Comprehensive Study Guide to the Spanish Constitution and State Institutions

Timeline of Constitutional Development and Key Legal Milestones

The historical evolution of the Spanish constitutional framework is marked by several foundational dates and subsequent legislative developments that shaped the current democratic state. This progression began with international influences, such as the approval of the Italian Constitution in $1947$ and the Fundamental Law of the Federal Republic of Germany in $1949$. Domestically, the pivotal shift started on November $20$, $1975$, with the death of General Franco, initiating a peaceful political transition from an authoritarian regime to a democracy. Shortly after, on November $22$, $1975$, Don Juan Carlos de Borbón was proclaimed King, assuming the Head of State according to the Law of Succession.

In July $1976$, the King appointed Adolfo Suárez as President of the Government, a move central to the path of political reform. This era also saw regional constitutional movements, like the approval of the Portuguese Constitution in $1976$. On December $15$, $1976$, a referendum was held for the Law for Political Reform, followed by the approval of Law $1/1977$ on January $4$, $1977$. This law was instrumental in establishing legal bases for political parties (including the Communist Party), universal suffrage, fundamental rights, and free elections. General elections followed on June $15$, $1977$, resulting in a victory for the UCD and the formation of the Cortes, which immediately began drafting a new constitutional text.

The Spanish Constitution was formally created in $1978$, establishing a social and democratic State of Law under a parliamentary monarchy. Key dates during its finalization included January $5$, $1978$ (publication of the constitutional draft); July $21$, $1978$ (approval by the Congress of Deputies); October $31$, $1978$ (final approval by both Chambers); December $6$, $1978$ (ratification by popular referendum); December $27$, $1978$ (royal sanction and promulgation); and finally, publication in the BOE on December $29$, $1978$.

Post-constitutional legal development continued with several Organic Laws (Ley Orgánica) and modifications. These include Organic Law $7/1980$ for religious freedom; Organic Law $3/1981$ creating the Ombudsman (Defensor del Pueblo); and Organic Law $4/1981$ regulating states of alarm, exception, and siege. In $1982$, Organic Law $1/1982$ protected the right to honor and privacy, while Organic Law $9/1983$ regulated the right to assembly. In $1984$, Organic Law $6/1984$ established the Habeas Corpus procedure. The mid-$1980s$ saw the LODE (Organic Law $8/1985$) for education and Organic Law $11/1985$ for trade union freedom. Law $9/1987$ addressed public administration employees.

The $1990s$ and $2000s$ brought significant changes, including the first constitutional modification of Article $13.2$ in $1992$ to allow European Union citizens passive suffrage in municipal elections. Organic Law $11/1995$ abolished the death penalty. Mandatory military service (the "mili") was phased out through laws in $1991$, $1999$, and Royal Decreets in $2001$, leading to its official suspension on December $31$, $2001$. Other notable laws include Organic Law $4/2001$ (Right of Petition), Organic Law $6/2001$ (Higher Education and university autonomy), and Organic Law $1/2002$ (Right of Association).

Recent milestones include the second constitutional modification in $2011$ (Article $135$) regarding budgetary stability and the third modification in $2024$ (Article $49$) to modernize language regarding disability. Reference texts for these studies include Molas ($2016$) and Balaguer Callejón ($2017$).

Dogmatic and Organic Parts of the Constitution

The Spanish Constitution is divided into two primary sections: the Dogmatic Part and the Organic Part. The Dogmatic Part focuses on the declaration of principles and the basic regime of rights and freedoms for citizens. It includes the Preliminary Title (Articles $1$ to $9$), which establishes the principles of the political regime, and Title One (Articles $10$ to $55$), which places the person and their dignity at the center of the political order.

The Organic Part establishes and structures the powers within the political community (legislative, executive, and judicial) and the organization of the State. It encompasses Titles II through X. Title II (Articles $56$ to $65$) regulates the Crown and the Head of State. Title III (Articles $66$ to $96$) details the Cortes Generales and the legislative power. Title IV (Articles $97$ to $107$) covers the Government and the Administration, while Title V (Articles $108$ to $116$) manages the relations between the Government and the Cortes Generales. Title VI (Articles $117$ to $127$) organizes the Judiciary. Title VII (Articles $128$ to $136$) sets the principles for Economy and Finance. Title VIII (Articles $137$ to $158$) regulates the territorial organization of the State, including Local Administration and Autonomous Communities. Title IX (Articles $159$ to $165$) defines the Constitutional Court, and Title X (Articles $166$ to $169$) establishes the procedure for constitutional reform.

