Constitutional Review of Laws in Spanish Jurisdiction

The Question of Unconstitutionality

Along with the recurso de inconstitucionalidad (r. of i.), the question of unconstitutionality (c. of i.) is the instrument envisaged in our Official Journal (OJ) for the control of the constitutionality of laws. It is regulated in Article 163 of the EC and Articles 35 et seq. of the Organic Law of the Constitutional Court (OLCC).

Subject and Scope

• Subject: The Judge.
• Re: The challenged law: its application to the use case and the validity upon which the ruling depends.

Initiation by the Court

According to Article 163 EC, when a court considers, within a process, that a regulation having the force of law applicable to the case, and whose validity depends on the decision, may be contrary to the Constitution, it shall raise the issue to the Constitutional Tribunal (TC).

The effect of the c. of i. applies to rules with the force of law. However, as established in Article 6 of the Organic Law of the Judiciary (LO PJ), ordinary courts may deem regulations unenforceable.

Procedural Requirements for Raising the Issue

Only judges have standing to raise this question before the courts, but they must meet certain requirements, such as:

• The parties and the Public Prosecutor must be heard within a common and non-extendible period of 10 days to state their opinion on the matter.
• The Judge must resolve these claims without further recourse.

Citizens cannot raise a c. of i.; only the judge can raise this request, and the decision to raise it is made without further recourse.

Purpose of the C. of I.

Applicable Laws and Timing

What laws can be challenged? Unlike the r. of i., which allows challenging any law since its publication in the Official Gazette, the effect of the c. of i. is more restricted: it requires that the law applies directly to the case and that the constitutionality of that law depends on the ruling.

Conversely, the c. of i. may be filed at any time during the lifetime of a law, and the judge shall suspend the time limit for issuing the sentence.

Effects of the TC Resolution

Sentences handed down in the c. of i. produce the same effects as the r. of i., according to Article 38 OLCC. Furthermore, the TC has an obligation to specifically notify the judge who raised the issue, and upon notification, the judge lifts the suspension of the deadline for making a decision resolving the dispute in accordance with the TC's resolution.