Spain: Quis Custodiet Ipsos Custodes?: The struggle for
jurisdiction between the Tribunal Constitucional and
the Tribunal Supremo
Leslie Turano*
Indistinct jurisdictional boundaries—Civil liability of judges—Liability of judges
for breaching constitutional rights—Supreme Court ordered Constitutional Court
judges to pay damages of 500 euros each—Rule of law
A recent case in Spain1 has raised Juvenal’s eternal question,2 and in doing
so has split the legal community and, according to commentators, left it
‘‘breathless.’’3 What began as a complaint about administrative procedure
has given way to a notably bitter battle for jurisdictional boundaries between
the Tribunal Constitucional (TC) and the Tribunal Supremo (TS). The Civil
Chamber (Sala de lo Civil) of the TS found that 11 of the 12 members of the
TC, including President Manuel Jiménez de Parga, had committed gross professional negligence by the summary way in which they had handled an
application for review, causing the applicant ‘‘moral damage as a citizen.’’
The judges were each ordered to pay damages of 500 euros. It is hoped that
the confrontation between the TC and TS will push the Cortes, the Spanish
legislature, to make clear once and for all the respective areas of competence
of Spain’s two highest courts, something which has not yet been done.
Aspiring constitutional lawyer José Luis Mázon Costa was disgruntled at
the way in which the TC appointed its junior legal staff. Instead of selecting
young lawyers on the basis of their results in the nationally-held Civil Service
examination (concurso-oposición,) as was required by law,4 members of the TC
preferred to appoint their assistants ‘‘a dedo,’’ that is, privately (or, more cynically, ‘‘through connections’’). Mazón challenged the legality of the TC’s
practice in an application for review brought before the TS. The Court rejected
his application,5 whereupon he applied to the TC for a declaration that his
doi:10.1093/icon/moi057
* School of Law, King’s College London; I wish to acknowledge the support of the Centre of European Law,
King’s College London. Email: [email protected]
1
STS 1/2003, Jan. 23, 2004 (Civ.)
2
SATIRES, VI, 347.
3
Julio M. Lázaro, El Supremo condena a 11 magistrados del Constitucional a indemnizar a un
abogado, EL PAÍS, Jan. 22, 2004; Pablo Salvador Coderch, Instituciones mal pensadas, EL PAÍS,
Mar. 22, 2004.
4
2/1979 L.O.T.C. art. 97.1: ‘‘El TC estará asistido por un Cuerpo de Letrados constituido por medio de
concurso-oposición . . . .’’ A concurso-oposición is called at the TC’s discretion.
5
STS 139/1999, June 14, 2002 (Admin.).
ª The Author 2006. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I·CON, Volume 4, Number 1, 2006, pp. 151–162
151
152 Int’l J Con Law, Vol 4, No 1 (Jan 2006)
L. Turano
right to due process had been violated by the TC itself. When the Court
refused, in an interlocutory judgment,6 even to entertain his case, Mazón
returned to the TS, this time with a claim against the TC for wilful negligence
(negligencia dolosa) in having refused to give his application due consideration.
This case would have been unremarkable but for the TS’s unexpected
decision,7 which blew apart the fissure that had been opening up between
the two courts for over twenty years. Following the TS’s decision, an indignant TC issued a public statement accusing the TS of invading its jurisdiction
and undermining the Constitution.
What is remarkable about this whole affair is the bitter, almost personal,
tone of the official statements from both institutions: the language is so
pointed as to be barbed, with both parties verging on calling the other incompetent. Moreover, the TS has insinuated that the TC judges may have comitted a criminal offence. It seems surprising that such a heated exchange
could have arisen from what turned out to be an ordinary case involving a
particularly vexatious litigant. But if the affair is set in the historical context
of relations between the two courts, it becomes clear that Mazón had simply
served the proverbial last straw.
1. Historical antecedents
Created by the Constitución Española 1978 (CE), the TC is the first court of its
kind in Spanish history. Earlier constitutions did not provide for a separate
court to adjudicate on the constitutionality of laws enacted by the Cortes.
Spain shared post-revolutionary France’s distrust of judges; a rigid adherence
to Montesquieu’s doctrine of separation of powers would not admit the possibility of the judiciary’s interference with parliamentary will.8
That attitude was bound to change after almost 40 years of dictatorship
under Franco. The drafters of the Constitution of 1978 decided, in line with
other modern constitutions of the post-World-War II era (but in contrast to
6
TC, Auto, July 18, 2002.