Organic Law vs. Ordinary Law

The Constitution distinguishes between Organic Laws and Ordinary Laws based on the subject matter and the parliamentary majority required for their approval, modification, or repeal. Organic Laws require an absolute majority for approval. These laws develop fundamental rights and public freedoms, such as the right to life and physical integrity (Art. $15$), ideological and religious freedom (Art. $16$), personal freedom and security (Art. $17$), honor and privacy (Art. $18$), residence and circulation (Art. $19$), and expression (Art. $20$). Other rights governed by Organic Law include assembly (Art. $21$), association (Art. $22$), political participation (Art. $23$), effective judicial protection (Art. $24$), the principle of criminal legality (Art. $25$), the prohibition of Courts of Honor (Art. $26$), education (Art. $27$), trade union freedom and strike (Art. $28$), and the right of petition (Art. $29$).

Ordinary Laws require only a simple majority for approval, modification, or repeal. These laws cover duties and rights such as the duty to defend Spain and conscientious objection (Art. $30$), the duty to contribute to public spending (Art. $31$), the right to marriage (Art. $32$), the right to private property and inheritance (Art. $33$), the right of foundation (Art. $34$), the right and duty to work (Art. $35$), professional colleges (Art. $36$), collective bargaining (Art. $37$), and business freedom within a market economy (Art. $38$).

Guarantees and Suspensions of Rights

Chapter IV (Articles $53$ and $54$) establishes the guarantees of constitutional rights. Article $53$ ensures the direct application of fundamental rights without needing prior parliamentary legislation. It provides legislative guarantees, requiring rights to be regulated by law, and jurisdictional guarantees, allowing citizens to demand rights before ordinary courts. Article $54$ establishes extrajudicial guarantees through the Security Forces, the Public Prosecutor's Office, and the Ombudsman (Defensor del Pueblo).

Chapter V (Article $55$) details the suspension of rights. General suspension occurs during a declared state of exception or siege. Affected rights include personal freedom (Art. $17$), inviolability of domicile (Art. $18.2$), secrecy of communications (Art. $18.3$), freedom of residence (Art. $19$), freedom of expression and information (Art. $20.1$), assembly (Art. $21$), and the right to strike (Art. $28.2$). Individual suspension applies specifically to investigations of armed bands or terrorist elements. Under individual suspension, the maximum preventive detention period (Art. $17.2$) may be extended by up to $48$ additional hours, and the inviolability of domicile and secrecy of communications may be bypassed in cases of immediate urgency, provided there is subsequent judicial intervention and parliamentary control.

Configuration and Functions of the Crown

The King serves as the Head of State, and his functions are divided into institutional (Article $62$) and international (Article $63$) spheres. Institutional functions include sanctioning and promulgating laws, convening and dissolving the Cortes Generales, calling for elections and referendums, proposing and appointing the President of the Government, appointing and dismissing ministers, issuing decrees, conferring honors, and exercising the supreme command of the Armed Forces. He also exercises the right of grace (pardons for individuals, not general ones) and holds high patronage over the Royal Academies. Internationally, the King accredits diplomats, manifests the state's consent in international treaties, and declares war or makes peace with prior authorization from the Cortes.

The King's acts lack validity without a countersignature (refrendo). Only the President of the Government, relevant Ministers, or the President of the Congress of Deputies (for investiture matters) may provide this refrendo. The person who countersigns assumes legal and political responsibility for the act. The King is personally inviolable and holds no legal responsibility for his official acts. However, the King possesses economic and personnel autonomy, allowing him to distribute the budget for his household and appoint staff without a countersignature. Successive rules regarding regency and guardianship ensure the continuity of the Crown if the monarch is a minor or incapacitated.

The Constitutional Court

The Constitutional Court (Tribunal Constitucional) is the supreme interpreter of the Constitution and acts independently of other constitutional organs and the Judiciary. It has jurisdiction over the entire national territory and only acts upon request (rogated action). The court is composed of $12$ magistrates appointed by the King for $9$-year terms, with the body being renewed by thirds (four members) every $3$ years. The members are proposed as follows: $4$ by the Congress ($3/5$ majority), $4$ by the Senate ($3/5$ majority), $2$ by the Government, and $2$ by the General Council of the Judiciary. Members must be jurists of recognized competence with more than $15$ years of professional experience.

The Court's competencies include ruling on the constitutionality of laws (Resource and Question of Unconstitutionality), protecting fundamental rights (Resource of Amparo), and resolving jurisdictional conflicts between the State and Autonomous Communities or between state organs. Internally, it is organized into the Plenary ($12$ magistrates), two Rooms ($6$ magistrates each), and four Sections ($3$ magistrates each). Its sentences are published in the BOE and have the force of res judicata from the day following their publication.

