The idea for a Spanish Supreme Court of Justice did not arise at a specific point in the history of our nation, since there have been many circumstances that have given rise to this Court.Following a quick overview, history reveals that at first all public authorities, including that of justice, came together in the figure of the monarch. The King legislated, implemented and enforced his provisions, without there being any limitations other than those imposed by him. He administered justice by dedicating certain days of the week to meeting with members of his Council and Officers of the Court in a public hearing.
It was not until the time of the Reconquista that this form of administering justice was changed. Both the Fuero Juzgo and the Partidas (Seven-Part Code) recommended the creation of an institution “so the King could be aided by wise men”. This set of thoughts collated by King Alfonso XI, and improved upon by Juan I, was implemented by the Catholic Monarchs, who, with the meeting of bodies to hear the affairs of some of the Kingdoms, constituted the Royal and Supreme Council of Castile, the advisory body to the Monarchs and the High Court of Justice, the predecessor of today’s Supreme Court.
Among the old laws that instituted the Council of Castile, regulating its functions and providing its basic rules, we should emphasise the “Novisima” Compilation which, in Book IV and the 30 Titles that it comprised, provides sufficient knowledge of how that High Court operated. In addition, its Title IV, Act 5, given by the Catholic Monarchs, specifies the powers of such a high institution, the business it heard and the issues outside their competence, thus establishing its jurisdiction.
This Council was governed by a President-Governor, with thirty ministers divided into five Chambers: Government, Justice, State, the One Thousand Five Hundred and the Mayors. Of these Chambers, that of the Mayors was responsible for criminal matters in the final appeal, and the Chamber of the One Thousand Five Hundred for the annulment and second supplication appeals.
This institution did not only hear matters of Justice, but also those which were governmental or administrative in nature, showing a tendency to assume the highest degree of the administration of justice, intervening in appointments, inspections, hearing the requests or applications of the different Courts of Appeal, and the resolution of competences, although they were diffused between the powers of the Mayors and the Corregidores since both functions were closely linked to royal authority. This was the situation and legal status of the highest Court of the nation until the initiation of the constitutional movement in Spain.
The Constitution of Cádiz, 1812
The influence of the French philosophers and the then modern legal theories of public law on the organisation and balance of state powers, were reflected in the Constitution of Cádiz of 1812, the foundation and basis of the current Supreme Court.
The report by the Commission charged with the development of the constitutional project laid down the aims that would lead to its creation: to distance, as was right and in accordance with just principles, the governmental issues dispersed over the different supreme bodies, and take them to the Council of State; to ensure that, in no case, should the judges be distracted from their august ministry; and to keep the relevant powers and characteristics of the judiciary separate.
In section XVL of that memorable report was the reasoning behind the creation of the Supreme Court: “It is indispensable to establish the power to enforce laws, delegated by the Constitution to the Courts, for there to be a system, a centre of authority in which all the ramifications of the judiciary come together. For this reason, a Supreme Court of Justice is established by the Court, which will act as this common centre. Its main attributes must be the supreme supervision over all the judges and courts responsible for the administration of justice.”
The Constitution was promulgated and sworn on 19th March 1812, and on 17th April the Supreme Court was established by decree, although the war of independence and the siege of the city of Cádiz prevented the effectiveness of the new constitutional structure of justice.
With the retreat of the invaders, say the documents of the time, the Cádiz Cortes were moved to Madrid, already with the character of ordinary courts, meeting on 15th January 1814 at the Theatre then called Caños del Peral, and, continuing with its reforming work, adopted the Regulations of the Supreme Court by Decree of 13th March 1814, which never came into effect because of the unstable political situation and because the first act of King Ferdinand VII “the Desired”, after returning from exile, was the repeal of the Constitution and all the decrees of the Cortes, by means of the so-called Manifesto of Valencia of 4th May 1814. This meant a return to the Royal Councils and the combination of administrative and judicial powers as emanating from royal authority.
With the triumph of Riego began the so-called “Constitutional Triennium” that forced Ferdinand VII to swear on the 1812 Constitution and convene Unicameral Cortes to carry out legislative work in parallel with the Cádiz Cortes. The former Crown Councils were abolished during this period and the Supreme Court was restored.
In 1823, with the next fall of constitutionalism, Ferdinand VII declared null, by the Royal Decree of 1st October, all acts of government issued since 7th March 1820 and reestablished the Council of Castile until, in 1834, Queen Isabella II abolished the old Councils of Spain and the Indies and established the Supreme Court with the Royal Decree of 24th March. This Court consisted of three Chambers, one in charge of overseas affairs, which received the name of the Supreme Court of Spain and the Indies, while the other two were designated as the Supreme Court of War and Navy and the Supreme Court of Finance, with the Council of Castile permanently disappearing.
On 26th September 1835, the Provisional Regulations on the Administration of Justice divided the Supreme Court of Spain and the Indies into three Chambers, two for the Peninsula and the adjacent islands and a third for overseas locations, composed of fifteen judges, with those of the first two Chambers taking turns among themselves on an annual basis. This Regulation favoured the unity of the proceedings ending the practices and customs of each Tribunal; imposing free procedures to the detriment of tariffs; reducing the abuse of judicial discretion, especially in the criminal courts; intensifying inspection of the different levels of administration; and aggravating the work of the judges by raising the number of votes needed to dictate sentences.
