Constitutional Court (Spain)

Opening of the seat of the Tribunal on 12 July 1980 by the kings, Juan Carlos I and Sofia.

The Constitutional Court (TC) is a Spanish constitutional body independent of the other constitutional bodies. It is the supreme interpreter of the Spanish Constitution of 1978 and is only subject to it and to the Organic Law of the Constitutional Court. Although it is called a “court”, it is not part of the Judiciary.

It is made up of 12 magistrates appointed by the king (4 at the proposal of the Congress of Deputies, 4 from the Senate, 2 from the Government and 2 from the General Council of the Judiciary).

Legal status

It is regulated in Title IX of the Constitution —articles 159 to 165—, as well as in Organic Law 2/1979, of October 3, of the Constitutional Court (LOTC). According to article 1 of the LOTC, the Constitutional Court is independent in its function as the supreme interpreter of the Constitution and is subject only to the Constitution and said law. In addition, it is unique in its order and extends its jurisdiction to the entire Spanish territory.

However, the composition of the Court does depend on the other powers of the State, since they are the ones who propose it. Of the twelve members:

• 4 are appointed on the proposal of the Congress of Deputies,
• 4 on the proposal of the Senate,
• 2 on the proposal of the Government
• and 2 on the proposal of the General Council of the Judiciary.

For this reason, the Constitutional Court lacks organic independence, as its members are ultimately elected by the leadership of the political parties that negotiate the proposals of the candidates in accordance with the provisions of article 159 of the Constitution and article 16 of the LOTC.

Competencies

The last interpretation of the constitutional precepts corresponds to the Constitutional Court, indicating the extension and limits of superior values such as freedom, equality, justice and political pluralism.

The Constitutional Court is competent to hear:

• Resources of unconstitutionality and questions of unconstitutionality against laws and regulations with the force of law (e.g. Decree-Law and Legislative Decrees). The appeal of unconstitutionality can be filed by the President of the Government, the Ombudsman, 50 Members of Congress, 50 Senators, the Autonomous Governments and the Autonomous Parliaments;
• Resources for amparo for violation of fundamental rights and related public liberties in art. 53.2 of the Constitution, that is, for violation of the freedoms and rights recognized in the articles. 14-29 of the Constitution, both inclusive, and conscientious objection to military service, provided for in art. 30. Any natural or legal person who invokes a legitimate interest, the Ombudsman and the Prosecutor ' s Office may lodge it;
• Constitutional conflicts of competence between the State and the autonomous communities or those of them;
• Conflicts between the constitutional organs of the State;
• Previous declarations on the constitutionality of international treaties;
• Impugnations provided for in article 161.2 of the Constitution. According to this article, the Government may challenge before the Constitutional Court the provisions and resolutions adopted by the bodies of the autonomous communities. The challenge will result in the suspension of the provision or resolution, but the Constitutional Court, if any, must ratify or lift it within a period not exceeding five months;
• Conflicts in defence of local autonomy;
• Verification of the appointments of the judges of the Constitutional Court, to judge whether they meet the requirements required by the Constitution and this Law;
• And the other matters attributed to it by the Constitution and organic laws.^{[chuckles]Which one?]}

Regarding the resources of illegality of regulations, the contentious-administrative jurisdiction is competent and not the Constitutional Court, since, being legal norms emanating from the Government through its regulatory power that do not have the force of law, there is no appeal for unconstitutionality. The court with ultimate jurisdiction in this matter is the Supreme Court.

International treaties can be appealed for unconstitutionality before the Constitutional Court, since the Spanish Constitution grants them the force of Law.

The Constitutional Court may issue regulations on its own functioning and organization, as well as on the regime of its personnel and services, within the scope of its regulating organic law. These regulations, which must be approved by the Full Court, will be published in the Official State Gazette.

Composition

The Constitutional Court is made up of 12 members, who hold the title of Magistrates of the Constitutional Court. They are appointed by the king by Royal Decree, at the proposal:

• Of the Chambers that make up the General Courts. Four of its members are appointed by the Congress of Deputies and four others by the Senate, in both cases by a 3⁄5 majority of the members of each House. Those appointed by the Senate necessarily come from candidates nominated by the legislative assemblies of the autonomous communities;
• Government. It's two.
• From the General Council of the Judiciary. It's two, by a 3⁄5 majority of its members.

