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Civil Liberties In Spain

Seminar Paper – Human Rights & Civil Liberties In Spain

The following paper will discuss the fundamental rights and civil liberties guaranteed under the Spanish Constitution which can generally be classified into the three classical categories of “status negativus,” “status activus” and “status positivus.” It will focus on the fact that these rights and liberties are subject to the rules and principles common to all civil law countries with regard to the regulation of their exercise or their restriction. A brief discussion on the creation of these three categories and how they fit into the Spanish Constitution would be a good place to start.

Classification Of Rights And Liberties

The history of human rights may be divided into three main phases, referred to as the rights of the first, the second, and the third generations. For the purposes of the following paper, I will confine myself to a discussion of the rights of the first and second generation in relation to the Spanish Constitution. Human rights of the first generation were declared in the great democratic revolutions at the end of the eighteenth century in the United States and France. Their focus was on individual civil and political rights with a view to guaranteeing both private liberty and democratic participation. The German jurist, Georg Jellinek, labelled these rights respectively as the “status negativus” and the “status activus.” The rights of the negative status have a defensive character. Their goal is to prevent governmental violations of life, liberty, and property. In exceptional cases in which the state is allowed to restrict these rights, procedural provisions such as the guarantees of “habeas corpus” bind it. The rights of the active status, of participation in the political process, entail freedom of speech, assembly, association, and democratic suffrage. The second generation arose during the nineteenth century when the focus shifted to social rights, Jellinek’s “status positivus.” The idea of a positive status was the result of the problems encountered in the industrial revolution. Economic and social rights were designed to help overcome increasing impoverishment and proletariatisation of substantial numbers of the population – in simpler terms it may be described as the status of being able to make demands from the state.

The majority of rights which can be classified as having a negative status belong to Division 1 of Chapter 2 of the Spanish Constitution: Freedom of Ideology, Religion and Beliefs (Art. 16); Individual Freedom and Security and Habeas Corpus (Art. 17); Right to Reputation, Personal and Family Privacy and to One’s Own Identity (Art. 18); Right to Freedom of Choice of Place to Live (Art. 19); Freedom of Expression, Freedom of Knowledge and Right to True Information (Art. 20); Freedom of Association (Art. 22); Right to Form Trade Unions (Art. 28); and Right of Petition (Art. 29). These all broadly can be described as rights aiming to prevent governmental violation of day-to-day life.

As regards the status activus rights, these can easily be classified according to the following: Right of Assembly and to demonstrate (Art. 21); Right to Universal Suffrage and to Hold Public Office (Art.23); right (and duty) to defend Spain (Art. 30); and the duty to contribute to a tax system which is established according to the principles of equality and progressiveness (Art. 31). These all can be seen as allowing the participation of the citizen in the states actions.

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There exists many rights which can be seen as belonging to the status positivus category: Right to Obtain Effective Protection by the Courts and Right of Access to the Courts (Art. 24); Right not to be Punished where there is no crime (Art. 25); Protection of Reputation (Art. 26); and the Right to Education and Instruction (Art. 27). There are several more rights such as the right to health protection and right of access to culture in other parts of the Constitution which would also fall under the category of status positivus as they allow each Spanish citizen to make demands from the state. With that in mind let us move on to discuss the fundamental rights and civil liberties guaranteed in the Spanish Constitution and how they compare to the constitutional traditions of other civil law countries. A brief discussion of the history and creation of fundamental rights in Spain helps us understand the governmental methods of the regulation of their exercise or their restriction and crucially not only how they are similar but also why they are similar to other civil law jurisdictions.

