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Ley Orgánica 6/1985, De 1 De Julio, Del Poder Judicial

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Ley Orgánica 6/1985, De 1 De Julio, Del Poder Judicial Page 1 of 182 01.LOPJ ORGANIC LAW 6/1985, OF 1 JULY, ON THE JUDICIARY1. JUAN CARLOS, KING OF SPAIN To all to whom these presents shall come, Let it be known: That the Parliament has approved and I have duly sanctioned the following Organic Law. EXPLANATORY BACKGROUND Article 1 of the Constitution states that Spain constitutes a social and democratic state of law, advocating as pre-eminent values of its legal system, freedom, justice, equality and political pluralism. The State of Law, since it fundamentally implies the separation of powers of the State, the rule of law as the expression of popular sovereignty, the subjection of all public powers to the Constitution and the legal system and effective procedural guarantee of fundamental rights and public freedoms, requires the existence of bodies which, being institutionally characterised by their independence, are constitutionally placed to enable them to enforce and apply impartially those rules expressing the popular will, to subject all public authorities to compliance with the Law, control the legality of administrative actions and to offer all persons effective protection in the exercise of their legitimate interests and rights. The Judiciary comprises a group of bodies responsible for undertaking these tasks as defined in Title VI of the Spanish Constitution, which outlines it as one of the three powers of the State, exclusively responsible for the exercise of jurisdictional powers in all types of proceedings, judging and enforcing judgments according to the rules of jurisdiction and procedure established by law. Article 122 of the Spanish Constitution states that the Organic Law of the Judiciary shall determine the constitution, operation and government of the Courts and Tribunals, the legal status of professional judges and senior judges who form a single body, and personnel in the service of the Justice Authority, in addition to the statute and system of incompatibilities of members of the General Council of the Judiciary and their duties, in particular in matters of appointments, promotions, inspection and disciplinary regime. The requirements of constitutional development necessitated approval of an Organic Law which would regulate the selection, composition and creation of the General Council of the Judiciary even before proceeding to the essential organisation of the Judiciary. This Organic Law, in many of its aspects is provisional in nature and explicitly recognises its transitory provisions which refer to the future Organic Law of the Judiciary. The present Organic Law therefore has a dual purpose, that of bringing to an end what has to date been a provisional situation in the organisation and operation of the Judiciary, and to fulfil the constitutional mandate. 1 Published in the Official State Gazette nº. 157, of 2 July 1985, together with the subsequent modifications up until May 2007. Page 2 of 182 01.LOPJ II At present, the Judiciary is regulated by the Provisional Law on the organisation of the Judiciary of 15 September 1870, by the Additional Law to the Organic Law of the Judiciary of 1882, by the Basic Law for the reform of Municipal Justice of 19 July 1944, and by numerous legal and regulatory provisions which were subsequently issued intermittently on the same matter. These regulations and standards are not adapted to the requirements of Spanish society today. Since the, at that time, recently acquired liberal regime of separation of powers, which promulgated those laws, a century later there has been a transition to a Social and Democratic State of Law which is the political organisation of a Nation desirous of establishing a developed democratic society, in which public powers are required to promote conditions which will ensure that freedom and equality of the individual and of groups shall be real and effective, removing any obstacles which would prevent or hinder its fulfilment, and facilitating participation of all citizens in political, economic and social life. The fulfilment of these constitutional objectives necessitates a Judiciary adapted to a predominantly industrial and urban society, which is designed to adjust to changes in the territorial distribution of its population, in the social division of work and in the ethical conceptions of its citizens. To this should be added the notable transformation which has occurred as a result of the Constitution in the territorial distribution of power. The existence of Autonomous Communities, to which the Constitution and the Statutes have assigned authority and powers in respect of the Administration of Justice, required current legislation to be amended in this respect. Both the Constitution and the Autonomous Statutes establish the existence of High Courts of Justice which, according to our Magna Carta will be the highest judicial organisation within the territorial scope of the Autonomous Community. The inevitable and unavoidable need to adjust organisation of the Judiciary to these constitutional and statutory provisions is therefore a further imperative justifying approval of the present Organic Law. Finally, it should be pointed out that this is just one of the regulations which, together with several others, is required to modernise the Spanish legislative body –both substantive and procedural – and adjust it to legal economic and social reality. This will require a laborious task of reform of the Spanish legislation, part of which has been addressed already, for the purpose of achieving a harmonious whole, characterised by its standardisation. III The main aspects of the Law are expressed in its preliminary title. It contains the principles enshrined in the Constitution. The first of these is independence, which constitutes the essential characteristic of the Judiciary as such. Its requirements are implemented through specific mandates which define with precise rigour its exact content. Thus the independence required in exercising jurisdictional duties extends to all, including jurisdictional bodies themselves, which implies the impossibility of judges or courts correcting, unless in the case of a legally valid appeal, the actions of those of lower rank and also excludes the possibility of circulars or instructions of a general nature which relate to the application or interpretation of the law. If one characteristic were to define the manner in which the Organic Law regulates the independence of the Judiciary it would be its comprehensiveness. A comprehensiveness deriving from the obligation imposed on public authorities and private individuals to respect the independence of the Judiciary and the absolute removal from the legal statute of Judges and Magistrates of any possible interference from other State powers, so that to the classic guarantee -constitutionally recognised- of immutability is added a regulation, in virtue of which all authority of the Executive Power over the application of the organic statute thereof is excluded. As a result, the professional service of Judges shall be fully governed and regulated by the rule, or shall depend exclusively on the decisions which are adopted within the discretional scope, defined by the statutes, of the General Council of the Judiciary. The importance which the all encompassing nature of judicial independence brings to our legal system should be assessed in the light of the total jurisdictional power conferred by the Law. The Courts, in effect, control without exception regulatory power and administrative activity, so that no action of the Executive Power shall not be subject to auditing by an independent Power and subject exclusively to the rule of law. It should be agreed that the State of Law proclaimed in the Constitution attains, as an organisation governed by law in its expression of the will of the Page 3 of 182 01.LOPJ people and as a system in which the government of men is substituted by the rule of law, the maximum potentiality possible. There are other corollaries to judicial independence in the guise of preliminary precepts specifying their various perspectives. Thus the unit of jurisdiction which, as consequence of the constitutional mandate, is absolute, except for the competence of military jurisdiction which is restricted to a strictly military scope regulated by law and to cases of a state of siege; the recognised power of Judges and Courts to require the collaboration of private individuals and public authorities; and finally the regulation of proceedings and the guarantees these contain for cases of expropriation of recognised rights in respect of the Public Authorities in a final judgment. IV One of the characteristics of the Spanish Constitution is that of overcoming the merely programmatic nature formerly assigned to constitutional regulations, assuming direct and immediate legal effectiveness and, in summary, the position of indisputable supremacy it holds in the legal system. This makes the Spanish Constitution a directly applicable rule with prevalence over any other. These characteristics derive from the actual text of the Constitution. Firstly from article 9.1, which states that “citizens and public authorities are subject to the Constitution and to remaining regulations". Other constitutional provisions, such as those derogating any regulations in opposition to the constitutional text or the provision regulating procedures for the declaration of unconstitutionality, complete the effect of the aforementioned paragraph 1 of article 9, and close the system which makes the Magna Carta the supreme rule of our
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