Fraud to the predetermination of the jurisdictional courts

Abstract

Despite the recognition made in article 24 of the Constitution giving the Ordinary Judge predetermined by law, attacks against it can frequently be seen. The essential content of the right does not only imply the existence of a legal norm entitling the creation of a court, but it also rightly covers other elements for the right in order to display its entire field of action. Thus, the right to the ordinary judge predetermined by law must include the generic and a priori determination of competence, as well as the legal predetermination of the rules of composition of the court. These last three aspects are the ones considered in this research in order to highlight the surprising number of situations in which jurisdiction and competence of the judges is tampered with. Specifically, a detailed analysis of suspicious tactics aiming directly or indirectly to falsify the content of these three constitutional guarantees throughout the forty years of the existence of the right within the Constitution. At the same time, Constitutional and European case law on the three guarantees, the latter being particularly unknown, also the ones of the European Court of Human Rights. With all this, we try to contribute to the preservation of the real independence of our courts.