Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

Semblanza de Carlos Ruiz del Castillo, jurista español y Catedrático de Derecho Político.Biographical sketch of Carlos Ruiz del Castillo, spanish legal expert and Professor of Constitutional Law.

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As one of the consequences of the protracted EU crisis aroused by the 2009 Great Recession —the deepest and the longest ever throughout the European process—, both the EU and its Member States have witnessed a growing concern about democratic backsliding and fundamental rights backlashes. Since both the Lisbon Treaty and the ECFR entered into force (December 2009, the EU Institutions have developed new strategies to reinforce and strengthen their ability to test Member States Law making standards as to their due respect to common constitutional values and principles, enshrined in art. 2 TEU («Copenhagen Criteria»). By doing that, they have unfolded as well new instruments to prevent, control and correct potential risk of backward steps at the Member States National level, be it via constitutional or via legal reforms. Hungary and Poland are paramount cases, in as much as they have called for: extrajudicial actions (Rule of Law Mechanism); infringement procedures by the Commission (art.258 TFEU), and EP Resolutions calling both the Commission and the Council to initiate art.7 TEU. This Paper examines recent developments in the sphere of Rule of Law, in view of extending its scope to a new Policy Cycle on Rule of Law, Democracy and Fundamental Rights, encompassing overall and regular scrutiny of all of the Member States by means of objective indicators, as a way to overcome the limits (and unlikely outcome) of the so-called «nuclear option» of art. 7 TEU. It builds on the proposal of linking access to EU Funds and budgetary benefits with full compliance with Rule of Law, Democracy and Rights EU standards. This Article focuses mainly on Poland. It adds to an overview and assessment of the latest ECJ rulings on Polish Judicial reforms led by the far conservative ruling Party (PiS), deemed to be incompatible with EU Law. It ends with conclusive remarks on the need on the need of making progress in the European path to multilayer constitutionalism and binding European Law above «national identity».

The present work addresses an innovative legal analysis on the treatment and protection of personal data about asylum and subsidiary protection seekers in the comprehensive reform of the Common European Asylum System (CEAS). This reform, among other countless aspects, has increased the effective EU Information Management as the key to protect external borders, improve the management of migration flows and contribute to the enhancement of internal security. The applicable data protection legislation is significantly fragmented, complex and diffuse since, despite the GDPR excludes from its scope asylum-related activities, border control, and immigration is directly defined in the proposed Dublin IV, Procedures and Eurodac regulations. At the same time, the persistent linkages to the security of Member States can reflect the potential application of the Data Protection Directive on Police Matters. In addition, the interoperability of different information systems, the deployment of specific bodies (such as Frontex or EASO) as well as law enforcement authorities are bound directly by their own regulations. Consequently, this fragmented and particularly complex legal framework constitutes the subject of the study.

Although the Court of Auditors is an institution which is vital for our Democratic and Social State governed by the rule of Law, a better comprehension of the body from the Constitutional Law perspective is still required. Firstly, this paper analyses the role of the Court of Auditors as a guarantee of the democratic principle. On this issue, it will be advisable to set up a more direct contact with citizens and a more fluid relationship with Parliament. Secondly, this article studies the fundamental activity of the Court of Auditors as a guarantee of the rule of law principle, not only when the institution performs its audit function, but also its judicial function. In spite of the critiques which the last one has received, it is fundamental for completing the cycle of audit. Thirdly, the paper underlines the relevance of the Court of Auditors as a guarantee of the Social Estate, especially when the principle of budgetary balance imposes more efficiency and economy on public spending. Finally, the reforms proposed by the Tribunal de Contas Portuguese and the European Court of Auditors in their peer review of 2015 are analysed. Many of these suggestions can be implemented by changing the Laws which rule on the Spanish Court of Auditors. However, other proposal may make convenient a reform of Art. 136 of our Constitution.

Judicial independence is a key subjective principle of the democratic judiciary. Citizens expect, first and foremost, that whoever holds the State’s power to resolve their conflict is unrelated to it, objective and impartial. Danger lurks when the system of appointment of judges, at least of the most important ones (the so-called high courts), depends directly on the political power and is not left to the judicial power itself, or depending only on the judiciary, the composition of the corresponding commission is clearly influenced by the political power. There is no perfect system for appointing high judges, nor is the Spanish system due to the political control of the General Council of the Judiciary. The causes, effects and possibilities of improvement are analysed in this paper, in order to better guarantee judicial independence.

The adoption of a constructive vote of no confidence in Spain for the first time since the adoption of the Spanish 1978 Constitution has led to the change of political sign of the Government in the middle of the XII legislature or term, characterised by the fragmentation of the Congress of Deputies which has replaced the former nearly two-party system. The essay analyses the consequences of this change on the functioning and functions of Parliament and on the instability of a Government that has been in power for only nine months, taking stock of the period extending from the vote of no confidence to dissolution of Parliament, comparing it with the equally difficult previous period and with other terms, to ultimately show how the end of the two-party system has influenced Government-Parliament relations in the Spanish parliamentary political system.

In this academic survey a group of Constitutional Law Professors answer some questions about the freedom of speech and its challenges in the digital society, about the called «hate speech», the ECHR doctrine on freedom of speech, the limits and limitations of this right, and the classical conflict with honor and privacy.

This article deals with a study of the state constitutions of the federal states, based on two premises: their diversity among the different federal states and their disregard by the doctrine and the citizens. Taking as reference the state constitutions of the North American states, it has been tried to clarify the legal position of the same in the system of sources and to know their vicissitudes from an analysis of the most relevant aspects of their content. As a final point, the state constitutions´ amendment procedure is studied, a complex process in which the plurality of intervening actors stands out, as well as the variety of requirements in their processing and integration. This work is integrated in the need to know all the elements to be considered in a federalizing approach, beyond general and imprecise formulas.