An unexpected constitutional reform in Spain: reading of «La cuestión prejudicial europea y el Tribunal Constitucional» («The European preliminary ruling question and the Spanish Constitutional Court») by Macías Castaño).(I)

1.-The Constitutional Tribunal is the highest interpreter of our Constitution. Until now, this Court considered that the right to effective judicial protection (art. 24 Spanish Constitution: CE) implied “the right to participate in person in a trial and to self- defend”. This constitutional regulation also indicated  that “the defendants right to be present in a trial  is a requirement of audi alterem partem principle and a tool to allow the exercise of the right to self-defence against prosecution” (Judgement  91/2000, march 30th, third section of legal basis). So, in case of heavy penalties, no person shall be condemned in his absence, eventhough he had designated a lawyer as a representative in oral arguments.



2.-But, in its judgement 26/2014, February 13th, the Constitutional Court changed the jurisprudence and considered that a condemnation without the presence of the defendant doesn’t infringe on the Spanish Constitution. However, this High Tribunal imposed three conditions:

-The defendant has freely chosen his absence. His option is clear and unambiguous.

-The defendant has been rightly notified.

-The defendant has appointed a lawyer. Moreover, this attorney has effectively defended the position of the accused.


3.-This transformation is not only a mere evolution in Constitutional Court jurisprudence, but it’s a change caused by a judgement of the Court of Justice of the European Union  (CJEU) that decided a preliminary ruling question about interpretation and validity of European Law. That was the only question proposed by the Spanish Constitutional Court until now.

Is it right to judge an absent defendant?

Should we judge an absent defendant?










Acerca de Joan Amenós Álamo

Professor de Dret Administratiu
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