Strasbourg, 2 January 2017 CDL-REF(2017)001 Opinion No. 827 / 2015 Engl. only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) SPAIN CONSTITUTIONAL COURT JUDGMENT ON UNCONSTITUTIONALITY APPEAL [“RECURSO DE INCONSTITUCIONALIDAD"] NO. 229-2016, BROUGHT BY THE BASQUE GOVERNMENT This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-REF(2017)001 - 2 - The Plenary Meeting of the Constitutional Court, consisting of Mr. Francisco Pérez de los Cobos Orihuel, President, Ms, Adela Asua Batarrita, Ms. Encarnación Roca Trías, Mr. Andrés Ollero Tassara, Mr. Fernando Valdés Dal-Ré, Mr. Juan José González Rivas, Mr. Santiago Martínez-Vares García, Mr. Juan Antonio Xiol Ríos, Mr. Pedro González- Trevijano Sánchez, Mr. Ricardo Enríquez Sancho and Mr. Antonio Narváez Rodríguez, Magistrates, have issued IN THE NAME OF THE KING the following J U D G M E N T In unconstitutionality appeal [“recurso de inconstitucionalidad"] no. 229-2016, brought by the Basque Government, represented by the Court Attorney Mr. Felipe Juanas Blanco and under the legal counsel provided by Mr. Carlos Zabaleta Alvarez and Mr. Zelai Nikolas Ezkurdia, Lawyers ascribed to the Legal Services of the Autonomous Community of the Basque Country, against Public General Act [“Ley Orgánica”] 15/2015, of 16 October, reforming Public General Act 2/1979, of 3 October, of the Constitutional Court, on the enforcement of Constitutional Court resolutions to guarantee the rule of law. The following persons appeared as parties to the suit and submitted their pleadings: The Attorney of Parliament, Ms. Paloma Martínez Santa María, acting for and on behalf of the Congress of Deputies, and the State Attorney, acting on behalf of the Government. Mr. Pedro González- Trevijano Sánchez acted as Reporting Judge, indicating the opinion of the Court. I. Background Facts 1. On 15 January 2016, the Court Registry received an unconstitutionality appeal, brought by the procedural representatives of the Basque Government against Public General Act 15/2015, of 16 October, reforming Public General Act 2/1979, of 3 October, on the enforcement of Constitutional Court resolutions to guarantee the rule of law (Official State Gazette (BOE) of 17 October 2015), as well as against single article, section three, according to the wording given to b) and c), sections 4 and 5, of Article 92 of the Public General Act of the Constitutional Court (LOTC). 2. After describing the content of the challenged Act. the governing writ of this process begins by stating the main theory upheld: “[…] regulatory amendments have provided the Constitutional Court with a series of enforcement devices that alter its constitutional layout and distort it, ranking constitutional jurisdiction above the other constitutional bodies, which should prevail, particularly in the exceptional situations foreseen. In our opinion, this constitutes a breach of the constitutional system [“bloque de constitucionalidad”] established in Title IX of the Spanish Constitution, particularly Articles 161 and 164 in relation to Art. 117.3, of the Spanish Constitution (CE), on the attribution of competence to the Constitutional Court”. Furthermore, other infringements of constitutional provisions are claimed: the principle of criminal legality (Art. 25 CE), the granting of privileges [“aforamiento”] foreseen in constitutionality matters (Arts. 71 and 102 CE and Art. 32 of the Statute of Autonomy of the Basque Country (EAPV), in relation to Art. 24 CE), a fundamental right to participate in politics (Art. 23 CE), the principle of political independence of Autonomous Communities (Arts. and 143 CE), as well as Art. 155 CE. Basically, it all involves “a material reform of the Spanish political system, which we consider unconstitutional, affecting the balance between territorial powers and, consequently, the constitutional consensus itself achieved in 1978”. The appeal is being brought against the Public General Act as a whole, further to the legislative procedure used to pass the Act, and against several sections thereof: the new - 3 - CDL-REF(2017)001 wording given to b) and c) in sections 4 and 5 of Article 92 LOTC. The claims made include the unnecessariness of the reform, acknowledging the absence of a constitutionality parameter. In this regard, reference is made to a lack of reflection and the availability of judicial remedies against infringements of Constitutional Court resolutions (Arts. 164.1 CE and Arts. 38, 87, 92 and 95.4 LOTC; criminal channels, and Art. 155 CE, in this order). The reasons for this unconstitutionality are divided into five large groups, summarised below: a) Legislative procedure: a breach of Arts. 23 CE, 150.1 of the Regulations of the Congress of Deputies (RCD) and 129.1 of the Senate Regulations (RS). After explaining the legislative procedure followed, a breach of Congress Regulations is claimed, on the grounds that neither requirement has been met (Art. 150.1 RCD and Art. 129.1 RS and Constitutional Court Judgment (STC) 274/2000, of 15 November, Legal Grounds (FJ) 10) in order to apply for an abridged legislative procedure [“procedimiento de lectura única”] (if advisable due to the nature of the text or if possible due to its simplicity). The first requirement is deemed as infringed because the reform “includes amendments of constitutional relevance not open to discussion, as these affect essential constitutional principles and values, basic matters related to a constitutional body affecting relations with the other public powers”. As regards the second requirement, “the case is far from “simple”, as the amendments introduced by the reform are technically complex and involve an analysis of the institutional position itself of the Constitutional Court and the nature of its constitutional competence”. It is recalled that, according to STC 103/2008, of 11 December, an abridged legislative procedure “greatly limits the possibilities of participating in the legal enactment process”; according to STC 99/1987, of 11 June, “a failure to follow the precepts regulating this legislative procedure could render an act unconstitutional, if this breach substantially alters the decision-making process in Parliament”. Thus, the abridged legislative procedure followed to enact Public General Act 15/2015 infringes the Regulations of both Chambers, as part of the constitutional system (Art. 28.1 LOTC), seriously conditioning the decision- making process of the Chamber in breach of the fundamental ius in officium held by all deputies and, consequently, in breach of Art. 23 CE. Furthermore, the draft bill was presented, promoted and passed with the votes of a single parliamentary group, receiving a challenge and dismissal from the other groups. Given that protests and complaints were submitted by the entire opposition in Parliament, in this case the Constitutional Court would be entitled to judge these decisions, pursuant to its repeated case-law, indicating that the Court should not impose its opinion over that of Parliament in order to settle any irregularities in procedures involving parliamentary decisions, not entirely regulated and which, at the time, did not generate any protest in Parliament [Constitutional Court Judgments (SSTC) 136/2011, FJ 10 e); 176/2011, FJ 4; 209/2012, FJ 4 c); and 120/2014, FJ 2 e)]. b) The attribution of competence to the Constitutional Court in breach of Arts. 117.3, 161 and 164 CE. This challenge is being brought against the three sections indicated above [b) and c) of sections 4 and 5 of Article 92 LOTC]. Basically, it is claimed that when designing and institutionally positioning the Constitutional Court according to Title IX of the Constitution, no measure whatsoever was intended that is similar to the ones implemented by the reform; as a result, one may conclude that the legislator of public general acts has adopted a constituent position, exceeding the entitlement granted under Art. 165 CE; and, two, the reform entails a qualitative change in the nature, position and functions of the Constitutional CDL-REF(2017)001 - 4 - Court, seriously altering its balance and how its weight is set of with that of the other State powers. The LOTC is not exempt from constitutional control: the legislator of public general acts, foreseen in Art. 165 CE, is subject to limitations, derived from both Title IX of the Constitution and the Court model, inferred from a joint interpretation of the Constitution and its underlying constitutional principles (STC 49/2008, of 9 April). The enforcement measures introduced by the reform, which are hereby challenged, are ultra vires, to the point of altering the institutional position of the Court with serious detriment to the horizontal and vertical balance of powers, implicit in the Constitution, ultimately disregarding the constitutional justice model designed by the Constitution. The Constitutional Court is configured by the Constitution as a constitutional body and, in turn, as a unique court of justice; it is precisely the articulation or interaction of both components which makes it peculiar and distinct within the institutional structure of the State, determining its status and position as part of the constitutional order. As a constitutional body, the Constitution will determine is composition, status and competence system, directly assigning its fundamental attributions, nature and position. Along with the other constitutional bodies, it makes up the base for the State model; in this layout of particular importance is the set of relations established between the same, which is why a material change in these relations will entail a change in the system itself. The Court is also in charge of guaranteeing the supremacy of the Constitution and of ensuring the validity of the distribution of powers it establishes, which it why constitutional jurisdiction acts as a basic institutional guarantee of the constitutional rule of law. Its essential task is to avoid the State’s functions-powers departing from the Constitution, facilitating a dialogue amongst these powers as part of a democratic system. This function will be severely hindered if it departs from the position assigned to it by the Constitution.