The Authority Over the Administration of Justice in Spain: Current and Future Distribution Between the State and the Self-governing Communities

Abstract

Even though the Spanish Constitution of 1978 established the jurisdictional unity and reserved the authority over the Administration of Justice to the State institutions, the self-governing communities play an important role in this area. The paper will summarize how the functions related to Administration of Justice are currently distributed between the State and the Autonomous Communities. Additionally, the possibilities to extend the powers of the territories in this arena will be reviewed, respecting the limits set by the Spanish Constitution of 1978.

After the Spanish Constitution of 1978 was enacted, the territorial distribution of power between the State and the Autonomous Communities allowed the regions to have their own governments and parliaments. In this sense, the step taken in the political decentralization in both the executive and the legislative branches cannot be denied. Nevertheless, the same conclusion cannot be reached in the case of Judiciary. In fact, section 117.5 of the Spanish Constitution (S.C.) establishes jurisdictional unity as one of the principles of the State. In addition, s. 149.1,5 S.C. provides that “the Administration of Justice” is one of the exclusive competences of the State, which seemed to distance the autonomies from taking part in the field of Justice.

However, even though the self-governing Spanish territories may not have their own judicial branches, this does not mean that they cannot participate in any way in the functioning and organization of the Judiciary. Moreover, this very Constitution gave way to this participation in some of its sections, and anticipated that these territories should be born in mind when organizing the courts to be implemented state-wide.

The following will summarize how the functions related to Administration of Justice are currently distributed between the State and the Autonomous Communities. Additionally, the possibilities to expand the powers of the territories in this area will be reviewed, respecting the limits set by the Spanish Constitution of 1978. In both cases, the Spanish Constitutional Court’s jurisprudence will be considered, focusing mainly on the latest Ruling 31/2010, but not forgetting others, such as Rulings 56/1990 and 62/1990, which previously analyzed and gave response to some of the issues. For a better understanding of the topic, we will focus on the main approaches to the matter and each one’s implications in the power distribution between the self-governing communities and the State: the governing of the Judiciary, the jurisdictional or court organizational approach, and the competence over the non-judicial manpower and equipment supporting the judicial staff.