ISBN: 978-94-035-0575-6

November 2018, 320pp, Paperback

mm

Constitutional Law in
Spain

Second Edition

By
Agustín Ruiz Robledo

Derived from the renowned multi-volume
International Encyclopaedia of Laws, this very
useful analysis of constitutional law in Spain
provides essential information on the country’s
sources of constitutional law, its form of
government, and its administrative structure.
Lawyers who handle transnational matters will
appreciate the clarifications of particular
terminology and its application. Throughout the
book, the treatment emphasizes the specific
points at which constitutional law affects the
interpretation of legal rules and procedure.
Thorough coverage by a local expert fully
describes the political system, the historical
background, the role of treaties, legislation,
jurisprudence, and administrative regulations.
The discussion of the form and structure of
government outlines its legal status, the
jurisdiction and workings of the central state
organs, the subdivisions of the state, its
decentralized authorities, and concepts of
citizenship. Special issues include the legal
position of aliens, foreign relations, taxing and
spending powers, emergency laws, the power of
the military, and the constitutional relationship
between church and state. Details are presented
in such a way that readers who are unfamiliar
with specific terms and concepts in varying
contexts will fully grasp their meaning and
significance.
Its succinct yet scholarly nature, as well as the
practical quality of the information it provides,
make this book a valuable time-saving tool for
both practising and academic jurists. Lawyers
representing parties with interests in Spain will
welcome this guide, and academics and
researchers will appreciate its value in the study
of comparative constitutional law.

Order your copy at lrus.wolterskluwer.com/store or contact at

International-sales@wolterskluwer.com
For More Information on the International Encyclopaedia of Laws go to www.IELaws.com
Spain
by
Agustín Ruiz Robledo
Departamento de Derecho Constitucional, Universidad de Granada

This monograph has been reviewed by the Author and is up-to-date

as of July 2018.

2018

Constitutional Law – Suppl. 139 (2018) Spain – 1

Published by:
Kluwer Law International B.V.
PO Box 316
2400 AH Alphen aan den Rijn
The Netherlands
E-mail: international-sales@wolterskluwer.com
Website: lrus.wolterskluwer.com
Sold and distributed in North, Central and South America by:
Wolters Kluwer Legal & Regulatory U.S.
7201 McKinney Circle
Frederick, MD 21704
United States of America
Email: customer.service@wolterskluwer.com
Sold and distributed in all other countries by:
Air Business Subscriptions
Rockwood House
Haywards Heath
West Sussex
RH16 3DH
United Kingdom
Email: international-customerservice@wolterskluwer.com

The monograph Spain is an integral part of Constitutional Law in the International Encyclopaedia of
Laws series.

Printed on acid-free paper.

ISBN 978-90-654-4944-3
Constitutional Law was first published in 1992.

Robledo, Agustín Ruiz. ‘Spain’. In International Encyclopaedia of Laws: Constitutional Law, edited by
André Alen & David Haljan. Alphen aan den Rijn, NL: Kluwer Law International, 2018.
This title is available on www.kluwerlawonline.com
© 2018, Kluwer Law International BV, The Netherlands
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise,
without written permission from the publisher.

Permission to use this content must be obtained from the copyright owner. More information can be
found at: lrus.wolterskluwer.com/policies/permissions-reprints-and-licensing
Printed in the United Kingdom.