7
STS 1/2003, Jan. 23, 2004 (Civ.).
8
F. Fernández Segado, El recurso de amparo como vı́a de generación conflictual entre el Tribunal
Supremo y el Tribunal Constitucional, 98 REVISTA DE LA FACULTAD DE DERECHO DE LA UNIVERSIDAD
COMPLUTENSE 105, 111 (2003). During the Second Republic, however, the Constitution of 1931
did set up a Tribunal de Garantı́as Constitucionales (Court of Constitutional Guarantees), but the
institution was short lived and appeared to coexist peacefully with the TS in that there were no
arguments over invasions of exclusive jurisdiction. This may have been a result of the government’s restrictive view of the TCG’s role; in a political world as uncertain as that of 1930’s Spain,
President Manuel Azaña was loath to recognize the independence of any powerful body with the
potential to disrupt his government’s legislative program. This is evident from an exchange he
had had about the Court with the rightist leader Gil Robles, in which Azaña agreed that his
own views were closer to those of former dictator Primo de Rivera’s. See STANLEY G. PAYNE, SPAIN’S
FIRST DEMOCRACY: THE SECOND REPUBLIC, 1931–1936 126 (Univ. of Wisconsin Press 1993).
Spain
153
the American model),9 to create a new body, separate from the ordinary hierarchy of the judiciary, whose sole preserve would be the interpretation of the
Constitution.10
The preference for a separate court with exclusive jurisdiction in constitutional cases was born partly from a lack of confidence in the judiciary. The
Poder Judicial was at the time populated by judges appointed under Franco,
who, even if they did not share the dictator’s antipathetic views on fundamental rights, had had no training in evaluative interpretation. Their habits
of thought were characterized by a legalist formalism more appropriate to private law, unsuited to a task needing a creative and politically sensitive interpretation.11 In a neat twist, the antijudicialist response to an ancien régime
which in the early 19th century had prevented the creation of a constitutional
court was now the driving force behind the conception of one.
2. ‘‘Quis custodiet ipsos custodes?’’
It is axiomatic in Spanish law that the TC is the supreme authority in constitutional matters,12 but it is not the only court before which citizens may seek
protection of their constitutional rights. Article 53.2 CE provides that the citizen may obtain protection through the ordinary courts if, during the litigation of a civil wrong or criminal act, the question of rights arises. But the
article also makes explicit that only the TC may grant a declaration of rights
(recurso de amparo), which accords with that Court’s exclusive power to interpret the Constitution. This is further supported by article 123.1 (Tı́tulo VI on
the Poder Judicial), ‘‘The Supreme Court, with jurisdiction in all Spain, is the
superior court in all matters except constitutional.’’ Moreover, ordinary
courts are both protective of and bound by the fundamental rights set out
in the second chapter of the CE, as paragraph 1 of the same article makes
clear when it asserts that the rights set out in Capı́tulo II bind all public
powers. This corresponds with the TC’s position as the ultimate guardian of
constitutional rights: it can hear claims of violation of rights by ordinary
9
See SAMUEL E. FINER, VERNON BOGDANOR & BERNARD RUDDEN, COMPARING CONSTITUTIONS 29–32
(Oxford Univ. Press 1996).
10
In Spain, the TC is not considered a part of the judiciary; that is, it is separate from the appeal
hierarchy, although the judges sitting on the TC are usually jurists who have risen through the
ranks of the judiciary itself (though some are appointed directly from practice or from academia).
11
12
Fernández Segado, supra note 7, at 108, 111.
L.O.T.C. art. 1: ‘‘The Constitutional Court, as the supreme interpreter of the Constitution, is
independent from all other constitutional bodies and is subject only to the Constitution and the
present Organic Law.’’ (‘‘El Tribunal Constitucional, como intérprete supremo de la Constitución, es
independiente de las demás órdenes constitucionales y está sometido sólo a la Constitución y a la
presente Ley Orgánica.’’). Art 164.1 C.E. provides that TC decisions are decisive and may not be
appealed: ‘‘Las sentencias del TC . . . tienen el valor de cosa juzgada [res judicata] . . . y no cabe recurso
alguno contra ellas.’’