The Cortes Generales: Congress and Senate

The Cortes Generales represent the Spanish people and exercise the legislative power, approve the state budget, and control the Government. They are an inviolable, bicameral body consisting of the Congress of Deputies and the Senate. Members serve $4$-year terms and are not bound by a mandatory mandate. Membership in the Congress is incompatible with membership in the Senate or a regional Assembly (with the exception that one can be both a Senator and a regional parliamentarian).

The Congress of Deputies consists of between $300$ and $400$ members (set at $350$ by LOREG). Seats are distributed by province, with Ceuta and Melilla selecting one deputy each, and the rest based on population using the D’Hondt system of proportional representation. Elections occur between $30$ and $60$ days after the end of a mandate, and the Congress must meet within $25$ days of the election.

The Senate is the chamber of territorial representation. Each peninsular province elects $4$ senators. Major islands (Gran Canaria, Mallorca, Tenerife) elect $3$ senators each, while smaller islands or groups elect $1$. Ceuta and Melilla elect $2$ each. Additionally, Autonomous Communities designate $1$ fixed senator, plus $1$ extra for every million inhabitants.

Parliamentarians enjoy inviolability for their opinions, immunity from arrest (except in flagrante delicto), and the privilege of being tried only by the Supreme Court (aforamiento). The Chambers operate through the Plenary and Committees. A Standing Committee (Diputación Permanente) of at least $21$ members exists in each chamber to ensure continuity and handle emergencies when the chambers are not in session.

The Ombudsman (Defensor del Pueblo)

The Ombudsman is the High Commissioner of the Cortes Generales, appointed for a $5$-year term to defend fundamental rights. Election requires a $3/5$ majority in both the Congress and the Senate. The institution is independent of the administration and continues to function even if the Cortes are dissolved. It is composed of the Ombudsman, two deputies, and various advisors. The Ombudsman can act of his own motion or upon complaints from any natural or legal person. He has the power to supervise all administrations, including the military, though he cannot interfere in judicial rulings. Instead, he refers judicial concerns to the Public Prosecutor or the General Council of the Judiciary.

The Government and Investiture

The Government consists of the President, Vice-Presidents, and Ministers, and collectively holds the executive power. The President directs the Government's action and is appointed through the investiture process (Article $99$). After consulting political groups, the King proposes a candidate. The candidate presents a program to the Congress and must obtain an absolute majority in the first vote. If unsuccessful, a second vote is held after $48$ hours requiring a simple majority. If no candidate is elected within $2$ months of the first vote, the King dissolves the Chambers and calls for new elections.

The Government responds solidarily to the Congress. Key mechanisms of control include the Motion of Censure (requires proposal by $1/10$ of deputies and absolute majority to pass) and the Question of Confidence (requires a simple majority). The Government is supported by organs like the Secretaries of State, the General Commission of Secretaries and Under-Secretaries, the Government Secretariat, and various Cabinets. Secretaries of State are superior organs responsible for specific sectors of activity and, while not members of the Government, assist in administrative execution.

Questions & Discussion

Preguntas examen-1

Question: According to the Spanish Constitution, can general pardons be granted? Answer: It is not possible to grant general pardons.

Question: According to Article $20$ of the Spanish Constitution, which rights are not recognized and protected? Answer: Rights related to the dissemination of protected intellectual content.

Question: According to Article $19$ of the Spanish Constitution, who has the right to freely choose their residence and to circulate through the national territory? Answer: Spaniards.

Question: Which of the following is not a characteristic of the Spanish Constitution of $1978$? Answer: It is a flexible Constitution (it is actually considered rigid).

Preguntas examen-2

Question: Who represents the Spanish People? Answer: The Cortes Generales.

Question: How many senators will be elected in each Province? Answer: Four.

Question: The Chambers function: Answer: In plenary and through Committees.

Question: When will the elections for the Congress of Deputies take place? Answer: Between thirty and sixty days from the termination of the mandate.

Preguntas examen-3

Question: The royal decree for the creation of a delegated commission must specify, in all cases (point out the incorrect one): Answer: The members of the Government that integrate it (this must be specified, the question likely asks to identify a non-mandatory or incorrectly described element).

Question: What does not correspond to the political function of the Government? Answer: Issuing provisions with the rank of law (as this is specifically a legislative function/potestas, though related to the executive's role in certain contexts, it is technically distinct from pure political direction).

Question: According to Article $112$ of the C.E., the President of the Government can propose a question of confidence. When is confidence understood to be granted? Answer: When the simple majority of the Deputies vote in favor.

Question: According to Article $101.2$ of the C.E., how long will a resigning Government continue in functions? Answer: Until the new Government takes office.