2 – Spain Constitutional Law – Suppl. 139 (2018)

The Author

Agustín Ruiz Robledo studied Law at the Universities of

Salamanca and Granada, obtaining a first-class honours degree
from the latter in 1981. In 1986 he was awarded his doctorate
for his thesis on the Autonomous Community of Andalusia,
which received the Extraordinary Prize for Doctoral Theses
in the Law Faculty. He gained the position of Associate
Professor in Constitutional Law at Granada University in
1988 and in 2009 he became a full professor in the same
university. He has combined his teaching work with other
legal activities; he was a supplementary Magistrate in the
Provincial High Court of Granada (1988–1991), Consultant
to UNO, Chile (December 1989), and has been Director of
the Analysis Advisory Council of the Presidency of the Andalusian Parliament (1996–2004).
He has widened his studies and research in several centres outside Spain, including
the Universities of Dublin, Montreal, London, Florence, and Bayreuth, amongst others.
He was a visiting academic at University College Dublin in 2011–2012. He has published
more than a hundred works on his speciality; published in Spain, Italy, Germany,
the Netherlands, the United Kingdom, and Colombia. Among the most important of
his books being: La Comunidad Autónoma de Andalucía, El Estado autonómico, El
ordenamiento jurídico andaluz, Bibliografía de Derecho canadiense, El Síndrome
de Fabrizio (Notas Jurídicas de política cotidiana), and El derecho fundamental a
la legalidad punitiva. He has taken part in a considerable number of national and
international conferences, speaking on his special topics: the Autonomous State, Parliamentary
Law, the relationship between European and national legal systems, comparative
federalism, etc. In addition, he frequently publishes in the daily press, especially in
El País and in the newspapers of Grupo Joly.

Constitutional Law – Suppl. 139 (2018) Spain – 3

The Author

4 – Spain Constitutional Law – Suppl. 139 (2018)

Acknowledgements

I must thank Professor André Alen for his trust in commissioning me to write this
book and to Wouter Pas, member of the Institute for Constitutional Law of the
Katholieke Universiteit Leuven and Auditor of the Belgian Council of State, for his
generosity in putting my name forward for this task. I would also like to express my
gratitude to the Kluwer Editorial and Mr David Haljan for their stoic patience in
putting up with my continuous delays in finishing a work that, at times, seemed
overwhelming. That I have finally succeeded in finishing it, it has been thanks to
the support of a great group of people, beginning with Ms Bridgit McQue, who has
turned my text into elegant, legal English; to professor Ramón Orza Linares and to
Cristobal del Moral Peralta, two good friends who revised the original and drew up
the index; to Professor Thomas Würtenberger, who gave me academic shelter in his
admirable Institut für Offentliches Recht of the University of Freiburg im Breisgau
for two summers; and to Inmaculada Ramos Tapia, who has always been willing to
shoulder the greater part of the logistics of our family. A heartfelt thanks to
everyone.

Constitutional Law – Suppl. 139 (2018) Spain – 5

Acknowledgements

6 – Spain Constitutional Law – Suppl. 139 (2018)

Table of Contents

The Author 3

Acknowledgements 5

List of Abbreviations 17
TABLE OF INTERNATIONAL INSTRUMENTS 17
TABLE OF SPANISH STATUTES 17
GENERAL ABBREVIATIONS 19
NOTE ON CASE LAW 19

General Introduction 21

§1. AN OVERVIEW OF SPANISH CONSTITUTIONAL HISTORY 21

§2. THE DRAFTING OF THE 1978 CONSTITUTION 29

§3. FORM OF GOVERNMENT 31

I. The Social and Democratic State of Law 31
A. The State of Law 31
B. Superior Values of the Legal Order 32
II. Parliamentary Monarchy 32
III. The Autonomous State 34

§4. THE TERRITORY OF THE STATE (GEOGRAPHICAL DATA) 36

§5. POPULATION (DEMOGRAPHIC DATA) 38

Part I. The Sources of Law 43

Chapter 1. The Constitution 43

§1. GENERAL CHARACTERISTICS 43

I. A Consensual Normative Constitution 43
II. A Final Constitution with a Complex Structure 44
III. An Open Text: The Real Constitution 46

