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Developments in Spanish Constitutional Law: The Year 2015 in Review

[Editor’s Note: This is the ninth installment in our Year-in-Review series. We welcome similar reports from scholars around the world on their own jurisdictions for publication on I-CONnect. Earlier year-in-review reports have been published on Italy, the Slovak RepublicRomaniaBelgiumSweden, the Czech RepublicLithuania and Indonesia. As we have done in the past, we extend our sincere thanks to our contributors for how much they have contributed to our learning and appreciation of public law around the world. Today we give great thanks to our contributors from Spain. –Richard Albert]

Encarnación Roca (Judge of the Spanish Constitutional Court), Camino Vidal (University of Burgos), Argelia Queralt (University of Barcelona), Enrique Guillén (University of Granada), Leonardo Álvarez (University of Oviedo)

In this Year-in-Review, we first show the distribution of cases submitted to the Spanish Constitutional Court (CC) then we illustrate the kinds of requests the CC has received in connection with fundamental rights. We next turn to a summary of a selection of the CC’s case law divided into three categories: (I) the organisation of state territory; (II) fundamental rights; and (III) sources of law.

 

Cases Submitted During 2015, Classified by Type

Constitutional challenges 42
Questions of constitutionality 113
Appeals for protection of fundamental rights 7,203
Positive conflicts of authority/responsibility/jurisdiction 5
Negative conflicts of authority/responsibility/jurisdiction
Conflicts between constitutional bodies
Conflicts in defence of municipal autonomy 2
Challenge to decisions without force of law 1
or resolutions of Autonomous Communities
Decisions on the constitutionality of international treaties
Preliminary rulings on Provincial tax laws 3
Total 7,369

 

Unsurprisingly, given the usual type of work addressed by the Spanish Constitutional Court (CC), the greatest volume of work is generated by requests for protection of fundamental rights.

The CC has delivered 272 decisions, the distribution of which is given below

 

Decisions Involving Fundamental Rights

Type of Process Decisions
Constitutional challenges 56
Questions of constitutionality 107
Appeals for protection of fundamental rights 96(+2)
Positive conflicts of authority/responsibility/jurisdiction 7
Negative conflicts of authority/responsibility/jurisdiction
Conflicts between constitutional bodies
Conflicts in defence of municipal autonomy 1
Challenge to decisions without force of law
or resolutions of Autonomous Communities
Decisions on the constitutionality of international treaties 5
Preliminary rulings on Provincial tax laws
Decisions delivered / matters resolved 272 (+2)

 

I. Organisation of State Territory

One of the most controversial topics in the Constitutional Court in 2015 has been the Catalan movement for sovereign independence from the Spanish State.

In ruling STC 31/2015, the Court decided the appeal of unconstitutionality filed by the President of the government against the Catalan Parliament’s Ley 10/2014, of 26 September, referring to non-referendum popular consultations and other forms of citizen participation. In its decision, the Court addressed whether the Autonomous Community of Catalonia could hold a consultation on independence from the Spanish state. The Constitutional Court declared the law unconstitutional, stating that authorisation of a referendum is under the exclusive jurisdiction of the Spanish state. Through STC 32/2015, applying that same doctrine, the Court declared the unconstitutionality of the President of Catalonia’s Decreto which called for the consultation on independence, and through STC 138/2015 it declared the measures taken in order for the Catalans to give their opinion on the future politics of Catalonia unconstitutional.

Ruling STC 259/2015 responded to an appeal lodged by the Spanish government against the Parliament of Catalonia’s Resolution 1/XI, 9 November 2015, which announced the beginning of the process of the creation of an independent Catalan state in the form of a republic, and proclaimed the beginning of a process to prepare the basis of the future Catalan constitution. The CC stated that said resolution weakened the national sovereignty of the Spanish people in article 1.1 of the Spanish Constitution and represented “an explicit repudiation of the need to comply with the constitution”, as any changes in the political status of Catalonia have to be made following the procedures for reforming the Spanish Constitution laid down in article 168 of the Constitution.

Rulings STC 137/2015 and STC 147/2015 addressed the calling of a referendum by the Autonomous Community of the Canary Islands, on the consequences that the search for oil and gas, begun by the Spanish government, could have on tourism on the island. The Constitutional Court, applying the same doctrine used in the case of the Catalan referendum, stated that jurisdiction for calling referendums lies with the Spanish state. Therefore, it declared the unconstitutionality of both the consultation rule and the decree calling the referendum passed by the Canary Islands Autonomous Community.

With ruling STC 46/2015 the Constitutional Court responded to the appeal of unconstitutionality lodged by the Spanish Ombudsman (Defensor del Pueblo) against the Catalan law regarding the Catalan Ombudsman. That law stated that this Catalan institution of defence of fundamental rights was the same as the National Apparatus for the Prevention of Torture, in fulfilling the provisions of the optional protocol of the Convention against torture and other cruel, inhuman, or degrading treatment or punishment, agreed in New York on 18 December 2002 and ratified by Spain in 2006. The Constitutional Court declared the unconstitutionality of the Catalan Law, affirming that only the Spanish state can design the National Apparatus for the Prevention of Torture.