History Of Fundamental Rights And Liberties In Spain

The conquest of the Americas in the 16th century by the Spanish resulted in vigorous debate about human rights in Spain. The debate from 1550-51 between Bartolomé de Las Casas and Juan Ginés de Sepúlveda at Valladolid was probably the first on the topic of human rights in European history. However no major improvement was made until 1812, at which stage, characterised and indeed influenced by the principles of liberté and égalité of the French Declaration of the Rights of Man and of the Citizen, Spain seen the creation of the constitution of Cádiz. This constitution contained a few rights and freedoms although no one could have predicted such an improvement as was seen in the 1837 Constitution which contained a completely separate section dedicated to a declaration of rights and liberties. The 1845 Constitution unfortunately seen a reduction in these rights, most noticeably the freedom of the press as they were seen as becoming a threat due to an increase in liberalism in the media. Several provisions for the guarantee for all rights (indeed there were now a lot more than the Constitution of Cádiz 1812 had created) came to fruition in the 1869 constitution due to popular protests. The restorative constitution of 1876 created much more restrictions in the exercise of rights and liberties. This is underlined by the fact that most of the rights and civil liberties became dependant on the leyes ordinarias which in themselves curtailed the rights to a degree. This now takes us up to the 1931 constitution which, not only contained a section on the rights and duties of the Spanish citizen but also provided for political guarantees and the social rights of the family, economy and culture. It has also been suggested that this constitution paved the way for the recurso de amparo, a right of appeal to the court on the basis of lack of constitutionality of a political action which may include an invasion of a constitutional right.

The Constitución Española 1978 guarantees a wide range of fundamental rights and liberties. In common with several civil law countries, Spain has a special court – Tribunal Constitucional – that regulates the exercise and restrictions of these rights. There are broadly speaking three categories of rights within the constitution, the distinction of which makes explicit that they are not all similar in nature nor do they share the same use or protection. These are fundamental rights (Articles 14-29), constitutional rights (Articles 30-38) and Principles which guide social and economic policy (Articles 39-52). Despite the legal force which these rights have, in particular the fundamental rights, Art. 10.2 expressly states that these are subject to be interpreted in accordance with the Universal Declaration of Human Rights and other national treaties, much like other civil law countries such as France and Germany with Article 55 of the French Constitution and Article 59 II Grundgesetz respectively. However where there is a difference, however slight is between Spain and Germany. Although Art 1 of the European Convention of Human Rights (ECHR) has been transformed into national law by an Act of Parliament (Bundesgesetz), it is still a federal law and ranks below the constitution – a complete distinction to its Spanish counterpart.

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In order to provide a more thorough discussion for the paper, one must delve deeper into the area of comparative law and in doing so let us start with look at the creation of the Spanish Constitution of 1978. It should be no surprise to the reader that the authors of the 1978 Spanish Constitution were heavily influenced by the constitutions of other civil law countries – most notably France, Germany and Italy – and thus the principles regarding the regulation of the exercise or restriction of rights and liberties are in keeping with those of other civil law nations. This can be put down to the fact that the constitution was written well after that of most other civil law countries. In general terms the entire section in the Spanish Constitution regarding the rights and freedoms of the individual was clearly influenced by other European and to a certain degree American constitutionalism. A look at Article 10.2 of the Spanish Constitution – to which I referred to earlier – provides a further platform to discuss the comparison with civil law countries. It states that constitutional precepts concerning individual rights and freedoms shall be interpreted in accordance with the treaties on that subject ratified by Spain. As a consequence, the precepts of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the convention-based decisions of the Strasbourg Court are mandatory references for the Spanish Constitutional Court when it applies constitutional provisions affecting rights and freedoms. In fact, quotes from opinions of the ECtHR have practically become pivotal in Constitutional Court judgments, and in many cases its case law has provided the ratio decidendi for decisions of the Spanish Court. This is apparent in judgments concerning arrestees’ rights to legal counsel (following and citing the ECtHR’s decision in Artico v Italy or opinions concerning the powers of investigating judges (citing Piersack v. Belgium and De Cubber v. Belgium).

