The Legal System of Spain

The national government of Spain is composed of a parliamentary monarchy with a hereditary constitutional monarch as the head of state. Under the 1978 Constitution, power was centered in a bicameral legislature–the Cortes (comprising of the lower house, Congress of Deputies, and upper house, Senate). Both houses are elected by universal suffrage every four years, but the 350-member Congress of Deputies uses a proportional representation system, whereas the Senate contains 208 members elected directly as well as 49 regional representatives. The Congress of Deputies handles greater legislative power. The leader of the dominant political party in the Cortes is designated by the Prime Minister and serves as the head of government. The Prime minister, deputy Prime Minister, and cabinet ministers together make up the Council of Ministers, the highest national executive institution with both policy-making and administrative functions. The constitution also establishes an independent judiciary. The judicial system is headed by the Supreme Court. It also includes territorial courts, regional courts, provincial courts, courts of first instance, and municipal courts. The Constitutional Court resolves constitutional questions. The twenty-member General Council of the Judiciary appoints judges and maintains ethical standards within the legal profession. The constitution also provides for a public prosecutor and a public defender to protect both the rule of law and the rights of citizens.
The regional government is a traditionally centralized, unitary state; however, the 1978 Constitution recognizes and guarantees the right to autonomy of nationalities and regions of which the state is composed. In the late 1980s, the national territory was divided among seventeen autonomous communities, each encompassing one or more previously existing provinces. Each autonomous community was governed by statute of autonomy providing for a unicameral legislative assembly elected by universal suffrage. The assembly members select the president from their ranks. The executive and administrative power is exercised by the Council of Government, headed by the president and responsible to the assembly. The division of powers between the central government and the autonomous communities was imprecise and ambiguous in the late 1980s, but the state had an ultimate responsibility for financial matters and so could exercise a significant degree of control over autonomous community activities. Another means of control provided by a presence in each region of central government is a delegate appointed by the Council of Ministers to monitor regional activities. The provincial government remained centralized in the late 1980s. It was headed by civil governors appointed by the Prime Minister, who are usually political appointees. The provincial government is administered by a provincial council that is elected from among the subordinate municipal council members and headed by the president. There are special provisions for the Basque provinces, the single province autonomous communities, and the Balearic and Canary Islands, as well as North African enclaves.
Following the death of Francisco Franco y Bahamonde in November 1975, King Juan Carlos de Bourbon engineered a transition to democracy that resulted in the transformation of
dictatorial regime into a pluralistic, parliamentary democracy. Prior to the advent of participatory
democracy, there was little political involvement by the citizens. Under Franco, the Spanish society essentially depoliticized. But after forty years without elections, parties revived and proliferated in months following Franco’s death.
Spain’s foreign relations were traditionally isolated from mainstream European affairs. It was neutral in both world wars and was ostracized during the early rule of Franco because of Franco’s Fascist ties and dictatorial regime. But because of the strategic location at the western entrance to the Mediterranean, Spain was drawn into the United States orbit during the Cold War. It signed a defense agreement with the United States in 1953, and was subsequently renewed at regular intervals. Nevertheless, anti-Americanism persisted. They were also permitted to join the United Nations. Following Franco’s death in 1975, the main diplomatic goal was to establish closer ties with Western Europe and to be recognized as a West European democratic society. It became a member of the Council of Europe in 1977, EC in 1986, and Western European Union in 1988. It had already joined the North Atlantic Treaty Organization in 1982, but the membership was controversial within Spain. Socialists initially opposed it, but ultimately it came to support limited involvement, and a public referendum in March of 1986 confirmed Spain’s membership. Other major foreign policy objectives were to increase Spanish influence in Latin America, to achieve the return of sovereignty over Gibraltar to Spain, and to serve as a bridge between Western Europe and the Arab world, in which Spain had adopted a generally pro-Arab stance.
The 1978 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. 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.
One aspect of Spain’s limited experience of democratic politics is that its judiciary has historically tended to be more or less directly controlled by the government of the day. Executive influence was especially widespread under the Franco regime and took a number of forms. Offences that would in most countries be considered a matter for the civilian courts fell under military jurisdiction; judges’ career chances were under direct government control. As a result, the executive’s role in the administration of justice was thorny issue facing democratic governments after 1975.