In STC 26/2015, STC 30/2015, STC 107/2015 and STC 108/2015, the Constitutional Court addressed whether the Autonomous Communities were able to create a tax on bank deposits. This measure had been adopted by some Autonomous Communities after a drop in their finances following the recent economic crisis. The Spanish state felt that this measure could present a risk to the entry of capital into Spain and passed a law fixing tax on bank deposit interest at 0.0%. The Spanish state relied on its original jurisdiction for creating taxes (article 131.1 Spanish Constitution) and on their jurisdiction over general taxation (article 149.1.14). The Constitutional Court ruled autonomic taxes unconstitutional, under article 131.2 of the Spanish Constitution, which states that the power of the Communities to levy taxes is that recognised in the Constitution and the law.

II. Fundamental Rights

1. Acknowledgement of appeals against violation of fundamental rights. The ruling of the European Court of Human Rights in Arribas Antón v Spain on 20 January 2015 has begun to generate effects in the decisions of the Constitutional Court. That ruling was in response to a case which examined the compatibility of the European Convention on Human Rights with the admission criteria in article 5 of the Organic Law of the Constitutional Court which requires “special constitutional implications” to admit appeals for constitutional protection that are sent before the Court. The European Court of Human Rights required the Constitutional Court to better clarify the content of this clause and to justify its application in cases which are refused. The Constitutional Court started to apply this doctrine following STC 9/2015.

2. The right to work. Ruling STC 8/2015 responded to an appeal for protection of fundamental rights lodged against the labor reforms passed in Ley 3/2015. The appellants argued that this law, passed in order to invigorate the labour market in a situation of grave economic crisis, violated the right to work of article 35 and the right to collective negotiation of article 28 of the Constitution. It alleged that the law would reduce unions’ roles in collective negotiation, depriving the collective agreements of binding effects, and allowing business owner to unilaterally modify conditions of employment. Ruling STC 8/2015 applies the same doctrine from a previous appeal, answered by ruling STC 119/2014, agreeing with its conclusions: this reform of labour law does not contradict the Constitution.

This ruling was accompanied by a dissenting opinion shared by the judges Encarnación Roca, Valdés Dal-Re, Adela Asúa and the late Luis Ignacio Ortega. These judges were highly critical of the majority opinion passed by the Court stating that the majority decision “has decided to raise the adverse economic situation to the level of constitutional canon”, in other words, the crisis is an element of legitimising cuts to workers’ rights.

3. The right to political participation. In ruling STC 15/2015 the Constitutional Court ruled on the possible unconstitutionality of the Castilla-La Mancha Parliament’s Ley 4/2014. This law was aimed at saving costs during the severe economic crisis, reducing the number of deputies in the regional parliament from 53 to 33. The Constitutional Court found that such a reduction in deputies is not necessarily an attack on the proportionality required by the system of representation in the Spanish Constitution.

Rulings SSTC 1/2015, STC 19/2015 and STC 23/2015 responded to various appeals for constitutional protection alleging the violation of the right to political participation as a consequence of various legislating bodies of different Autonomous Community parliaments not admitting various motions. The Constitutional Court, applying its consolidated doctrine, finds this right violated where the the legislating body does not admit a motion based on political opportunity, they should instead carry out a formal process.

4. Freedom of expression. Ruling STC 177/2015 looked at whether the act of burning a portrait of the head of state constituted an exercise of free expression. The Court’s majority opinion found the act fell within the definition of “hate speech” and, as such, could not be considered as an exercise of freedom of expression. Consequently, it found that the penalty imposed of a 2700 Euro fine in application of article 490.3 of the penal code (Injurious offence to the Crown) is constitutional. Four judges dissented from this majority opinion finding that burning a photograph of the head of state must be considered an exercise of freedom of thought and expression. The dissenting judges noted that the Court’s majority opinion distorted the idea of hate speech and deviated from the European Court of Human Rights and North American judicial opinion.

5. Effective judicial protection. Ruling STC 232/2015, applying the legal opinion in ruling STC 145/2012, found that the effective judicial protection of article 24 of the Constitution was infringed due to the application of a legislative regulation whose incompatibility with the Right of Union had been previously found in a ruling in the Court of Justice.

See also rulings STC 7/2015, STC 16/2015, STC 17/2015, STC 20/2015, STC 34-38/2015, STC 40/2015, STC 51/2015, STC 52/2015 and STC 53/2015 on effective judicial protection. In these rulings the Constitutional Court had to correct the interpretation of the right to effective judicial protection which was delivered by the Supreme Court regarding article 89 of the Law of jurisdiction of Administrative Dispute which anticipates the prerequisites for admission of appeals to higher appellate courts.

6. Union freedom and freedom of expression and information. Ruling STC 203/2015 responded to the appeal for constitutional protection lodged by a union member against his being fired by his company. The company justified firing him because of written remarks expressed against a female worker who testified in court for the company. The appeal alleged infringement of rights to union freedom, and freedom of expression and information. The Constitutional Court found no infringement of said rights, understanding that the appellant’s words against the female worker unequivocally demonstrated his desire to question his colleague’s honesty, integrity, morals and professional dignity and as a result were not part of a labor dispute or union issue.

