procedure has been concluded and within the period to issue a sentence, or the jurisdictional resolution that would be appropriate, and must specify the law or norm with the force of law whose constitutionality is questioned, the constitutional precept that is supposed to be infringed and specify or justify to what extent the decision of the process depends on the validity of the norm in question.
• Before adopting its final decision by means of an order, the judicial body will hear the parties and the Public Prosecutor so that within the common and unextendable period of 10 days they may allege what they wish about the relevance of raising the question of unconstitutionality, or about its merits; then and without further procedure, the judge will resolve it within the period of three days.
• This order will not be susceptible to any type of appeal. However, the question of unconstitutionality may be attempted again in successive instances or degrees as long as a final judgment is not reached.
• The raising of the question of constitutionality will originate the provisional suspension of the actions in the judicial process until the Constitutional Court rules on its admission. Once this has occurred, the judicial process will remain suspended until the Constitutional Court definitively resolves the question.

Unconstitutional action

• The rights and freedoms recognized in Articles 14 to 29 and 30.2 of the Constitution are susceptible to constitutional protection, without prejudice to their general protection entrusted to the Courts of Justice.
• Equal protection will apply to the conscientious objection recognized in Article thirty of the Constitution.
• The constitutional action for protection protects, under the terms established by this law, against violations of the rights and freedoms referred to in the previous section, caused by the provisions, legal acts, omissions or simple de facto of the public powers of the State, the Autonomous Communities and other public entities of a territorial, corporate or institutional nature, as well as of their officials or agents.
• In the constitutional action for protection, no other claims may be made than those aimed at restoring or preserving the rights or freedoms for which the action was filed.
• The following are entitled to file the constitutional action for protection:
  • Any natural or legal person who invokes a legitimate interest.
  • The Ombudsman.
  • The Public Prosecutor's Office.
• If the action is promoted by the Ombudsman or the Public Prosecutor, the Chamber with jurisdiction to hear the constitutional action will communicate it to the possible injured parties who were known and will order the announcement of the filing of the action in the «Official State Gazette» for the purposes of appearance of other possible interested parties. This publication will have preferential status.
• The deadlines for filing the action for protection against governmental or administrative decisions and the action for protection against judicial decisions are twenty and thirty days, respectively, from the notification of the resolution that ends the previous judicial channel. The deadline for filing the action for protection against parliamentary decisions is three months from when, in accordance with the internal rules of the Chambers, they are final.

Judgements of the Constitutional Court

• The judgments of the Constitutional Court will be published in the Official State Gazette with the dissenting votes, if any.
• They have the value of res judicata from the day following their publication and no appeal is possible against them.
• Those that declare the unconstitutionality of a Law or of a norm with the force of Law and all those that are not limited to the subjective estimation of a right, have full effects against all.
• Unless otherwise provided in the judgment, the validity of the Law will subsist in the part not affected by the unconstitutionality.