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Organic Law 6/1985, of 1 July, on the Judiciary

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Organic Law 6/1985, of 1 July, on the Judiciary Page 1 of 225 LOPJ ORGANIC LAW 6/1985, OF 1 JULY, ON THE JUDICIARY. JUAN CARLOS, KING OF SPAIN Let it hereby be known by all: The Parliament has passed and I hereby sanction this Organic Law. EXPLANATORY PREAMBLE I Article 1 of the Constitution affirms that Spain is a social and democratic State based on the rule of Law, which, as higher values within its legal system, promotes freedom, justice, equality and political pluralism. A State based on the Rule of Law, which fundamentally entails the separation of Powers within the State, the supremacy of Law as the expression of the sovereignty of the people, the subjugation of all public authorities to the Constitution and the remainder of the legal system and effective procedural safeguarding of fundamental rights and public freedoms, requires a series of bodies that, operating on the basis of institutional independence, are constitutionally afforded a position that enables them to impartially enforce and apply the regulations that express the will of the people, subject all public authorities to adherence to the Law, review the legality of administrative actions and offer everyone effective legal protection in the exercise of their rights and legitimate interests. The series of bodies that perform this duty constitute the Judiciary, addressed in Title VI of our Constitution, set forward as one of the three Powers of the State, exclusively charged with exercising judicial authority in all nature of procedures, judging and enforcing judgments, in accordance with the regulations governing competence and procedural practice established by law. Article 122 of the Spanish Constitution states that the Organic Law on the Judiciary will determine the formation, modus operandi and governance of the Courts and Tribunals, the legal statute for tenured Judges and Magistrates, who will form a single body, and for the personnel in the employ of the Judicial Administration, along with the statute and the system of incompatibilities governing members of the General Council of the Judiciary and their functions, particularly with regards to appointments, promotions, inspections and the disciplinary system. Constitutional requirements gave rise to the passing of an Organic Law to regulate appointments and the composition and operation of the General Council of the Judiciary, indeed, prior to proceeding with the comprehensive organisation of the Judiciary. This Organic Law, in more than a few aspects, is of a provisional nature, as explicitly recognised in its transitory provisions, which refer to the future Organic Law on the Judiciary. The current Organic Law therefore fulfils a two-fold objective: it draws a close to the provisional situation that, up to this point, characterised the organisation and operation of the Judiciary and it fulfils the constitutional requirement. Page 2 of 225 LOPJ II. At present, the Judiciary is regulated by the Provisional Law on the Organisation of the Judiciary of 15 September 1870, by the Supplementary Law to the Organic Law on the Judiciary of 14 October 1882, by the Law Regulating the Reform of Municipal Justice of 19 July 1944 and by numerous legal and regulatory provisions that were subsequently issued, in a disperse manner, in relation to this subject-matter These regulations have not been adjusted in keeping with the current requirements of Spanish society. Since the liberal regime of the separation of Powers, recently inaugurated at the time, which enacted these laws, there has been a transition, over the course of a century, to a Social and Democratic State based on the Rule of Law, the political configuration of a Nation that hopes to establish an advanced democratic society wherein the public authorities are compelled to promote conditions to ensure that the freedom and equality of the individual and of groups are real and effective, to remove obstacles that impede or hinder their full expression and to facilitate the participation of all citizens in political, economic and social life. The fulfilment of these constitutional objectives requires a Judiciary that is adjusted to a society that is predominantly industrial and urban and that is designed with a view to the changes that have occurred in the territorial distribution of population, the social division of labour and the ethical views of citizens. In addition, the significant transformation, as a result of the Constitution, that has occurred within the territorial sharing out of power must also be considered. The existence of Autonomous Regions to which the Constitution and the Statutes assign competencies relation to administering Justice, requires modifications to existing legislation in this area. Both the Constitution and the Statutes of Autonomy envisage the existence of High Courts of Justice that, in accordance with our Magna Carta, occupy the preeminent position within the territorial judicial organisation of the Autonomous Region. The unavoidable and pressing need to adapt the organisation of the Judiciary in accordance with these constitutional and statutory provisions is, therefore, another compelling factor that justifies the passing of this Organic Law. Finally, attention must be drawn to the fact that this is only one of the regulations that, in combination with many others, the Spanish legislative body, on both a substantive and procedural level, must update, in order to adapt it to legal, economic and social realities. To this end, a painstaking reform of Spanish legislation will prove necessary, which has already begun, with a view to achieving a balanced totality, characterised by homogeneity. III. In broad terms, the main areas of concern of this Law are outlined in its preliminary title, which lists the principles enshrined in the Constitution. The first of these is independence, which represents an essential characteristic of any Judiciary. The requirements are developed via specific mandates that define their exact content with the necessary rigour. Thus, it is determined that independence in the exercise of the judicial role is applicable at all levels, even before the judicial bodies themselves, which implies that even Judges and Courts cannot overturn the actions of their subordinates, except in the case of a legally valid appeal, and the possibility of circular letters or general instructions relating to the enforcement or interpretation of the law are also prohibited. Insofar as the Organic Law regulates the independence of the Judiciary, we can affirm that such independence is characterised as being absolute. This absolute nature derives from the obligation placed on all public authorities and individuals to respect the independence of the Judiciary and the total shielding of the legal statute for Judges and Magistrates against any possible interference from other State Powers, in such a manner that the traditional constitutionally recognised guarantee of immutability is supplemented by a regulation, by virtue of which all competencies of the Executive are excluded from the application of the organic statute for Judges and Magistrates. As a result, from this point onwards, the professional careers of Judges and Magistrates will be completely governed by the regulation, or will fully and exclusively depend on the discretionary decisions adopted by the General Council of the Judiciary, as defined in the statute. Page 3 of 225 LOPJ The importance of the absolute judicial independence within our legal system should be evaluated in view of the absolute nature afforded to judicial authority by Law. In effect, the Courts control regulatory authority and administrative activity, without exception, whereby no actions of the Executive will entail the supervision of an independent Power, subject only to the Rule of Law. It must be conceded that the State based on the Rule of Law proclaimed in the Constitution, as a method of organisation governed by law that expresses the will of the people and as a system wherein the government of laws supersedes the government of men, should be as far-reaching as possible. Other precepts within the preliminary title are corollaries to judicial independence, specifying its various perspectives. Thus, the unity of jurisdiction, which, as a result of the constitutional requirement, is absolute, with the sole exception of competence within military jurisdiction, which is limited to strictly military matters, regulated by law, and to situations involving a state of siege; the faculty afforded to Judges and Courts to call for the collaboration or individuals and public authorities; and, ultimately, the regulation of proceedings and the guarantees therein envisaged in cases of expropriation of rights recognised before a Public Administration in a final ruling. IV The characteristics of the Spanish Constitution include the superseding of the merely programmatic nature previously assigned to constitutional regulations, the adoption of a direct and immediate legal efficacy and, in short, the placing of the legal system in a position of unquestionable supremacy. As a result of this series of traits, our Constitution is a directly enforceable regulation that takes precedence above all others. All of these aspects derive from the tone of the constitutional text itself. Firstly, attention should be drawn to article 9.1, which stipulates that "citizens and public authorities are subject to the Constitution and the remainder of the legal system". Other constitutional provisions, such as the provision that repeals any regulations contrary to the constitutional
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