7. The right to individual freedom. Ruling STC 182/2015, in relation to STC 182/2015, addressed the problem of measures depriving people with mental disability of their freedom. The appellant had been subject to a custodial order to receive psychiatric treatment before being tried for alleged arson. While in prison he was found guilty. The judge, noting the extenuating psychiatric issues, ordered his admittance into a specialised center for treatment. The appellant felt that there was no reason to keep him in provisional custody, insofar as the judgement was not definite and was being contested. The Constitutional Court found in the appellant’s favour.

8. The right to education. In ruling STC 155/2015 the Constitutional Court ruled on the constitutionality of the reform of the Immigration Law 2/2009. Article 9.2 in that law recognised the right to access post-obligatory education and the system of public grants for “resident aliens”. The appellants felt that this provision contradicted the right to education in art. 27 of the Constitution, which recognises the right of all people to education, regardless of the possession of legal residential status in Spain. However, the Court did not find the challenged law unconstitutional, as it may be deduced from the remainder of the Immigration law, and the Education law, that the right to education is also guaranteed to non-resident aliens. Various dissenting opinions in this ruling make the difficulties in reaching a consensus on this matter clear. Consensus was only possible once the Court underlined the fact that denying illegal immigrants access to non-obligatory education is unconstitutional.

III. Sources of Law

The Spanish Constitution states in article 86.1 that decree-laws (ley-decreto) can only be used in cases of “extraordinary and urgent need”. Despite that, decree-laws have often been used in recent legislative sessions because, according to the government, the economic crisis demands rapid responses that cannot wait for the parliamentary process of passing a law. During 2015, the Constitutional Court has had occasion to rule on the constitutionality of various decree-laws.

1. Real Decreto-ley 20/2012, of the 13th July, measures to guarantee budgetary stability and promote competitiveness. With this decree, the Spanish government eliminated the extra Christmas payment to public sector workers in 2012. The appellants felt that (a) the decree did not meet the requirement for “extraordinary and urgent need” in article 86.1 & 2 of the Spanish Constitution, and (b) it regulated a matter that is subject to a law, given that article 103 of the Constitution states that the status of public sector workers must be done “by law”.

The Constitutional Court responded to this question in rulings STC 81/131/113/112/100/97/83/81, ruling that the decree is constitutional. Firstly, the court ruled that the decree was issued against a background of what the Court has called “an unfavourable economic crisis” which meets the requirement of “extraordinary and urgent need” in article 86.1 of the Constitution. Secondly, the Constitutional Court allowed that decrees could regulate matters already in law. What decrees could not do, is introduce “stable and permanent” regulation. In this case, the decree refers to a specific period of time: elimination of the extra payment to public sector workers for Christmas 2012.

2. Real Decreto-ley 28/2012, 30 November, measures to consolidate and guarantee social security. This decree sought to freeze pensions. The appellants felt that this decree (a) did not meet the requirement for “extraordinary and urgent need” in article 86.1 & 2 of the Spanish Constitution, and (b) violated the guarantee of non-retroactivity of regulations which injure individual rights recognised in article 9.3 of the Spanish Constitution, given that article 48.1 of the Social Security Law grants pensioners the right to receive the difference between the government forecast of inflation and the actual inflation figure at the end of the year.

The Constitutional Court ruled on this matter in rulings STC 49/144/135/134/ 133/132/131/130/129/128/127/126/125/123/122/121/120/119/118/117/116/109/95. In all of the rulings, the Court found that, in the first place, the decree in question was issued against a background of “an unfavourable economic crisis” which meets the requirement of “extraordinary and urgent need” in article 86.1 of the Constitution. These rulings reject the idea that these decree-laws are regulations that are detrimental to individual rights. According to the Court, there is no automatic right for pensioners to receive increases in their pension. The Court states that the law recognises such a right as dependent on budget legislation, i.e. if the budget legislation states that there is no increase, there is no increase.

3. Real Decreto-ley 8/2014, 4th July, the approval of urgent measures for growth, competitiveness and efficiency. The appellants allege that the decree, which modifies 28 legislative texts, lacks “extraordinary and urgent need” as stated in article 86.1 in the Constitution. In ruling STC 199/2015, the Constitutional Court declared the unconstitutionality of regulations that would come into force a year after their approval. For the Court, the fact that application of these regulations could be delayed by a year was proof that they cannot be considered urgent matters.

Suggested Citation: Encarnación Roca, Camino Vidal, Argelia Queralt, Enrique Guillén & Leonardo Álvarez, Developments in Spanish Constitutional Law: The Year 2015 in Review, Int’l J. Const. L. Blog, Dec. 1, 2016, at: http://www.iconnectblog.com/2016/12/developments-in-spanish-constitutional-law-the-year-2015-in-review

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Published on December 1, 2016
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