The position lasts nine years, and to be appointed you must have Spanish citizenship and be a magistrate, prosecutor, university professor, public official or lawyer. It is also necessary to be a lawyer of recognized competence with more than fifteen years of professional practice.

The Magistrates of the Court are renewed by third parties every three years.

The members of the Constitutional Court are independent and immovable in the exercise of their mandate. Likewise, with the aim of reinforcing their independence, they cannot be prosecuted for the opinions expressed in the exercise of their functions nor can they be dismissed nor suspended except for any of the causes established by this Law.

President Vice-President

Judge/ date and place of birth		Proposed	Takeover/ time in charge	Previous post (the most recent one before joining the Tribunal)
01!	Enríquez Sancho, RicardoRicardo Enríquez Sancho 01944 1944 Madrid, Community of Madrid	Senate	02014-03-19 19 March 2014 (9 years and 39 days)	Magistrate of the Supreme Court (2004–2014)
01!	Count-Pumpido, Capt.Candida Conde-Pumpido 01949-09-22 22 September 1949 La Coruña, Galicia	Senate	02017-03-15 15 March 2017 (6 years and 42 days)	Magistrate of the Supreme Court (2012–2017)
01!	Balaguer Callejón, María LuisaMaría Luisa Balaguer Callejón 01953 1953 Almeria, Andalusia	Senate	02017-03-15 15 March 2017 (6 years and 42 days)	Professor of Constitutional Law of the University of Malaga (1999–2017) and Counsellor of the Advisory Council of Andalusia (2005–2017)
01!	Sáez Valcárcel, Juan RamónJuan Ramón Sáez Valcárcel 01957-06-23 23 June 1957 Madrid, Community of Madrid	Congress of Deputies	02021-11-18 18 November 2021 (1 year and 159 days)	Judge of the National Court
01!	Arnaldo Alcubilla, EnriqueEnrique Arnaldo Alcubilla 01957 1957 Madrid, Community of Madrid	Congress of Deputies	02021-11-18 18 November 2021 (1 year and 159 days)	Letter from the General Courts (1986–2021)
01!	Espejel Jorquera, ConcepciónConception Espejel Jorquera 01959-09-15 15 September 1959 Madrid, Community of Madrid	Congress of Deputies	02021-11-18 18 November 2021 (1 year and 159 days)	President of the Criminal Chamber of the National Court (2017–2021)
01!	Montalbán Huertas, ImmaculateImmaculate Montalban Huertas 01959-11-26 26 November 1959 Iznalloz, Andalusia	Congress of Deputies	02021-11-18 18 November 2021 (1 year and 159 days)	President of the Disputes Chamber of the High Court of Justice of Andalusia, Ceuta and Melilla (2014–2021)
01!	Campo Moreno, Juan CarlosJuan Carlos Campo Moreno 01961-10-17 17 October 1961 Osuna, Andalusia	Government	02023-01-09 9 January 2023 (107 days)	Judge of the National Court (2021–2023)
01!	Diez Bueso, LauraLaura Díez Bueso 01969 1969 Barcelona, Catalonia	Government	02023-01-09 9 January 2023 (107 days)	Vice-President of the Council of Statutory Guarantees of Catalonia (2022)
01!	Segoviano, María LuisaMaría Luisa Segoviano 01950 1950 Valladolid, Castilla y León	General Council of the Judiciary	02023-01-09 9 January 2023 (107 days)	President of the Social Chamber of the Supreme Court (2020-2022)
01!	Tolosa Tribiño, CesarCésar Tolosa Tribiño 01957 1957 Santa María la Real de Nieva, Castilla y León	General Council of the Judiciary	02023-01-09 9 January 2023 (107 days)	President of the Disputes Chamber of the Supreme Court (2020-2022)

Incompatibilities

The condition of member of the Constitutional Court is incompatible:

1. With any representative mandate;
2. Political or administrative positions;
3. With the performance of leadership functions in a political party or in a trade union and with the use of them;
4. With the exercise of judicial and fiscal careers;
5. With any professional or commercial activity.

In the rest, the members of the Constitutional Court will have the incompatibilities of the members of the Judiciary.

In general, it is only possible for the magistrates of the Constitutional Court to teach or legal research, as well as the production and literary, artistic, scientific and technical creation and the publications derived from it.