§2. REFORM OF THE CONSTITUTION 47

I. General Questions 47

Constitutional Law – Suppl. 139 (2018) Spain – 7

Table of Contents

II. The Ordinary Reform Procedure 50

III. The Extraordinary Reform Procedure 51

Chapter 2. International Treaties 54

§1. THE CONCLUSION OF TREATIES 54

§2. THE INTEGRATION OF TREATIES IN THE SPANISH LEGAL SYSTEM 57

Chapter 3. Laws and Norms with the Force of Law 60

§1. CLASSES OF NORMS WITH THE FORCE OF LAW 60

I. Ordinary Law 62
II. Organic Law 62
III. The Legislative Decree 64
IV. Decree-Law 66
V. Autonomous Law 68

§2. THE INTER-RELATIONSHIP BETWEEN NORMS WITH THE FORCE OF

LAW 69

Chapter 4. Jurisprudence 71

Chapter 5. Unwritten Law 72

§1. CUSTOMARY LAW 72

§2. THE GENERAL PRINCIPLES OF LAW 72

Chapter 6. Regulations 74

Chapter 7. Codification, Interpretation and Publication 75

§1. CODIFICATION 75

§2. INTERPRETATION 75

§3. PUBLICATION 76

Part II. The Form of Government 79

Chapter 1. A General Overview 79

§1. INTRODUCTION 79

8 – Spain Constitutional Law – Suppl. 139 (2018)

 Table of Contents

§2. POLITICAL PARTIES AND INTEREST GROUPS 80

§3. MISCELLANEOUS: REFERENDUMS AND POPULAR INITIATIVES 85

Chapter 2. The Head of State 88

§1. DESIGNATION 88

§2. LEGAL STATUS OF THE KING 91

§3. FUNCTIONS OF THE KING 93

Chapter 3. The State Parliament 95

§1. THE COMPOSITION OF PARLIAMENT 95

I. Imperfect Bicameralism 95
II. The Congress of Deputies 96
III. The Senate 99

§2. LEGAL STATUS OF MEMBERS OF PARLIAMENT 102

I. The Mandate of Members of Parliament 102
A. The Nature of the Parliamentary Mandate 102
B. Acquiring and Losing the Status of Member of Parliament 102
II. Individual Parliamentary Prerogatives 104
A. Concept 104
B. Inviolability 104
C. Immunity 104
D. Special Jurisdiction 105
III. Rights and Duties of Members of Parliament 105
IV. Collective Prerogatives 106

§3. THE FUNCTIONS OF PARLIAMENT 106

I. The Legislative Function 106
II. The Budgetary Function 108
III. The Function of Creation and Controlling the Government 109
IV. Other Functions 111

§4. THE OPERATION OF PARLIAMENT 111

I. The Internal Organization of the Chambers 111
A. The Organs of Government 111
B. Plenary Sessions and Commissions 112
CThe Permanent Deputations 113
II. The Operational Norms 113
A. Norms of the Parliamentary Timetable 113
B. The Norms of Debates and Voting 114

Constitutional Law – Suppl. 139 (2018) Spain – 9

Table of Contents

Chapter 4. The Government of the Nation 115

§1. THE CONSTITUTIONAL FORM OF THE GOVERNMENT 115

§2. THE COMPOSITION OF THE GOVERNMENT 115

I. The Members of the Government 115
II. The Election of the President of the Government 116
III. The Appointment of the Other Members of the Government 118
IV. The Resignation of the Government 118

§3. THE LEGAL STATUS OF MEMBERS OF THE GOVERNMENT 119

§4. THE FUNCTIONS OF THE GOVERNMENT 120

I. The Political Direction of the State 120
II. The Executive Function and the Regulatory Power 121
III. The Functions of the President of the Government 122

§5. THE OPERATION OF THE GOVERNMENT 123

§6. THE PUBLIC ADMINISTRATION 124

Chapter 5. Judicial Power and the Constitutional Court 125

§1. JUDICIAL POWER IN THE CONSTITUTION 125

I. Jurisdictional Power 125
II. The Democratic Legitimacy of Judicial Power: The Principle of
Submission to the Constitution and the Law 126
III. The Principle of Independence 127
IV. The Principle of Responsibility 127
V. The Principle of Jurisdictional Exclusivity 128
VI. The Principle of Jurisdictional Unity 128