154 Int’l J Con Law, Vol 4, No 1 (Jan 2006)
L. Turano
judges and courts and it can review judicial decisions which have failed to
address a violation arising from government or legislative action.13
But the TC itself has recognized the limits of its own jurisdiction and the
supremacy of the TS in non-constitutional matters: its reading of the Ley
Orgánica del Tribunal Consitucional (LOTC) Art 1.1 is that the TC is the
‘‘guardian and interpreter of the Constitution, but not of the rest of the legal
system,’’14 which suggests that the Court is able to distinguish between constitutional matters and violations of ordinary law.15 So each Court is equally
supreme in its respective jurisdiction: in questions of constitutionality,
although the TS may hear such cases, the TC has the last word and, conversely, where the legality of a particular act is concerned, the TS is the final
arbiter. As Francisco Rubio Llorente points out, the superiority of a court
resides in the fact that its decisions may not be appealed.16
The matter of jurisdiction would therefore seem unproblematic, except for
the fact that in practice it is often difficult, if not impossible, to separate the
constitutionality of an act from its legality. As the TC has admitted, ‘‘the unity
of the legal system and the supremacy of the Constitution do not tolerate the
contemplation of both categories as if they were distinct and isolated from one
another’’; 17 hence the number of cases over the years in which the TS has felt
that the TC has interfered with its jurisdiction. The latter body’s decisions
appear to blur the distinction between review and appeal and hence to challenge the supremacy of the TS in its own realm. The battle to safeguard their
superiority in their respective jurisdictions has led them, paradoxically, to
assert control over each other in the form of judicial review. In answering
Juvenal’s question, the law is not explicit.
Both courts are separate, then, but not equal. In theory, the TS has the
last word on the legality of an action, but the supremacy of the Constitution
over ordinary law means that any decision by the ordinary court, including
the TS, can be struck down by the TC.18 Yet nowhere is it manifest that
the Cortes has empowered the former to supervise the actions of the latter.
The public powers referred to in article 53.1 CE may be taken in their
ordinary sense to mean the executive, legislature and judiciary, in which
13
Fernández Segado, supra note 7, at 117-118.
14
STC 74/1984, June 27, 1984 (F.J.2d)
15
Fernández Segado, supra note 7, at 120.
16
Francisco Rubio Llorente, El recurso de amparo constitucional, in LA JURISDICCIÓN CONSTITUTIONAL
ESPAÑA 125, 131(TC-CEC 1995).
EN
17
STC 50/1984, Apr. 5, 1984, fund.jur. 3: ‘‘ . . . pues la unidad del ordenamiento y la supremacı́a
de la Constitución no toleran la consideración de ambos planos como si fueran mundos distintos e
incomunicables.’’
18
C.E. art. 53.1: ‘‘The rights and freedoms . . . bind all public powers’’ (‘‘Los derechos y
libertades . . . vinculan a todos los poderes públicos.’’).
Spain
155
case the TC is excluded.19 But the rule of law demands that the TC be bound
under article 53.1. The conundrum is: if all public bodies—and these must
include the TC—are bound to respect fundamental rights, who can bring
the TC to heel if it has violated those rights, given that the TC itself is the
supreme adjudicator in these matters? Who guards the guardian of the
Constitution?
This was one of the constitutional questions raised by the recent cases. The
other was whether the members of the TC were subject to the same civil liability as every other public officer, indeed as every other citizen. The TC is governed by the Constitution and by the LOTC, yet, unlike the Organic Law
which governs the judiciary,20 the LOTC is silent on the liability of members
of the TC in civil actions. Again, however, if one applies the principle of the
rule of law and assumes that they are liable, then the TS must, as the supreme
adjudicator in civil liability, have power to review the decisions of the TC.
At least, this is the TS’s argument.
3. The Mazón case
What is striking about the TS’s decisions in the Mazón affair is that they contain clear contradictions: in the first decision21 the Court agrees with the TC’s
counsel that Mazón’s case has no merit, yet in the second decision22 the Court
condemns the TC’s refusal to entertain the same matter when brought in the
form of an application for a declaration of rights.
In the first instance, Mazón had argued three points: first, that the
practice by TC senior members of appointing its junior members privately
rather than selecting them from public examination was contrary to
article 97.1 LOTC; secondly, that in doing so it put obstacles in the way of
citizens’ exercise of their right of equal access to public office under article
23.2 CE;23 thirdly, that it had failed in its duty under the Ley de la Jurisdicción
Contencioso-Administrativa, which requires public bodies to fulfil their
contracts and obligations.24 The Court determined that what Mazón was
seeking to impugn was an omission, not an act.25
19
See supra note 11.
