Unconstitutionality Challenges: Process and Jurisdiction

Unconstitutionality Challenges

When a court considers that a regulation having the force of law may be contrary to the Constitution, the issue of unconstitutionality is raised before the Constitutional Court.

Characters

1. Any type of process, any field.
2. Decidendi must be standard, whose validity depends on the fault.
3. The question arises whenever the judge acts on their own initiative or at the encouragement of the parties.
4. This produces cessation of the main process.
5. There is no suspension of the law (except when the government challenges a standard issued by the Autonomous Community before the Constitutional Court).
6. Fuzzy control nuances: through the issue, the judge can reach the declaration of unconstitutionality.

Procedure

1. Admissible admission.
2. Transfer of resources to Congress, Senate, Government, and Autonomous Communities.
3. Claims must be made within 15 days.
4. The Court shall issue a ruling within 15 days (maximum outstanding of 30).

Self-Questioning

We present a habeas corpus for infringement of a fundamental right by law. If we believe that that right has been infringed, we raise the issue in Parliament, which may declare the unconstitutionality of this law in a new sentence with the effects.

The competent body is the Plenary.

Procedure

The Constitutional Court shall transmit the matter to the House of Representatives, Senate, Government, and the Autonomous Communities.

Submissions may be made within 15 days (exceptionally 30).

Relationship Between Constitutional and Regular Jurisdiction

The principle of jurisdictional unity is the basis of the organization and functioning of the Tribunals.

• Ordinary judge, justice of the EC: INAPL regulations, may raise the question of unconstitutionality.
• Constitutional Court: U of CE, control of judgments that violate fundamental rights.
• Court: is the highest court in all respects, except the provisions concerning constitutional guarantees.

Jurisprudence

Supreme Court decisions: the case law supplemented with the doctrine laid down by the Supreme Court in interpreting and applying the law, custom, and general principles of law.

Judgments of the Constitutional Court: the sources of Spanish law are the law, custom, and general principles of law.