Guarantees Of Fundamental Rights And Freedoms

The principle of institutional guarantees of fundamental rights comes from German law and is based on the reality that the theoretical recognition of human rights in a constitution is not sufficient for the realisation and enjoyment of those rights – it is not enough for them to be kept on display as it were in a written document, they must be given effect. How does the Constitución Española overcome this? As a result of this realist position the constitution establishes a complex system for the regulation of the exercise and restriction of the rights recognised in the constitution. An example of which is that the constitution demands that laws which concern the fundamental rights of the citizen must take the form of leyes ordinarias therefore delegated legislation is unable to regulate the rights or duties of the Spanish people. Villiers describes the methods of guarantee as being four-fold: the rights may be protected in the courts; they are binding on public authorities; they are made mandatory by positive legislature rules; and last but not least they can be protected by the Defensor del Pueblo. This last method of guarantee is borrowed from the constitution of another civil law nation – Sweden.

Rights that are apparently recognised erga omnes or at least against the state but are subject to legislature control in order to fulfil their full potential are quite common in civil law jurisdictions. I refer here to Article 33 of the Spanish Constitution which states that whilst “the right to private property and inheritance is recognized… the social function of these rights shall determine the limits of their content in accordance with the law.” This right which can only fully be exercised with legislature control mirrors article 12(1) of the Grundgesetz in Germany and even article 48 in the Thai Constitution. However a distinction must be drawn between the right to private property under the constitution of Spain and that of Italy, with the latter being much more reserved as seen in Article 42(1) that states,

“Private ownership is recognized and guaranteed by laws determining the manner of acquisition and enjoyment and its limits, in order to ensure its social function and to make it accessible to all.”

Other civil law jurisdictions provide further examples such as Article 110(1) of the Norwegian Constitution (1810): “Specific provisions concerning the right of employees to co-determination at their work place shall be laid down by law,” and by article 67(1) of the Polish Constitution: “Everyone shall have the right to safe and hygienic conditions of work. The methods of implementing this right and the obligations of employers shall be specified by statute.” Provisions like these make for a much weaker constitutional guarantee – if the legislature does not act to make the right effective, there is no legal ground for the Constitution to do so. For Spain therefore, like other civil law countries, much rests on adequate constitutional review procedures and, to use the words of Professor Daintith, “whether ordinary courts can take cognisance on constitutional provisions.” On the other hand, as it is in Spain in relation to property law where there is already a well-established body of private law, the “constitutional provisions” make it practically impossible to claim that the content of a property right has been permanently fixed by the constitution with reference to the law in place at the time of the constitutions creation. For example in the German “Groundwater case” the Bundesverfassungsgericht held that a restriction on a previously exisiting right to take groundwater from beneath your land was a constitutionally sustainable legislative redefinition of property rights.

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The Amparo In Protecting Fundamental Freedoms

“The essential objective of amparo review is the protection, by a constitutional body, of rights and liberties… when the ordinary means of protection have turned out unsatisfactory.”

Although a distinctive feature of the Spanish Constitution, the recurso de amparo (also known as an appeal for protection) was actually borrowed from the German principle of the Verfassungsbeschwerde and the term taken from Mexico. It would appear to be key to the protection of fundamental liberties infringed by the government however a look back to Spain 2003 proves how hard it is for the citizen to actually protect his or her supposed fundamental freedoms. In 2003, 98% of all cases filed in the Tribunal Constitucional were under the recurso de amparo (making a total of 7,721 cases of people and organizations seeking to protect their fundamental freedoms) however of these, 81.5% were rejected as inadmissible. This seems surprising when we take into consideration the article quoted at the beginning of this section. I found myself wondering why this could be so I decided to do some research and came across the draft European Constitution. It would appear that the committee themselves realised that this was a problem common to both Spain and Germany. While some suggestions were made, they failed to reach a logical and worthwhile conclusion. Obviously, the European Constitution still hasn’t come into effect so any improvement remains to be seen nonetheless it is yet a further example of the similarities that exist among civil law countries with regard to the restriction and exercise of fundamental rights and liberties, despite its lack of logic. However as Oliver Wendell Holmes’ famous aphorism goes – “The life of the law has not been logic; it has been experience.”