20
6/1985 L.O.P.J. art. 411: ‘‘Los Jueces y Magistrados responderán civilmente por los daños y
perjuicios que causaren cuando, en el desempeño de sus funciones, incurrieren en dolo o culpa.’’ The
TS agrees that the reference to judges does not include those of the TC since they do not form
part of the judiciary; STS 1/2003, Jan. 23, 2004 (Civ.), fund.jur. 2.
21
STS 139/1999, June 14, 2002 (Admin.), Francisco Marı́n Castán dissenting.
22
STS 1/2003, Jan. 23, 2004 (Civ.).
23
‘‘ . . . tienen derecho a aceder en condiciones de igualdad a las funciones y cargos públicos . . . .’’
24
29/1998 L.J.C.A. art. 29.1.
25
STS 139/1999, June 14, 2002 (Admin.) fund.jur. 1.
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L. Turano
In considering whether the TC had failed to act, the majority26 gave a wide
interpretation of article 97.1: the paragraph does not impose an exclusive obligation to hire only concursantes (those sitting a public exam), since elsewhere
the law provides for the use of special attachés (‘‘personas adscritas’’) who may
come to the TC via a different route.27 Moreover, there is no obligation on the
TC to call a concurso-oposición (public exam). The obligation, if there were one,
would be to concursantes who had actually sat an exam and who had a legitimate right to be considered fairly, since the obligations under the LJCA
were confined to those owed to specific persons. If the TC failed to call a concurso, no obligation to aspiring lawyers materialized, since the obligation could
only come into existence once the exam had been sat, and it would be owed
only to those who had passed. Therefore, there was no omission: as long as
the TC postponed calling a concurso, there would be no duty incumbent on it.28
The TS was keen to underline that the TC is unlike other constitutional
organs. The independence of the TC articulated in article 1.1 LOTC is reinforced by article 2.2 which provides that the Court governs its own organization.29 Accordingly, it would be contrary to this independence if the TC were
constrained by an inflexible rule concerning personnel - the spirit of the legislation is that the TC itself is the most competent, indeed the only, body to
decide how and when to appoint its staff.30 The legislation must mean that
the TC has discretion in these matters. So not only is the TC not under a
duty to call a concurso-oposición, if it does, it is not obliged to fill all its vacancies from the pool of concursantes.31
Moreover, discretion marks the limits of the TS’s power to intervene. The
Court determined that judicial review did not permit the judiciary to substitute its own views in areas where the public body in question has discretion,
for that would be to invade that body’s jurisdiction.32 The question of the TC’s
hiring practices was therefore not justiciable.
Finally, with respect to the question of whether article 23.2 CE had been
violated, the Court held that the right concerned was not an automatic right
of access to public office but a right to participate in public life according to
regulations and without discrimination.33 By providing regulations on the
26
Justices Ramón Trillo Torres and Nicolás Maurandi Guillén, dissenting; see infra note 34.
27
30/1984 L.R.F.P. art. 29.2.
28
Funds.jur. 3, 6.
29
‘‘El Tribunal Constitucional podrá dictar sobre su propio funcionamiento y organización, ası́ como
sobre el régimen de su personal y servicios . . . ,’’ fund.jur 6.
30
Fund.jur. 5.
31
Fund.jur. 6.
32
Id.
33
Id. Justices Trillo and Maurandi, dissenting, differed from the majority on the ambit of article
97.1 LOTC. They argued that it was not possible that the TC has absolute discretion as to
whom it admits—it cannot, for example appoint a general secretary who is not a qualified lawyer.
Spain
157
hiring practices of the TC by means of a Ley Orgánica,34 the Cortes had set a
legitimate boundary on the exercise of that right.
Mazón’s next move was quixotic, even bizarre: he challenged the TC to
condemn its own actions. He submitted an application to the TC for a declaration of rights, but in it he demanded that the entire TC abstain for having an
interest and be substituted by another, (in his view) impartial, court. The formal application was addressed to ‘‘the Constitutional Court, constituted so as
to guarantee an impartial hearing.’’35 In addition, he called for a declaration
‘‘against the TC’’ and demanded the very same Court press the government to
introduce legislation forcing the formation of an impartial forum in order to
hear his case.
