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11 de març 2017

Critical analysis of amendments to Spain’s Constitutional Court: Venice Commission

Full opinion to be made available on Monday 13 March
Press communiqué
"In an opinion that has been adopted on Friday, the Council of Europe’s Venice Commission concludes that Spain should improve certain amendments to the Organic Law on its Constitutional Court, which attribute to the Court the task to execute its own judgments, although it also notes that these amendments do not contradict European standards. The new powers attributed to the Court include the suspension of officials refusing to implement judgments.

The Venice Commission adopted its opinion on the Act of 16 October 2015 amending the Organic Law no. 2/1979 on the Constitutional Court of Spain at its 110th plenary session held in Venice from 10 to 11 March. The opinion was issued upon request by the Council of Europe’s Parliamentary Assembly Monitoring Committee.
As a starting point, the Venice Commission recalled that judgments of Constitutional Courts have a final and binding character and that they have to be respected by all public bodies and individuals. Disregarding such a judgment is equivalent to disregarding the Constitution and the Constituent Power. When a public official refuses to execute a judgment of the Constitutional Court, he or she violates the principles the rule of law, the separation of powers and loyal cooperation of state organs. Measures to enforce these judgments are therefore legitimate. The opinion examines to which extent the amendments are an appropriate means to achieve this legitimate objective.
On the basis of a comparative overview, the Commission finds that the responsibility for the Constitutional Court to contribute to the execution its own decisions is the exception and this task is usually attributed to other state powers.  Attributing the overall and direct responsibility for the execution of the Constitutional Court’s decision to the Court itself should be reconsidered in order to promote the perception of the Court as a neutral arbiter, as judge of the laws. For all measures of execution, the Court should not act on its own motion but only upon request by the parties.
While some of the measures examined do not raise problems (e.g. requesting the national government to ensure the execution or requesting the prosecution of the offender in the ordinary courts), questions may be raised with respect to heavy repetitive, coercive penalty payments applied to individuals and the suspension from office of officials. The Venice Commission is concerned that the Constitutional Court would have to take measures of execution in a situation where it is already facing a refusal to execute its judgments. A refusal to follow also the execution measures could challenge the authority of the Constitutional Court and, in turn, that of the Constitution itself.
In such a case, other state bodies should step in, in order to defend the Constitution and the Constitutional Court. The attribution of the power of execution of its decisions to the Constitutional Court may seem as an increase of power at first sight. However, the division of competences of adjudicating on the one hand, and of executing its results, strengthens the system of checks and balances as a whole, and in the end, also the independence of the Constitutional Court.
While the Venice Commission does not recommend attributing such powers to the Constitutional Court, it concludes that in the light of the absence of common European standards in this field, the introduction of such powers does not contradict such standards."

Spain's case (September 2016): https://t.co/xgkvwKrFol

Amendments to draft Opinion (10 March 2017):

Source: Vilaweb (13/3/2017) http://www.vilaweb.cat/noticies/exclusiva-el-document-que-demostra-les-pressions-de-lestat-espanyol-per-rebaixar-les-critiques-de-la-comissio-venecia/

See also http://estudiscatalans.blogspot.com/2017/03/venice.html. From the wording of the text, it does not seem to refer to the request by the Council of Europe’s Parliamentary Assembly Monitoring Committee, though the timing overlaps completely.

See also Catalan Ombudsman's testimony in Catalan Parliament:  http://www.directe.cat/noticia/614560/video-l-encarregat-de-redactar-l-informe-de-la-comissio-de-venecia-mai-havia-rebut-tantes-

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