Title V of the Regulation of 1835 attributed to the Supreme Court of Spain and the Indies the hearing in the first and second instance of some criminal cases or on jurisdictions of estates and tithes that had previously been the competence of the Council of Castile. However, it had no rules on challenges, deadlines for appearance or specification of appeals and issues that lay outside ordinary jurisdiction such as the clergy, military etc.
The new organic procedural regulation of 1835 was completed with the Regulations for the Courts of Appeals of 19th October of that year and the Regulations of the District Courts, which had to overcome the difficulties of the demarcations aggravated by the acquired rights of designated Notaries, many of them with right of succession.
The regulation of this court gradually continued during the following years, and an unpublished Royal Order from 15th August 1836 changed the name of the SUPREME COURT OF SPAIN AND THE INDIES to the SUPREME COURT OF JUSTICE, name given by the Constitution of 1812.
In the period between 1840 and 1858, not a single year went by without the dictation of a provision for the organisation of the Court. Among the most interesting we find the Law of 16th June 1841 which put an end to the privileges of the courts of Navarre and subordinated them to the Supreme Court.
The Supreme Court and Provincial Courts of Appeal
The Royal Decree of 5th January 1844 created the Supreme Court and Provincial Courts of Appeal, the Governing Boards each composed of their respective Chief Justice, the Presidents of Chambers and the Public Prosecutor of the Court. This decree also deleted the annual rotation of judges in each Chamber, filling vacancies with newly appointed judges.
Many of the provisions of this period were aimed at exalting the Judiciary and reinforcing its reputation, which was the purpose of the Royal Order of 20th April 1844, which established the Gran Collar de la Justicia (Great Medal of Justice), presented to the Chief Justice of the Supreme Court as a homage and a mark of the highest level of the judicial hierarchy.
A Royal Decree of 22nd October 1853 created the Senior Court Clerks of the Tribunals to replace the Rapporteurs of the Governing Chamber.
In 1854 the Royal Decree of 17th January abolished the Chamber of the Indies, ordering its affairs to be shared between the other two Chambers, but it was immediately restored until the Provisional Law of 1870.
In 1863, three projects were submitted to the Government: thereform of the Civil Court of Cassation, concerning the process for the admission of an appeal; the establishment of cassation appeals in Criminal cases; and, lastly, the reorganisation of the Supreme Court itself, with a President, five Vice-Presidents and thirty-one judges divided into five Chambers: the Civil Admissions Chamber, Criminal Admissions Chamber, First, Second and Third Chambers. These make up the Governing Chamber, the Chief Justice of the Supreme Court, the five Vice-Presidents and the Public Prosecutor. In this last project, the Chamber of the Indies disappeared and the duties of Reporters and Notaries were added to those of the Clerks of the Chamber.
These projects were contained in an Act of 30th April 1864, which established that the First Chamber was to be composed of two Sections, with a President and eight judges in each, and the Chamber of the Indies, of a President and six Ministers with the aforementioned powers.
The Basic Law of 11th April 1868 authorised the Government to pursue a gradual reform of the Organisation of the Courts, under which the Supreme Court would be constituted as follows: A Chief Justice, four Presidents of Chambers, twenty-six Ministers, a Public Prosecutor, a Deputy Prosecutor and their assistants.
The governments that followed the Revolution of 1868 made major reforms to the Administration of Justice including:
The Decree of 13th October 1868 which referred the hearing of contentious administrative matters to the ordinary jurisdiction of the Supreme Court, creating a Chamber to hear them and removing the Litigation Section of the State Council, which had heretofore been hearing them.
The Decree-Law of 6th December of that year, which abolished the special courts and returned to the ordinary courts those civil and criminal cases that were heard by ecclesiastical courts, as well as combining the Military Orders with the Supreme Court, which much later would again have its own jurisdiction, and which also abolished the Courts of Commerce and Finance.
Crowning these reforms, the Provisional Law on the Organisation of the Courts was passed on 15th September 1870, with Title I, Chapter V, providing that the Supreme Court shall consist of a Chief Justice, four Presidents of Chambers and twenty-eight judges. There would be a Governing Chamber and four Halls of Justice: the First for Civil Cases, the Second for Criminal Admissions, the Third for Criminal Cassation and the Fourth for Appeals against the Public Administration, each with its President and seven judges. Chapter VI, Title VI, regulated the powers of the Chambers that were to hear issues of competency, the clerical appeals, appeals of complaint and appeals owing to breaches of procedure and law. The Court sitting in full, in a single instance and in a public oral hearing would hear cases against Ministers, Presidents of the Parliament, the Chief Justice of the Supreme Court or the Presidents of the Chambers, Magistrates of the Court or the Courts of Appeal and Judges of the Chamber.
In 1875, by Act of 20th January, the Contentious Administrative Courts were again entrusted to the Council of State, which subsequently and by virtue of the Law of 4th April 1904 and the Royal Decree of 8th May 1904, were again entrusted to this Supreme Court.
Reorganisation of the Supreme Court
In the Republic, by the Decree of 6th May 1931, the Supreme Court was reorganised into five Chambers as follows: First: Civil; Second: Criminal; Third and Fourth: Contentious Administrative; and Fifth: Social.
The 1931 Constitution created a Sixth Chamber of Military Justice, assuming the powers of the Supreme Council of War and the Navy.
The current 1978 Constitution dedicates Title VI to the Judiciary and Article 123 to the Supreme Court, recognising it as the superior court in all respects, with jurisdiction throughout Spain, with its Chief Justice being appointed by the King at the proposal of the General Council of the Judiciary, as determined by law.