Convergence of the Protection of Fundamental Rights Between the Spanish Constitutional Court and the European Court of Human Rights

To make ECtHR rulings prevail over final Spanish judgments is a matter for the legislator, not for an extreme or exaggerated interpretation of a law that has not been promulgated for that purpose. Within the context of the doctrine introduced by the Administrative Bench of the TS, the current or subsisting character of the violation of the fundamental right turns out to be a key issue. However, from the examination of the Constitutional Court’s jurisprudence on this point, in order to assess the extent of the above-mentioned doctrine of our Supreme Court, we conclude that this concept is difficult to pin down. Obviously, the Draft for the reform of the Organic Law of the Judicial Branch (LOPJ) we have discussed above renders the Supreme Court’s interpretation meaningless. Indeed, the aforementioned reform draft of the LOPJ proposes the appeal as a way to implement the ECtHR judgments; on the other hand, a return to pre-2007 wording regarding the nullity suit; the approval of this proposal, for both reasons, would put an end to the practical relevance of the doctrine of the Supreme Court on the motion for dismissal of actions as a way of enforcement of ECtHR’s judgments. The Rules of International Law as Ratio Decidendi of the Judgments of the TC Formulation, Genesis, Relevance and Content of Art. 10.2 of the Spanish Constitution 1.1. If one were to sum up the Spanish Constitution (hereinafter CE) in one article, it would be art. 10. It is true that, within it, the first section is more important than the second but the latter has great relevance. P.J. Tenorio Sánchez (*) Universidad Nacional de Educación a Distancia (UNED), Madrid, Spain e-mail: [email protected]