The 1978 Constitution included provisions designed to ensure judicial independence. Modeled on similar arrangements in France and Italy, they envisaged creation of a General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ). In essence, the CGPJ’s purpose was to remove from government control personnel decisions affecting the judiciary. Under the 1980 Act it had sole responsibility for all such matters, including the selection of members of the judicial service, appointment to particular posts, and promotion to higher courts.

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The CGPJ also has wide powers to propose changes in the organization of the judiciary and court system. It examines proposed legislation of all types, advising the government as to compatibility with judicial procedures and the Constitution. It must be consulted by the government before the latter appoints a new Attorney General, and itself nominates two members of the Constitutional Court. The Council is also responsible for nominating from among its own members the chairman of the Supreme Court, who in turn automatically assumes the chair of the CGPJ.

As required by the 1978 Constitution, various mechanisms exist to protect the public interest within the legal system. First, the elected government of the day has a number of responsibilities in this area. As in most continental European countries, these lie with the Ministry of Justice. The Ministry has a number of different roles. In consultation with other bodies, including the Lawyers Association, it drafts government legislation. It administers the legal system’s physical infrastructure, such as courthouses. The Ministry also runs the government’s own legal service.

The second instrument of the public interest within the legal system is the government attorney service. This body is responsible principally for acting as public prosecutor in criminal cases. As such, attorneys initiate the examination stage of cases, and thereafter cooperate with the police and the examining magistrate in assembling the evidence. At the subsequent trial they lead the prosecution case.

In addition, the attorney service has a general brief to monitor the functioning of the courts to ensure that verdicts are implemented and that procedures are properly carried out. Its members enjoy wide powers to intervene in cases where they have grounds to believe that the public interest is affected. The service is headed by the Attorney General, nominated by the government after consulting the General Council of the Judiciary.

Constitutional provisions for more direct public involvement in the judicial system have been less than fully implemented. Thus the Constitution allows for the possibility of trial by jury, yet measures to regulate its introduction were not passed until 1995. Even then there was very little preparation in terms of public education, giving rise to considerable concern among both lawyers and the public about the practical effects.

The Constitution also allows the possibility of a private prosecution. If litigation can be shown to derive form a sufficient degree of public concern, then the costs must be taken by the state. Yet this provision too has had minimal impact, because of the highly restrictive conditions on its applications. In practice, access to the courts continues to require the retention not just of a lawyer but also of an officially recognized legal representative, equivalent to a barrister or advocate.
Prior to 1975 several types of courts enjoyed the power to impose legally binding decisions. They included Church courts, as well as the tribunals operated by certain professional organizations and by the military. The 1978 Constitution recognizes the jurisdiction of these latter within the specifically military sphere. With this single exception however, it explicitly denies legal jurisdiction to all organs other than the courts of the state’s own judicial systemSpanish courts are also structured on the basis of a conceptual division of the judicial process into stages. The central the only one in many cases, is that of trial. Evidence is presented to and examined by the court which then announces its verdict and any sentences. If one of the parties has legitimate grounds to question the court’s decision, the case may pass to a further stage, that of appeal.

In criminal cases the trial is also preceded by another stage, that of examination. During it the court authorities are responsible for gathering the relevant evidence, in the form of exhibits and statements. The results are then presented to the court trying the case in a report. It is a fundamental principle of the system that, in a given case, no two of these stages should be handled by the same court.

The conceptual hierarchy of court overlaps with a second, geographical one, higher levels of which cover larger areas as well as subsequent stages of procedure. It was subject to considerable reform by the 1988 Court Structure and Functions Act. The only tier left unaffected by the Act was the lowest, made up of the municipal courts with jurisdiction over minor civil and criminal offences. They are presided over by a single Justice of the Peace, who is not required to have any legal training.