Given that Mazón was essentially asking the TC to seek its own dissolution,
it is difficult to characterize his application as other than frivolous and vexatious. It is also difficult not to support the brisk treatment meted out to him:
the TC smartly dismissed his application in a curt response: ‘‘the inadmissibility of this application is agreed unanimously, in view of the fact that it is not
addressed to this Constitutional Court but to another, hypothetical, court that
might substitute it.’’36
Mazón returned to the TS, this time with a civil claim before the Sala de lo
Civil, seeking damages of 11,000 euros against 11 of the 12-member
Court37 for wilful, alternatively gross, negligence. To the astonishment of
the legal community and the public in general, the TS allowed his claim for
the latter and awarded him compensation.38 In a judgment drafted by the President of the Sala 1a de lo Civil Ignacio de la Sierra, the Court rejected the idea
that the TC members, as judges, might be liable under the LOPJ,39 and instead
held that they were subject to a general liability under article 1902 of the
Likewise, the law puts a limit on the kinds of lawyers who may become letrados in the TC—they
must be derived from the pool of concursantes and have a specialist knowledge of public law.
Therefore, it was unlawful for the TC not to appoint from a pool of concursantes, but this did not
amount to a violation of the right of access to public office under article 23.2 CE.
34
Organic laws give legal effect to rights and other matters provided by the Constitution (C.E.
art. 81). Because they govern constitutional matters, their approval is subject to different formal
requirements, such as the need for an absolute, as opposed to a simple, majority. See ELENA
MERINO-BLANCO, THE SPANISH LEGAL SYSTEM 31 (Sweet & Maxwell 1996).
35
‘‘Al Tribunal Constitucional. Sustiuido por formación que garantice un examen imparcial,’’ TC, Auto,
July 18, 2002. In Spanish, the use of the subjunctive form of the verb (garantice) indicates a
hypothetical action.
36
‘‘El Pleno acuerda por unanimidad la inadmisión del [recurso de amparo], por cuanto que el recurso no
se dirige a este Tribunal Constitucional sino a otro hipotético que le sustituya. En consecuencia procede el
archivo de las presentes actuaciones,’’ supra note 31. The Court also characterized Mazón’s claim as
lacking the necessary clarity required under article 49 LOTC.
37
Justice Jorge Rodrı́guez Zapata had been absent when the TC rejected Mazón’s claim.
38
In view of the lack of intention, the Court awarded half the compensation sought, 5,500 euros.
39
See supra, note 19.
158 Int’l J Con Law, Vol 4, No 1 (Jan 2006)
L. Turano
Código Civil (CC).40 This conclusion was derived from the broad application of
principle that every person’s freedom is limited by civil responsibility, that
indeed freedom and responsibility are inseparable, and that no one is
exempt.41 The liability under article 1902 is extra-contractual, and a person
may claim exemption only if specifically permitted by legislation.
The Court then examined the TC’s actions to see if they exhibited the characteristics required for a claim of civil liability to succeed.42 It rejected outright the TC’s claim that the application was not directed to it but to
another, hypothetical court as ‘‘utterly wrong.’’43 Given that, in the opinion
of the TS, the application was indeed directed to the TC, there arose under article 1.7 CC a mandatory duty (‘‘deber inexcusable’’) on the TC to resolve the
case, a duty, the TS held, which, unlike that imposed by the LOPJ, was not
limited to members of the judiciary but was applicable to all sectors of the
legal system.44 The Court proceeded in rather grandiose terms to justify its
reading of the paragraph to include the TC: one of the great triumphs of civilization, it said, was that man will desist from taking the law into his own
hands to vindicate his rights, in exchange for the court’s promise to settle
the matter fairly, and therefore the court in every case had a duty to give
the claimant a fair hearing.45
The Court accepted that a declaration of inadmissibility can discharge the
duty to ‘‘resolve’’ a claim, but only when the claimant has been given reasons
(motivación) for the dismissal. And here it criticized the TC’s terse declaration
as insufficient, even flippant: the TC declared itself disinclined to hear the
case ‘‘without adducing any reason whatsoever which might seriously justify
its negative action, except to say that application was directed to a hypothetical court.’’46 The Court pointed out that the TC’s own jurisprudence had
determined repeatedly that article 24.1 CE guarantees the right to obtain
an judicial response which is founded on law, reasonable and appropriate
to the claim (‘‘una respuesta judicial motivada, razonable y congruente con su
40
STS 1/2003, Jan. 23, 2004 (Civ.).
41
‘‘libertad y responsibilidad deben ser en esta contienda jurı́dica inseparables, e se debe absolutamente
disentir del dogma medieval ‘The king can do no wrong’,’’ fund.jur. 2.
42
Namely, an unlawful act or omission causing damage quantifiable in monetary terms and the
existence of a causal link between the act and the damage.