Restrictions And Limitations

Article 53(1) of the Spanish Constitution states that “Only by an act which in any case must respect their essential content, could the exercise of…rights and freedoms be regulated.” In other words, it is extremely hard to restrict the rights of a citizen guaranteed under the Constitution as another relevant piece of legislation must exist in order to do it. We must also take into consideration the principle of proportionality. Although a political maxim, we can see its relevance when we look at what exactly the principle is. The principle of proportionality states that no layer of government should take any action that exceeds that which is necessary to achieve the objective of government (regardless of intent of objective). It was initially developed in the German legal system. It is a fundamental principle of European Union law. According to this principle, the EU may only act to exactly the extent that is needed to achieve its objectives, and no further. This principle has underpinned the European Communities since their inception in 1957. In the presently applicable primary law, the principle of proportionality is clearly formulated in the third paragraph of Article 5 of the Treaty establishing the European Community as follows:

“Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.”

However this principle has never been officially recognised in relation to fundamental rights and freedoms in the Spanish courts, although it was mentioned briefly in a few cases before the Tribunal Constitucional. It also provides a further similarity between Spain and other civil law countries in relation to shared characteristics in the exercise and control to fundamental freedoms.

Another method of restricting rights and freedoms under the Spanish Constitution is by use of Article 14(1). This article guarantees that

“Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”

Thus if the exercise of a right or the restriction of that right would discriminate against someone based on any of the above characteristics, that right can be and will be limited or restricted.


As we have seen, Spain, given the relatively recent adoption of their current constitution, has seen that constitution greatly influenced by those of other civil law countries. It is only natural therefore that their principles regarding their exercise and regulation of fundamental rights and freedoms would also be borrowed from these civil law nations. Perhaps when they write their next constitution (if they write another) they will be able to write one which is tailor-made to the Spanish nation and we will no longer see such comparisons.



  • C. Elliott, E. Jeanpierre and C. Vernon, French Legal System (2nd ed., Harlow: Pearson Longman, 2006)

  • N. Foster and S. Sule, German Legal System and Laws (3rd ed., Oxford: OUP, 2002)

  • G Jellinek, Das System der subjektiven öffentlichen Rechte (2d ed. 1905)

  • E. Merino-Blanco, Spanish Law and Legal System (2nd ed., London: Sweet & Maxwell, 2006)

  • Oliver Wendell Holmes, The Common Law (New Ed Edition Dover Publications New York 1991)

  • C. Villiers, The Spanish Legal Tradition, (Aldershot : Ashgate Dartmouth, 1999)


  • Pierre Bon, La Constitución española en el marco del constitucionalismo contemporáneo, 69 Revista Española de Derecho Constitucional (2003)

  • T. Daintith “The Constitutional Protection of Economic Rights” Volume 2 Number 1 (2004) International Journal of Constitutional Law 56

  • L. Prakke, ‘The Kingdom of Spain’ in L. Prakke and C. Kortmann (eds.), Constitutional Law of 15 EU Member States (Deventer: Kluwer, 2004)

  • Lorenzo Martín-Retortillo Baquer, “Eficacia y Garantía de los Derechos Fundamentales” in Sebastián Martín-Retortillo (Ed.), Estudios Sobre La Constitución Española – Tomo II (Civitas Madrid 1991)


  • French Constitution

  • German Constitution

  • Norwegian Constitution

  • Polish Constitution

  • Swedish Constitution, Regeringsformen

  • Spanish Constitution

Cases cited

  • Artico v Italy Series A No 37 (1981), 3 EHRR 1

  • De Cubber v. Belgium (1982) 5 EHRR 169

  • Groundwater case 58 BverfGE 300 (1981)

  • Piersack v. Belgium (1982) 5 EHRR 169

  • Tribunal Constitucional, STC 1/1981, 26/01/81

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