Presidents

• Manuel García Pelayo (1980-1986)
• Francisco Tomás and Valiente (1986-1992). Murdered by the terrorist organization ETA on 14 February 1996.
• Miguel Rodríguez-Piñero Bravo-Ferrer (1992-1995)
• Álvaro Rodríguez Bereijo (1995-1998)
• Pedro Cruz Villalón (1998-2001)
• Manuel Jiménez de Parga (2001-2004)
• María Emilia Casas Baamonde (2004-2011), more time in the position of president.
• Pascual Sala Sánchez (2011-2013)
• Francisco Pérez de los Cobos Orihuel (2013-2017)
• Juan José González Rivas (2017-2021)
• Pedro González-Trevijano Sánchez (2021-2023)
• Conde-Pumpido Tourón (2023-present)

Vice Presidents

• Jerónimo Arozamena Sierra (1980-1986)
• Gloria Begué Cantón (1986-1989)
• Francisco Rubio Llorente (1989-1992)
• Luis López Guerra (1992-1995)
• José Gabaldón López (1995-1998)
• Carles Viver Pi-Sunyer (1998-2001)
• Tomás Vives Antón (2001-2004)
• Guillermo Jiménez Sánchez (2004-2011), more time in the position of vice president.
• Eugeni Gay Montalvo (2011-2012)
• Ramón Rodríguez Arribas (2012-2013)
• Adela Asúa Batarrita (2013-2017)
• Encarnación Roca Trías (2017-2021)
• Juan Antonio Xiol Rios (2021-2023)
• Immaculate Montalban Huertas (2023-present)

Emeritus magistrates

An emeritus magistrate is considered to be any member who in the past has been part of the Constitutional Court as a magistrate.

Relationship with the Supreme Court

Although at times it might appear that the Constitutional Court is of higher rank than the Supreme Court, this is not the case. Their relationship is not hierarchical but competitive. However, in practice it can be considered that the Supreme Court is subordinate to the Constitutional Court in that the latter can annul the resolutions of the former, which cannot happen the other way around. One example among others we have in the famous sentence of the Urbanor case, in which the Constitutional Court annulled on February 19, 2008 the sentence of the Supreme Court on the same case.

The Supreme Court is the highest-ranking court within the Judiciary. However, the Constitutional Court is outside of that hierarchy and forms its own category, with differentiated recognition in the Constitution. Its obligation is to ensure compliance with the Constitution and for this it has the power to declare unconstitutional laws null and void and to defend citizens from violations of their fundamental rights (amparo appeal).

Case Law

The judgments of the Constitutional Court are published in the Official State Gazette with individual votes, if any. They have the value of res judicata from the day after their publication and cannot be appealed.

Those that declare the unconstitutionality of a law or regulation with the force of law and all those that are not limited to the subjective estimation of a right have full effect against all. Unless the ruling provides otherwise, the validity of the law will remain in force in the part not affected by the unconstitutionality.

Currently, in Spain, there is an intense controversy between civilians and constitutionalists ^[who?] regarding the inclusion of the jurisprudence of the Constitutional Court in the category of sources of law. In favor of said inclusion, it is argued that its resolutions create true norms, even in the absence of state regulation (for example, what happened with compulsory military service and conscientious objection). In fact, it is a negative legislator, since it can exclude laws and regulations from the legal system, considering them contrary to the Constitution. The Constitutional Court can also innovate the law through what is known as "interpretative sentences", which indicate the precise meaning that the interpretation of a certain norm must have in order not to be contrary to the Constitution.

From the point of view of the history of universal constitutional law and political science, it can be considered that the most controversial aspect of the function of the Spanish Constitutional Court is, ope jurisprudentiae, the creative capacity of Law. This is so because the legal nature of the Constitutional Court, as the supreme interpreter of the Spanish Constitution, configures it as a "constituted power" of the State, that is, created by the Spanish Constitution, which is the supreme norm of the Spanish legal system in accordance with Kelsenian logic. Since the constituted powers are those that derive from a "constituent power", which is the one that establishes the regime of power of a State through a political constitution or fundamental law, they cannot create or destroy constitutional law. A case in which the law-creating capacity of the bodies of constitutional justice can be appreciated in an especially clear way is the one that can be deduced from the following text: «in our constitutional system, even when it is not made explicit in the terms with which it is proclaimed In the constitutional texts of other States, fundamental rights also apply to national legal persons to the extent that, by their nature, they are applicable to them" (Constitutional Court judgment no. 23/1989, legal basis 2.°), which is a rule of Spanish positive law.