§2. THE SPANISH JUDICIAL ORGANIZATION 129

I. The Organizing Criteria of the Court Scheme 129
II. The Territorial Division of Judicial Power 129
III. The Judicial Hierarchy 130

§3. THE GOVERNMENT OF THE JUDICIARY: THE GCJP 131

I. Justification 131
II. Composition 131
III. Functions 132

§4. POPULAR PARTICIPATION IN THE ADMINISTRATION OF JUSTICE 133

§5. THE MINISTRY OF PUBLIC PROSECUTIONS 134

§6. THE CONSTITUTIONAL COURT 135

10 – Spain Constitutional Law – Suppl. 139 (2018)

 Table of Contents

I. Constitutional Nature and Position 135

II. Composition and Structure of the Constitutional Court 136

§7. THE COMPETENCES OF THE CONSTITUTIONAL COURT 138

I. The Control of the Constitutionality of Laws and Norms with the
Force of Law 138
A. General Aspects 138
B. The Action of Unconstitutionality 141
C. The Question of Unconstitutionality 141
II. The Preliminary Appeal of Unconstitutionality of Treaties and
Autonomous Statutes 142
III. The Conflicts of Competences and the Government’s Challenge
to the Provisions and Rulings of the Autonomous Communities 143
IV. The Conflict of Power Between Constitutional Bodies 144
V. Conflicts in Defence of Local Autonomy 145
VI. Conflicts in Defence of Foral Autonomy 146
VII. Appeals for Constitutional Protection of Fundamental Rights 146
VIII. The Execution of the Judgments of the Constitutional Court 149

Chapter 6. Independent Organs 151

§1. CONSULTATIVE ORGANS: THE COUNCIL OF STATE 151

§2. ORGANS OF CONTROL 152

I. The Court of Auditors 152
II. The Ombudsman 153
III. Other Organs in Defence of Fundamental Rights 154

§3. ECONOMIC ORGANS 154

Part III. The State and Its Divisions 155

Chapter 1. The Form of the State: The Autonomous State 155

§1. A DIFFERENT FORM OF STATE: NEITHER UNITARY NOR FEDERAL 155

§2. THE NEO-AUTONOMOUS STATE 159

Chapter 2. Autonomous Communities 160

§1. THE FORMATION OF THE AUTONOMOUS COMMUNITIES 160

§2. THE DISTRIBUTION OF COMPETENCES BETWEEN THE STATE AND THE

AUTONOMOUS COMMUNITIES 161
I. Overview 161
II. The Exclusive Competences on a Matter 163

Constitutional Law – Suppl. 139 (2018) Spain – 11

Table of Contents

III. The Competences of the State over Legislation and of the

Autonomous Communities over Implementation 164
IV. State Competences on Basic Legislation and the Competences of
the Autonomous Communities on Complementary Legislation
and Implementation 166
V. The Competences of the Autonomous Communities According to
Specific Matters 169
A. Introduction 169
B. The Competences of Self-government and Public
Corporations 169
C. The Competences over Public Security and Justice 170
D. Economic Competences 172
E. Competences over Transport and Public Works 173
F. Competences in the Matter of Labour 174
G. Competences over Health, Social Security, and Social
Services 174
H. Competences over Education, Research, Culture, and Sports 175
I. Competences over Territorial Planning Policy and the
Environment 176

§3. COOPERATION BETWEEN THE STATE AND THE AUTONOMOUS

COMMUNITIES: PREVENTION AND RESOLUTION OF CONFLICTS 177
I. The Principle of Collaboration 177
II. Techniques of Functional Collaboration: Cooperation Agreements
and Conventions 178
III. Techniques of Organic Collaboration 179
IV. The Extraordinary Instruments of State for the Resolution of
Conflicts 181
A. Laws of Harmonization 181
B. State Coercion 182
V. The Ordinary Resolution of Conflicts: The Constitutional Court 182