The fundamental change introduced by the 1988 Act was the establishment of new courts at the level of court districts to replace the former district courts. These so-called courts of the first instance and examination deal with the bulk of cases. They act as appeal courts for cases tried before justices of the peace, a role in contradiction with their title. In other civil cases they act as a genuine court of the first instance, i.e., as the court by which the case is first heard. In most criminal cases they act as the examining court. These reformed district courts are again presided over by a single member of the judiciary. Unlike justices of peace, he or she must be a trained lawyer.

Another change brought about by the 1988 Act was the creation of special provincial criminal courts. They try lesser offences, that is, those subject to a maximum prison term of three years. Previously such trials had been heard by the district courts, which had examined them, in violation of the principle that different stages of a case should be the responsibility of different courts. Along with the special provincial children’s, prison, employment and administrative courts, they complete the category of lower courts.

Courts at higher levels of the system are distinguished in several ways. They are collegiate, that is, they are presided over by a bench composed of several members known as judges. They consist of several divisions, concerned with different types of cases. And they also generally deal with appeals from lower courts rather than with first hearings.

An important exception to this last distinction is provided by the provincial courts which, in addition to hearing appeals from below, also try criminal offenses too serious to be heard by a lower court. The next level consists of the regional High Courts established as a result of devolution in the 1980’s, which replace the former regional courts. For matters relating exclusively to the region concerned they provide the final court of appeal. In cases where country wide-issues are involved, further recourse may be had to the High Court, established in 1977. Its criminal division also tries cases in certain fields, including falsification of the coinage, contamination of foodstuffs and medicines, and drug trafficking.

Rather than comparing the methods of the Spanish legal system to one of another country, I believe that the Pinochet case has had a direct effect on the legal system of Spain and various other countries. The former Chilean dictator General Augusto Pinochet is wanted by a Spanish High Court judge on charges of genocide and torture, and other crimes against humanity. Pinochet is currently under police guard after being arrested on an international warrant by Spanish magistrates. The judge is seeking to extradite him in the murders in Chile of Spanish citizens. Spain’s high court judges ruled that Spain has jurisdiction to investigate the case. This ruling by Spain’s National Court that Spanish courts could try people for offences committed under former military regimes in Chile and Argentina appeared to clear the way for a number of prosecutions. The extradition request must be approved by Spain’s cabinet before going through diplomatic channels to Britain. According to the Universal Declaration of Human Rights Article 14, a person can be extradited from asylum in a foreign country for a criminal account or from acts contrary to principles of the United Nations. Spain filed an expedition from Britain using the Law of European Community. Following the International Covenant on Civil and Political Rights, Spain is fully within its jurisdiction to try and punish the persecutor of genocide (Article 6). “The 1948 Convention on the Prevention and Punishment of the Crime of Genocide confirms that genocide, whether committed in time of peace or in time of war, is a crime under international law for which individuals shall be tried and punished.” This case must follow the proper litigation within the European community and thus effects the judicial procedures of numerous countries.

Finally the Supreme Court is concerned with resolving appeals, relating to the interpretation of legislation. Its decisions in such cases continue a body of case law. This is collected and published by the General Council of the Judiciary, for use by the lower courts as a source of guidance, additional but subordinate to legislation. The Court consists of five divisions which deal with civil, criminal, military, administrative and employment matters.
The initial conclusion I came to after reviewing the material and research on the Spanish legal system was that there was not a varied amount of publications on the topic. The most recent works were mainly about the Spanish integration within the European community. Secondly, the material that I did find focused on the structure, not the application and use of the court system. Upon evaluation of the legal system of Spain it has a considerable amount of structural efficiency with respectable decisions. However, A major problem that continued to plague the legal system was a severe shortage of funds, which made it impossible to keep up with an increasingly heavy caseload. 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.


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Bibliography
Cortada, James. (1971). United States – Spanish Relations, Wolfram and World War II.

Barcelona: Manuel Pareja.


Lancaster, Thomas, ; Prevost, Gary (Eds.). (1985). Politics and Change in Spain. New
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Lawlor, Teresa, ; Rigby, Mike. (1998). Contemporary Spain. New York: Longman.


Yannopoulos, George N., (1989). European Integration and the Iberian Economies.
London: Macmillan Press.