43
‘‘absolutamente incierto,’’ fund.jur. 4.
44
‘‘ . . . como principio de eficacia imperativa para todos los sectores del ordenamiento jurı́dico,’’
fund.jur. 4.
45
‘‘ . . . uno de los grandes triunfos de la civilización . . . es que el hombre abandone el amparar su derecho
por sus propias fuerzas a cambio de que el juez tome siempre en consideración el estudio de las petitciones
de las partes, resolviéndolas en todo caso,’’ fund.jur. 4.
46
‘‘ . . . sin aducir razón alguna que fundamente o motive seriamente dicha posición negativa . . . salvo la
existencia de un hipotético Tribunal,’’ fund.jur. 4.
Spain
159
pretensión’’).47 The minimal requirement to give reasons was indispensable in
order to prevent illogical or arbitrary decisions with no basis in law. This
response, the Court held, fell far short of that. Therefore, the TC had failed
in its duty to resolve Mazón’s petition, giving rise to an omission actionable
in civil law.
The prejudice suffered by Mazón was ‘‘moral damage’’ (‘‘daños morales’’)
caused by the unlawful denial of constitutional protection, in that ‘‘without
doubt, his beliefs, as a citizen of a democratic state that . . . advocates justice
as a supreme value, had been shaken.’’48 The nexus between unlawful omission and damage caused was clear and undeniable and had not been disrupted by any mitigating conduct by the claimant himself.49 So it appears
that the TS did not regard Mazón as vexatious. Or, if it did, it regarded such
claimants as also deserving the right to be given reasons. Although it noted
his ‘‘use of expressions unbecoming to legal courtesy,’’ it did not consider
that these amounted to an abuse of the court so as to defeat the legitimacy
of his application. The only conclusion to be drawn from this decision is
that the TS fully expected the TC to dismiss Mazón’s application, but it also
expected the Court to explain to the claimant why it would not seek its own
dissolution. The judgment turned exclusively on a matter of procedure, all
but one of the judges apparently refusing to consider the substance of Mazón’s
claim as having any bearing on the TC’s conduct.50
Following delivery of the judgment, the TC issued a statement51 the tone of
which can be described as one of barely contained apoplexy. The TS, it said,
had judged ‘‘in terms of serious and unequivocal censure’’ the legality of
the TC’s decision, and in doing so had ‘‘put in serious danger the jurisdictional
function of constitutional protection and had invaded the TC’s exclusive
47
Id.
48
‘‘ . . . no cabe la menor duda de que se le ha causado un daño moral, por lo menos desde el punto de vista
de hacer que se tambaleen sus creencias como ciudadano de un Estado social y democrático, que . . .
propugna la justicia como valor superior . . . ,’’ fund.jur. 5.
49
Fund.jur. 6.
50
One judge, however, addressed substance. In a dissenting opinion (STS 1/2003, Jan. 23, 2004
(Civ.), special vote) Justice Francisco Marı́n Castán expressed the view that it was obvious why the
TC had not gone to great pains to explain: the application was irrational, requesting the Court
simultaneously to decide a matter and to stand aside. Moreover, the application requested that
the Court do something outside its powers, that is, urge the government to introduce legislation
creating a new court. There was only one reasonable response to such an application: a terse
dismissal. He even suggested that Mazón had committed the offence of bringing the court into disrepute (calumnias e injurias) and should be prosecuted accordingly. Justice Marı́n’s view was taken
up by over fifty academics in an article appearing in the national press, who argued that the TC
did not act unlawfully and that the TS lacked jurisdiction to make this sort of judgment, Liborio L.
Hierro Sánchez-Pescador, Enrique Peñaranda Ramos, Juan A. Lascuraı́n Sánchez, and 50 signatures, ¿La última palabra?, EL PAÍS, Feb. 13, 2004.
51
TS, Acuerdo, Feb. 3, 2004.
160 Int’l J Con Law, Vol 4, No 1 (Jan 2006)
L. Turano
jurisdiction.’’52 The question of whether resolutions decided by the TC are
lawful (‘‘adjustadas a Derecho’’) is a prohibited matter (‘‘materia vedada’’): not
even the TS has jurisdiction. Moreover, the TC denounced the ‘‘obvious
contradiction’’ that the TS had condemned the Court simultaneously for
not giving a response and for giving a response that lacked sufficient reason.