§4. THE FINANCING OF THE AUTONOMOUS COMMUNITIES 183

I. Introduction 183
II. The Financial Resources of the Autonomous Communities in
Common Regime 186
A. The Ordinary Resources Received from the State 186
B. The Autonomous Community’s Own Resources 187
C. Resources Received as Solidarity Payments 188

§5. THE INTERNAL STRUCTURE OF THE AUTONOMOUS COMMUNITIES 189

I. General View 189
II. The Autonomous Parliament 190
A. Composition and Electoral System 190
B. Internal Organization and Operation 191
C. Parliament’s Functions 192
III. The Executive 192

12 – Spain Constitutional Law – Suppl. 139 (2018)

 Table of Contents

A. The Pre-eminence of the President 192

B. Functions of the President 193
C. The Governing Council 194
D. Political Control over the Executive 194
IV. Other Autonomous Institutions 195

Chapter 3. Local Authorities 197

§1. GENERAL VIEW 197

I. A Brief History 197
II. Constitutional Principles of Local Government 198

§2. THE MUNICIPALITIES 201

I. Introduction 201
II. Local Institutions 201
III. Municipal Competences 203

§3. THE PROVINCES 204

I. Introduction 204
II. The Provincial Institutions 205
III. Provincial Competences 206

§4. OTHER LOCAL GOVERNMENT BODIES 207

Part IV. Citizenship and Fundamental Rights 209

Chapter 1. Spanish Nationality 209

§1. CONSTITUTIONAL PROVISIONS ON NATIONALITY 209

§2. THE LEGAL REGULATION OF SPANISH NATIONALITY 209

I. The Acquisition of Nationality 209
II. The Loss of Spanish Nationality 210

§3. THE RELEVANCE OF SPANISH NATIONALITY 211

I. The Constitutional Position of Spaniards and Aliens 211
II. The European Citizenship 211
III. The Paradox of Spanish Nationality 212

Chapter 2. The General Regime of Fundamental Rights 213

§1. THE CONCEPT OF FUNDAMENTAL RIGHT 213

I. Definition 213
II. Normative 213
III. Classification of the Rights in Title I 214

Constitutional Law – Suppl. 139 (2018) Spain – 13

Table of Contents

§2. FUNDAMENTAL RIGHTS: PAST AND PRESENT 215

I. Direct Efficacy and the Double Dimension of Fundamental
Rights 215
II. Entitlement to Constitutional Rights 216
III. The Consequences of Fundamental Rights Between Private
Persons 217

§3. THE GUARANTEES OF FUNDAMENTAL RIGHTS 218

I. The Normative Guarantees of Fundamental Rights 218
A. The Essential Content 218
B. The Special Reform Procedure 219
C. The Reservation to Organic Law 219
II. The Jurisdictional Guarantees of Fundamental Rights 219
A. The Appeal Process Before the Ordinary Courts 219
B. The Appeal for Constitutional Protection of Fundamental
Rights Before the Constitutional Court 221
C. International Guarantees, in Particular, the Appeal to the
ECtHR 221
III. Institutional Guarantees 223
IV. Restrictions on Rights 223

§4. THE INTERPRETATION OF FUNDAMENTAL RIGHTS 225

Chapter 3. The Principle of Equality 227

§1. THE AIMS OF THE PRINCIPLE OF EQUALITY 227

§2. THE PRINCIPLE OF EQUALITY AS A MANDATE OF THE PUBLIC

POWERS 228
I. Equality in Law 228
II. Equality Before the Law 229

§3. THE RIGHT TO EQUALITY 230

Chapter 4. Civil and Political Rights 231

§1. PERSONAL RIGHTS 231

I. The Right to Life and Personal Integrity 231
II. Personal Liberty 234
A. Detention 234
B. Provisional Custody 235
C. The Right to Penal Legality 236
III. Privacy 236
A. The Rights to Honour, Privacy and Identity 236
B. Rights Instrumental in the Protection of Privacy: The
Inviolability of the Home and Secrecy of Communications 239
C. Computer Freedom/Data Protection 241

