The ordinary judge predetermined by law in Spain
The judge in Spain
The Spanish Constitution configures the judicial power as an independent power, being the only power of the State to which the name of power is given.
The Spanish judicial system configures as one of the essential pillars of the Administration of Justice the determination of the ordinary judge predetermined by the Spanish law, as a preposition of the jurisdiction and arising directly from the separation of powers.
Going deeper into this idea, the Spanish Constitution configures the judicial power as an independent power, signed in Title VI of the Spanish Constitution
“Of the Judicial Power”, being the only power of the State to which the name of power is given. Neither the executive, represented by the State Government, nor the legislative, by the general courts, enjoy such an honour.
The aforementioned article 117 of the Spanish Constitution deals with the judicial power and the exercise of the jurisdictional function which, due to its importance, deserves a literal transcription
“Article 117 of the Spanish constitution law
- Justice emanates from the people and is administered on behalf of the King by Judges and Magistrates who are members of the judiciary, independent, irremovable, responsible and subject only to the rule of law.
- Judges and Magistrates in Spain may not be separated, suspended, transferred or retired, except for one of the reasons and with the guarantees provided by law.
- The exercise of jurisdictional power in all types of processes, judging and enforcing what is judged, corresponds exclusively to the Courts and Tribunals determined by law, according to the rules of jurisdictions and procedure established by them.
- The Courts and Tribunals in Spain shall not exercise any functions other than those indicated in the previous section and those expressly attributed to them by law in guarantee of any right.
- The principle of jurisdictional unity is the basis of the organisation and functioning of the Courts. The law shall regulate the exercise of military jurisdiction in the strictly military sphere and in cases of state of siege, in accordance with the principles of the Constitution.
- Emergency courts are prohibited”.
However, it is not only an element of the judiciary, but also a fundamental right for citizens. In this regard, Article 24.2 of the Constitution states that
“Article 24.2 of the Spanish constitution law
- Furthermore, everyone has the right to an ordinary judge predetermined by law, the right to a defence and the assistance of counsel, the right to be informed about the charges against them, the right to a public trial without undue delay and with full guarantees, the right to use evidence relevant to their defence, the right not to testify against themselves, the right not to confess guilt and the right to be presumed innocent.
Spanish law shall regulate the cases in which, for reasons of kinship or professional secrecy, there shall be no obligation to testify about allegedly criminal acts”.
The conjunction between both precepts has been addressed by the Constitutional Court on countless occasions, from which we can draw the following consequences:
1º the judicial body called upon to hear a particular case must have been created and its criteria for conferring jurisdiction established before the occurrence of the act being prosecuted.
2° shall be regulated by law, prohibiting the possibility of inferior regulations.
3° the ad hoc regulation of the criteria of jurisdiction and competence is prohibited
4° in the competent judge or court in Spain must comply with the requirements indicated in the first paragraph of Article 117 above, reaching, although with less rigour, the composition of the collegiate bodies.
The sanction for the no observance of the requirements indicated above can produce the nullity of the process, in addition to the imposition of the disciplinary regime for the Judge or Magistrate.
In the next entry of this blog we will address the procedure for the challenge of judges and magistrates in the civil field, a procedure that extends the law to any court.