The TC concluded that, notwithstanding the TS’s assertions that it was adjudicating on a matter of procedure, it had, by scrutinising a decision of the TC,
de facto placed itself in a position above that of the Constitutional Court and
had usurped the former’s exclusive powers. Since under article 163.4 CE
and article 1 LOTC the TC has the final word on declarations, it would not
tolerate this unwarranted extension of the appeal process in a constitutional
case which was now res judicata.53 In other words, it regarded the TS’s
hearing of Mazón’s civil claim as an improper use of private law procedure
to circumvent the TC’s jurisdiction and obtain an appeal by the back door.54
4. A grudge too far
Whatever one’s views about the merits of Mazón’s petition to the TC, the
question remains—why did the TS choose this particular refusal on which
to take the TC to task? The TC annually rejects 97% of the 7,000 applications
for declaration, many of which, owing to the heavy workload, must be
dismissed in a summary fashion.55 Angel Garcı́a Fontanet has suggested
52
‘‘ . . . al enjuiciar la fundamentación dada por el Pleno a una Resolución de inadmission, pone en serio
peligro la función jurisdiccional de amparo invadiendo competencias que sólo al Tribunal Constitucional
corresponden,’’ TS, Acuerdo, Feb. 3, 2004, para. 1.
53
‘‘ . . . rechazando . . . con rigor la invasión de nuestra jurisdicción que supone la utilización de la vı́a civil
como indebida prolongación del recurso de amparo,’’ para. 3.
54
However, the TC refrained from commenting on one surprising aspect of the Mazón
decision which has revealed discord within the TS itself. In its assessment of the TC’s purported
negligence, the TS found that the TC had not brought ‘‘adequate legal knowledge’’ to bear on
the case, and therefore had acted with ‘‘inexcusable negligence’’ (‘‘negligencia inexcusable’’). The
striking thing is that ‘‘negligencia inexcusable’’ is the phrase used in the Código Penal under
article 447 to define the criminal offence of prevaricación (delivering an unfair judgment in the
discharge of public duties)-ordinary negligence becomes an offence when ‘‘a magistrate or judge
either through serious carelessness or inexcusable ignorance delivers a judgment or resolution
which is manifestly unjust’’ (‘‘El Juez o Magistrado que por imprudencia grave o ignorancia
inexcusable dictara sentencia o resolución manifestamente injusta’’) and it brings a disqualification
from public office for two years, C.P. art. 447.2. This insinuation by the TS’s Sala de lo Civil
perplexed others in the TS, notably Deputy Attorney General José Marı́a Luzón. He and other commentators have noted that the use of the phrase could not have been accidental and questioned
why the Sala de lo Civil had not suggested criminal proceedings despite using expressions which
clearly raised the issue. Luzón sent a report to the Sala de lo Penal (the Criminal Chamber of the
TS) in which he described the TC’s decision as not only legal but reasonable and correct. The
Sala de lo Civil was reported as receiving the deputy attorney general’s remarks with ‘‘astonishment and indignation.’’ See Javier Pérez Rojo, Ignorancia inexcusable, EL PAÍS, Feb. 7, 2004.
Spain
161
that the Constitution created a source of friction when it gave the TC power to
review decisions of the TS under article 53.2 and that it is a continuing affront
to the TS that this Johnny-come-lately (‘‘recién llegado’’), whose only pedigree
is the short-lived Tribunal de Garantı́as Constitucionales, should have precedence.56 He also attributes the confrontational attitude to a feeling among
TS justices that they are treated as second-best: most public lawyers aspire
to join the TC for its superior working conditions (e.g., an unlimited budget
and no mandatory retirement age) although only a few will succeed. If this
is indeed the case, then the TS might seem to be taking a grudge too far.
But perhaps it is reasonable, when looking at the history of cases in which
the TC has undercut a TS decision, to regard the Mazón case as an opportunity for the TS to vent its frustration at the way in which the TC has exercised
its jurisdiction.
Harsh words are nothing new where the two courts are concerned. The TC
had hardly been up and running when, in 1984, the TS (Sala de lo Penal)
required the members of the TC to give evidence before a criminal investigation; implicit in this was a criticism of the TC’s support of the government’s
appropriation of the embattled firm Rumasa.57 Ten years later, when the
TC had quashed a decision by the TS and reinstated the finding of a lower
court in a paternity case,58 members of the TS’s Sala de lo Civil sent a memorandum to King Juan Carlos I expressing their disquiet at this invasion of their
jurisdiction. The justices even staged a protest march across the street to the
offices of the TC before being turned back by the President of the Poder
Judicial.59 More recently, and with resonance for the present case, the TC condemned a decision by the TS in a privacy case involving a celebrity, Isabel
Preysler, and the gossip magazine Lecturas as lacking sufficient reason and
therefore violating the claimant’s right to a fair hearing under article 24.1
CE. In a complex series in which the two courts batted Ms. Preysler’s complaint back and forth, the TS ignored orders from the TC, first to find for the
claimant and to award her 60,000 euros;60 the TS obeyed the second time,
but reduced the award to a contemptuous 150 euros.
