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

This paper analyzes the legal framework of the judicial guarantee of rights concerning the activity of intelligence services. In that sense, we first contextualize intelligence regarding the risk society and the security; then we focus on the intelligence services considering the legal framework of the secret; and finally we study the judicial control of intelligence activity in relation to the guarantee of rights, as well as its deficits and its convenient legal reform purposes.

In the following pages, It will analyse some of the reasons underlying this structural tendency of the European Courts towards activism, explaining the theory that considering the European environmental framework, it appears that there are no conditions and institutional incentives to reasonably reach a balance between the political-historical dimension and the judicial-interpretative one of the fundamental rights.

The Constitutional Court has declared under the Constitution the first application of art. 155 CE in Catalonia by means of the Government and Senate agreement of 2017 except to a small extent. This proceeding has been defined as an exceptional mechanism that has to be used with several important restrictions. The whole concrete measures adopted have been considered constitutional. However, the Court warns that cannot apply a test of necessity to this measures but a more external control of reasonableness

This essay comments critically a book on judicial governance by Pablo Lucas Murillo de la Cueva, professor and Magistrate at the Supreme Court. It focuses on the book’s opportunity, its contents, the perspectives used in the analysis and the essential thesis sustained. The book is a clear and reasoned justification of the parliamentary selection of the members of the Spanish Judicial Council. But it studies, as well, other important issues raised by judicial independence in Spain combining the theoretical approach of a Professor and the practical knowledge of a member of Spanish judiciary.

Gumersindo de Azcárate (León, 1840— Madrid, 1917) was one the most influential Law professor and politician in Contemporary Spain. He was an active member of the so-call krausist movement that played a major role in Spanish culture and politics after the revolution of 1868. From both, journals and University he defended the liberal and democratic principles that lead to his ideal: a rule of law. In that context he supported the new constitution of 1869, regarded by Azcárate for the rest of his life as the best one in Spanish modern history. When the Restoration took place in 1874 and a constitutional Monarchy inspired in French doctinaires’ political theory was set up, Azcárate criticised it proposing to look over the Constitution of England as a model. According to his interpretation of English constitutional system, the principle of self-government or the sovereignty of society was the key principle for building a true democratic parliamentary government based on the free association of individuals, a decentralized administration, an independent judicial power and public opinion as the very source, guide and limit of all the powers of the State. From 1886 up to 1916 Azcárate became Member of the Parliament as representative of the republican party and was actively involve in the Intitute for Social Reforms (1903) that tried to improve the condition of the working classes.

Electoral processes do not escape the digital transformation that our society is undergoing. The necessary adaptation of electoral regulations to the use of digital technologies implies respect for personal data protection regulations and the existence of adequate guarantees that prevent political parties from manipulating citizens’ votes for the information they know or get to know about them through the Internet. The modification of article 58.bis).1 of Organic Law 5/1985, of the General Electoral System (LOREG), allowing political parties to collect personal data related to the political opinions of citizens, provoked fromheadlines, citizen criticism and interesting debates by experts in the field to the proposal by the Ombudsman of an appeal of unconstitutionality against said possibility. The Constitutional Court in the Jugdment 76/2019 ends the debate by manifesting not only the unconstitutionality of the contested precept, but also by demonstrating the importance of protecting citizens’ personal data with due guarantees, especially when these data are a reflection of their political ideology and their treatment affects the correct democratic functioning of our State.

In the recent debate on the reform of the regulation of social rights in the Constitution and the rise of some of them to the category of fundamental rights, the right to healthcare takes on a prominent position. The proposal to transform the right to healthcare into a fundamental right, although it could have positive effects from the perspective of ensuring the minimum conditions for the exercise of freedom, also presents problems related to the economic power that the proposal would give to the Court and to the increase of litigation that it would cause. On the other hand, our constitutional system has enough legal instruments to guarantee such social right without the need of transforming it into a fundamental right.

The overcoming of the protectionist model by a progressive extension of the full enjoyment of the rights of disabled people has generated, at least in the Spanish case, some dysfunctions not exempt from controversy. With the reform of the LOREG of 2018, it has gone from a system in which the judge determined in each case the degree of «political capacity» of the disabled person, to another where the legislator liberalizes the exercise of active suffrage, leaving in the air some aspects, related to the conditions and limits of this exercise, which generate a certain legal uncertainty.

On the basis of its antecedents, the first preliminary ruling under the Convention issued by the ECtHR at the request of the French Court of Cassation is examined here in relation to the controversial issue of surrogacy and the resulting system of filiation, in this case with the mother principal. After a brief approximation to the answer given to the questions expressly raised, it is a question of recapitulating the meaning and scope of this novel way of preventive clarification of the conventional standard, without contradicting the presuposed requirements in the conventional system of protection of fundamental rights and freedoms by the instrumental principles of subsidiarity of the jurisdiction of the ECtHR and the national margin of appreciation.

This paper studies the Constitutional Reform Act published in the 2005 in United Kingdom. This important reform means a deep constitutional change in an unwritten constitution model. The first part shows, critically, the old model explaining how the judges were appointed. The second part analyses the new model in which the most relevant role is played by the Judicial Appointments Commission, this new public body designed as recommendation body appoints the Judiciary in United Kingdom and it’s being representative of the deepest change amid the classical concept of Judicial independence. More than ten years before the JAC’s creation, important inputs could be commented.