14 – Spain Constitutional Law – Suppl. 139 (2018)

 Table of Contents

IV. Freedom of Residence and Movement 241

V. The Right to Contract Matrimony 242

§2. INTELLECTUAL FREEDOMS 243

I. Ideological Freedom 243
II. Religious Freedom 244
III. Freedom of Opinion 246
A. Freedom of Expression 247
B. Freedom of Artistic and Scientific Creation 248
C. Academic Freedom 248
D. Freedom of Information 249
IV. The Right to Education and Freedom of Teaching 250
V. The Universities’ Right to Autonomy 253

§3. POLITICAL RIGHTS 253

I. The Right of Assembly 253
II. The Right of Association 254
III. The Right to Participate in Public Affairs 256
A. The Right to Political Participation Directly or Through
Representatives 256
B. The Right of Access to Representative Public Office 257
C. The Right of Access to Public Employment 257
IV. The Right of Petition 258

§4. PROCEDURAL RIGHTS 259

I. Effective Legal Remedies 259
A. The Right of Access to the Courts 260
B. The Right to a Judgment Founded on Law 261
C. The Right to Execution of Legal Decisions 262
II. The Right to a Defence 263
III. Procedural Guarantees of Article 24.2 263
A. The Right to Appear Before the Ordinary Judge
Predetermined by Law 263
B. The Right to Public Trial Without Undue Delay 264
C. The Guarantees of the Accused in Criminal Proceedings 265

Chapter 5. Economic, Social and Cultural Rights 266

§1. CONSTITUTIONAL RIGHTS 266

I. Property Rights 266
A. The Right to Private Property and Inheritance 266
B. The Right to Create a Foundation 267
C. Free Enterprise 268
II. Employment Rights 268
A. The Right to Work and the Free Choice of Occupation 268
B. The Fundamental Right to found Trade Unions and
Collective Negotiation 269

Constitutional Law – Suppl. 139 (2018) Spain – 15

Table of Contents

C. The Right to Adopt Measures in Collective Conflicts and the

Fundamental Right to Strike 270

§2. THE GUIDING PRINCIPLES OF SOCIAL AND ECONOMIC POLICY 272

I. The Legal Value of the Guiding Principles 272
II. Classification of Guiding Principles 273
A. Social Rights 273
B. The Mandates to Protect Specific Social Groups 274
C. Other Objectives of Public Policies 275

§3. PROTECTION OF MINORITIES 276

Chapter 6. Constitutional Duties 278

§1. OVERALL VIEW 278

§2. CLASSIFICATION 279

I. The Duty to Defend Spain 279
A. Military Obligations 279
B. The Duties of Civil Protection 279
II. Financial Duties 280
III. Other Constitutional Duties 282

Chapter 7. Constitutional Protection of Foreigners 284

§1. THE LEGAL POSITION OF FOREIGNERS 284

I. The Legal Situation of Aliens in Spain 284
II. The Rights and Liberties of Aliens 285

§2. EXTRADITION AND THE RIGHT TO ASYLUM 286

Chapter 8. The Suspension of Rights 288

§1. THE COLLECTIVE SUSPENSION OF RIGHTS: EXCEPTIONAL STATES 288

I. State of Alarm 288
II. State of Emergency 289
III. State of Siege 290

§2. INDIVIDUAL SUSPENSION OF RIGHTS: THE FIGHT AGAINST TERRORISM 290

Selected Bibliography 293

Index 299

16 – Spain Constitutional Law – Suppl. 139 (2018)