In April, 2004, four of the TC judges including President Jiménez de Parga
were replaced as their term of office came to an end61. Although comments in
56
President of the Sala de lo Contencioso -Administrativa del Tribunal Superior de Justicia de
Catalunya, and Professor of Law in the University of Barcelona, Constitucional contra Supremo,
EL PAÍS, Mar. 2, 2004.
57
STC 111/1983, Dec. 2, 1983.
58
STC 7/1994, Jan. 17, 1994.
59
20 años de conflicto, EL PAÍS, Feb. 4, 2004.
60
STC 115/2000, May 5, 2000; STS July 20, 2000 (Civ.); STC 186/2001, Sept. 17, 2001; STS
Nov. 5, 2001, (Civ.).
61
A turn of office is nine years, L.O.T.C art. 16.2.
162 Int’l J Con Law, Vol 4, No 1 (Jan 2006)
L. Turano
the press express the hope that this will mean a fresh start,62 it is unlikely to
resolve the bad blood that exists between the two courts and that is widely
thought to be bringing them into disrepute.63 The friction between them is
systemic: it is a result of the way in which these institutions are configured.64
Writing in 1989, the late jurist Francisco Tomás y Valiente noted that ‘‘the
jealousy and initial distaste that many judges felt when confronted with this
constitutional creation has obviously diminished over the last ten years, but
at certain times it intensifies.’’65 Certainly things have got worse; as El Paı́s
points out, what is clear from the courts’ obdurate attitudes is that they are
putting more effort into fanning the flames of discord than into agreeing on
measures to moderate or resolve the conflict.66
The 11 judges of the TC have paid the fines but have clearly not accepted
the TS’s views.67 While the TC recognizes that its judges are individually
civilly liable like every other citizen, it refuses to entertain the idea that any
court has jurisdiction to find them so, and the law as it stands supports their
view. Socialist MP Diego López Garrido has suggested that the only way to
resolve the conflict is to introduce legislation explicitly allowing the civil liability of TC judges to be decided by the TS, which he says, is at present only
implied by the LOPJ.68 As Tomás y Valiente has said, in order to begin to
reduce these frictions, it is necessary to start by recognising their existence.
In the wake of the Mazón affair, one could hardly ignore them. In any legal
system there must be an ultimate arbiter: no ordinary court can judge the
pronouncements of the TC on constitutional matters because the judiciary
must apply the interpretations of the TC. That any constitutional court is
unelected and unaccountable is a necessary corollary of its independence
from party politics, but this independence is also, in a democracy, its greatest
flaw: the problem remains of how to reconcile the democratic will expressed
through Parliament with the existence of an unelected and unaccountable
body which creates law and whose pronouncements therefore enjoy the
same unimpeachable authority as Parliament’s. It may be, at least in Spain
for the time being, that no one guards the guardians.
62
See EL PAÍS, Apr. 11, 2004.
63
See Bonifacio de la Cuadra, Tribunales y ciudadanos, EL PAÍS, Mar. 4, 2004; Coderch, supra
note 2; Pugna entre tribunales, EL PAÍS, Jan. 27, 2004; Contencioso sin fin, EL PAÍS, Feb. 5, 2004.
64
Oscar Herranz Sampedro, Jurisdicción ordinaria vs jurisdicción constitucional, 95 REVISTA
FACULTAD DE DERECHO DE LA UNIVERSIDAD COMPLUTENSE 97, 115 (2000).
65
Poder Judicial y Tribunal Constitucional, 11 PODER JUDICIAL 28 (1989).
66
Contencioso sin fin, EL PAÍS, Feb. 5, 2004.
67
DE LA
Mazón has since donated his award to a disabled client who had had his application turned
down by the TC, EL PAÍS, Feb. 28, 2004.
68
Silencio judicial sobre el acuerdo del Constitucional sobre el Supremo, EL PAÍS, Feb. 5, 2004.