legal system


legal system
   Following the approval of the new constitution of 1978, the Spanish legal system, which under Franco was not only anachronistic but largely dependent on an all-powerful executive, was modernized and brought more in line with that of other western European democracies. This process was carried out mainly in the mid-1980s under the reforming administrations of Felipe González. The present system is largely governed by two major laws, the Organic Law of the Judiciary (1985 and 1995) and the Law of Staffing and Demarcation (1988).
   Justice is administered within a single national system structured according to territorial and functional criteria. The state is organized into municipalities, partidos judiciales (two or more municipalities), provinces and autonomous communities, each level with its own institutions, and the system is divided according to five branches of justice, each regulated by its own specific codes (códigos). These branches are civil, criminal, administrative, social and military (the latter normally applying only to members of the armed forces). In spite of moves towards decentralization in Spain, the legal system remains largely centralized and hierarchical.
   The General Council of the Judiciary is the highest governing body of the judiciary. Its powers lie mainly in the area of appointments, including the right to propose its own president, two members of the Constitutional Tribunal and judges serving in the Supreme Court. It also has responsibility for the training, location and promotion of judges, as well as disciplinary affairs. The Department of the Attorney General of the State (Ministerio Fiscal) has two basic functions. First, it ensures that the system of justice functions in accordance with the law and in the interests of the general public; and, second, it ensures that the courts are independent. The department is entrusted with the protection of the civil rights of citizens in the constitution; thus, it is empowered to initiate appeals for protection before the Constitutional Tribunal. Moreover, it oversees the bureaucracy of the prosecution service and the nationwide career structure of the public prosecutors, which is quite separate from that applying to judges. At its head is the attorney general of the state, who is responsible for the operation of the whole system and nominally in charge of the entire corps of prosecutors. The administration of justice operates at four levels, national, regional, provincial and local. At the national level, the major institutions are the Supreme Court (Tribunal Supremo) and the National Court (Audiencia Nacional). The Supreme Court, which has jurisdiction throughout Spain, is the highest court of justice in the land for all except constitutional matters. The Supreme Court is composed of five divisions, each headed by its own president, and consisting of a fixed number of judges. These are the civil, criminal, administrative, social and military divisions. One of the major functions of the civil and criminal divisions is to hear complaints against the prime minister, the presidents of both houses of parliament and other high-ranking public servants. The administrative division hears complaints made about high-ranking public bodies as opposed to individuals. Among other things, social courts deal with labour disputes.
   The National Court is divided into three divisions: criminal, administrative and social. The first is the court of last appeal in such cases as crimes committed abroad (involving possible extradition), the forging of foreign currency, drugtrafficking and criminal acts against the monarchy and other state institutions. In the 1990s, the National Court has been involved in high-profile cases such as the GAL affair.
   Courts were first established in all regions only after the creation of the autonomous communities post-1979. High courts of justice (tribunales superiores de justicia) are composed of three divisions: joint civil/criminal, administrative and social. Acting as a civil division, the joint court is a court of sole instance in complaints against the president and ministers of the regional parliament and government. The administrative division hears cases against acts or decisions of the regional government, its president and ministers. Administrative, social and juvenile courts also function at the provincial level. Local courts operate at the provincial, subprovincial and municipal levels. The provincial courts (audiencias provinciales) are located in provincial capitals. They deal only with civil and criminal matters. The civil division deals largely with appeals against sentences passed by lower level courts in the province, while the criminal division covers both serious criminal offences referred to it directly and appeals against sentences of lower criminal courts. It is in these courts that the jury system began to be implemented in 1996.
   Many local courts (juzgados) are located in the main town of a partido judicial. These include the courts of first instance, which deal with civil affairs and normally hold the local civil register, and the courts of instruction, which deal with minor criminal offences as well as habeas corpus matters. In small towns, these two types of court function as one. The equivalent of English magistrates" courts, the so-called "peace" courts, are located in every municipality, where there is not already a court of first instance or instruction. In practice, they are to be found in most municipalities with populations of under 6,000. These courts deal with minor civil and criminal offences. One of their other civil functions is to maintain the civil register if this has been delegated to them by the appropriate court of first instance. The Ministry of Justice (Ministerio de Justicia) is quite separate from the institutions described above, but is required to liaise with them and to ensure that all the legislation in this area serves to protect fundamental rights. It is also its responsibility to initiate legislation in the whole range of areas related to the administration of justice. Over the last decade, one of its main tasks has been to ensure that Spanish legislation conforms to European law.
   Further reading
   - Heywood, P. (1995) The Government and Politics of Spain, London: Macmillan (one of the most authoritative accounts available).
   - Newton, M.T. with Donaghy, P.J. (1997) Institutions of Modern Spain, Cambridge: Cambridge University Press (the standard reference work on this topic).
   MICHAEL T. NEWTON

Encyclopedia of contemporary Spanish culture. 2013.

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