Spanish Politics and Society
The Institutions of Spanish Democracy: the
judiciary within the Spanish Political system.
Anthony Gilliland
Office 20.123
anthony.gilliland@upf.edu
Introduction
 The political system, the three branches
of power.
 Executive (government)
 Legislative (parliament or cortes generales)
 Judiciary
Contents
 Spain as “estado de derecho” (state of law) and the
concept of separation of powers.
 Spain’s judicial system
 The politicalisation of the judiciary, or questioning the
independence of Spain’s judiciary.
Spain as “estado de derecho”
 The constitution sets Spain as a state of law.
 Its origins are embedded in the European tradition of
codified legality, based on Roman law (as opposed to
common law). It has four main characteristics:
 Rule of law
 Division of powers and the independence of the judicial
power
 Administrative legality
 Guaranteed fundamental rights and freedoms
Actors and functions of the judicial
power
 The constitution describes the general principles which
govern the judiciary and its organizational structure.
 Key bodies
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Constitutional tribunal (Tribunal Constitucional)
Supreme court (Tribunal Superior)
High courts of Justice (Tribunales Superiores de Justicia)
Attorney general (Ministerio Fiscal)
Ombudsperson (Defensor del Pueblo)
General Council of the Judiciary (Consejo General del Poder
Judicial) as its regulatory body.
 Ley organica del poder judicial (LOPJ) 1985
The constitutional tribunal

Supreme interpreter of constitutionality in Spain.

Effectively above the traditional powers of state (exec, leg and
judicial). Independent of all other constitutional bodies, and is
subject only to the constitution. Authority is across state and
no right to appeal its decisions.

By constitution: Composed of 12 members of “recognised
standing” with at least 15 years of professional legal
experience. 8 Members are elected by the Cortes, 2 by the
government 2 and 2 by the CGPJ. Appointed for 9 year terms
with a third renewed every 3 years. Members are debarred
form holding any other representative office or public post or
form undertaking any other professional or commercial
activity.
The Supreme Court
 Originates in the 1812 Cadiz Constitution and is the only
centralised judicial body.
 It is the court of last resort, it can deal with all matters
except constitutional matters. The Constitutional
Tribunal deals with matters affecting the Constitution so
given the “rights and liberties” set out in the
Constitution, it often seems to act as court of last resort.
 For political reasons there is less controversy
surrounding this court than the Constitutional court or
the CGPJ.
High Courts of Justice
 Envisaged in the constitution but not created until 1989.
 Provide a structure of separation of powers at regional
level mirroring the one at state level. They are charged
with specific tasks including hearing of appeals against
laws passed at regional level.
 But must bow to the authority of the Supreme Court and
the Constitutional Tribunal.
 Lower ranking courts are Audiencias Provinciales.
Attorney general and
Ombudsperson

Attorney General or public prosecutor (Fiscal General del
Estado) and Ombudsperson are both mentioned in the
constitution but not created by law until 1981.

Attorney general:
 Main function is to promote adherence to the law and to defend
the public interest in a manner consistent with the law.
(Functions that clash with other bodies such as the CGPJ and the
ombudsperson).
 The post is nominated and dismissed by the government,
leading to accusations that it is overly dependent on government
patronage in spite of the legal requirements for the attorney
general to act independently and impartially. (The Attorney
General is in charge of public prosecution).
…
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Ombudsperson:
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Appointed for a period of 5 years by the Cortes to supervise
the activities of the administration and investigate citizens
complaints against abuses of their rights.
Considerable overlap between ombudsperson and attorney
general roles has made it a relatively unimportant
institution. Exacerbated by insufficient resources that
undermine its capability as guardian of citizens’ interests.
General Council of the Judiciary
(Consejo General del Poder Judicial)
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Envisaged by the constitution but set up and regulated by
organic law.
Body that regulates the judicial power, breaking away from
the links of the judicial power with the Ministry of Justice to
ensure independence from executive control.
It is made up of a president (who also acts as the president
of the supreme court) and 20 other members, all appointed
by the King but proposed by Parliament by a 2/3rds
majority.
Its functions are wide-ranging, from choosing the president
of the supreme court to the management and
administration of the judicial system: selection of judges
and magistrates, promotions, disciplinary action…
Is the Judiciary really independent
in Spain? The judiciary under fire…
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One of the critical issues during the transition and the setting
up of Spain's democracy was the independence of the
Judiciary.
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Constitution sets it out as such.
It has an independent regulatory body.
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However, the very mechanisms of ensuring that the judicial
power emanates from the people lends itself to political
interference in the judicial system.
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The Constitutional Tribunal under fire
 The Ombudsperson under fire
The CGPJ under fire

Made up of 20 members of recognised standing. Despite its
important role and need to be independent: 1985 Act
established that all are elected or proposed by parliament,
compromising independence.
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During PSOE governments with absolute majority in
parliament meant that it as the executive rather than the
legislative that elected its members, leading to accusations
of pro government bias.
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After that, a quota system informally introduced between
the main parties with parliamentary representation. What
does this mean?
The CGPJ under fire
 How does this affect independence?
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Effect on judges (the need to gain confidence of political
parties for promotion).
 Additional concerns:
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Concern over its budget allocation. Leading to accusations
of the judicial system being under resourced and prone to
political manipulation.
An optimistic point:
the judiciary and corruption
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The judiciary has been praised for its fight against corruption:
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Case of Deputy Prime Minister Alfonso Guerra.
Party finance and the case of Carlos Navarro and Jose Maria Sala.
Imprisonment of Bank of Spain Governor and case of Luis Roldan.

To note: the cases gained momentum in the latter years of the
PSOE government as its parliamentary majority disappeared, is
this coincidence?
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Recent cases of corruption also demonstrate the judiciary acting
independently and consolidating the “state of law”, or is there a
correlation between corruption cases…
Conclusions