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Spain The Judiciary
The Constitution declares that justice emanates from
the
people and that it is administered in the name of the king
by
independent judges and magistrates, who are irremovable
and who
are responsible and subject only to the rule of law. The
judicial
system is headed by the Supreme Court, which is the
country's
highest tribunal except for constitutional questions. The
supreme
governing and administrative body is the General Council
of the
Judiciary. Its primary functions are to appoint judges and
to
maintain ethical standards within the legal profession.
The 1978
Constitution provides that twelve of this council's twenty
members are to be selected for five-year terms by judges,
lawyers, and magistrates, with the remaining eight to be
chosen
by the Cortes. A judicial reform law that entered into
force in
July 1985 called for all twenty members to be chosen by
the
Cortes; ten by the Congress of Deputies and ten by the
Senate.
The General Council of the Judiciary elects the president
of the
Supreme Court, who also serves on this council. In
addition,
there are territorial courts, regional courts, provincial
courts,
courts of the first instance, and municipal courts.
Constitutional questions are to be resolved by a
special
Constitutional Court, outlined in the 1978 Constitution
and in
the Organic Law on the Constitutional Court that was
signed into
law in October 1979. This court consists of twelve judges
who
serve for nine-year terms. Four of these are nominated by
the
Congress of Deputies, four by the Senate, two by the
executive
branch of the government, and two by the General Council
of the
Judiciary. They are chosen from among jurists of
recognized
standing with at least fifteen years' experience. Once
appointed,
they are prohibited by the Constitution from engaging in
other
forms of political, administrative, professional, or
commercial
activity. The Organic Law on the Constitutional Court
contains
provisions whereby the court can expel its own members, a
circumstance which appears to contradict the
constitutional
declaration that magistrates are irremovable.
The Constitutional Court is authorized to rule on the
constitutionality of laws, acts, or regulations set forth
by the
national or the regional parliaments. It also may rule on
the
constitutionality of international treaties before they
are
ratified, if requested to do so by the government, the
Congress
of Deputies, or the Senate. The Constitution further
declares
that individual citizens may appeal to the Constitutional
Court
for protection against governmental acts that violate
their civil
rights. Only individuals directly affected can make this
appeal,
called an amparo, and they can do this only after
exhausting other judicial appeals.
In addition, this court has the power to preview the
constitutionality of texts delineating statutes of
autonomy and
to settle conflicts of jurisdiction between the central
and the
autonomous community governments, or between the
governments of
two or more autonomous communities. Because many of the
constitutional provisions pertaining to autonomy questions
are
ambiguous and sometimes contradictory, this court could
play a
critical role in Spain's political and social development.
The Constitution prohibits special courts and limits
the
jurisdiction of military courts to members of the armed
services,
except during a state of siege
(see Military Justice
, ch.
5). It
provides for a public prosecutor as well as for a public
defender, to protect both the rule of law and the rights
of
citizens. A significant innovation is the provision
allowing for
trial by jury in criminal cases.
A major problem that continued to plague the legal
system in
the 1980s was a severe shortage of funds, which made it
impossible to keep up with an increasingly heavy case
load. This
resulted in inordinate delays, which led to corrupt
practices
such as the bribing of court administrators by lawyers
attempting
to expedite their clients' cases
(see Criminal Justice and the Penal System
, ch. 5).
Data as of December 1988
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