General legal framework

• Author: Lorenzo Cachón
• Pages: 13-14

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1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The Constitution of Spain includes the following articles dealing with non-discrimination:

Article 14: ‘Spaniards are equal before the law and may not in any way be discriminated

against on the grounds of birth, race, sex, religion, opinion or any other condition or

personal or social circumstance’.

Age, disability and sexual orientation are not expressly included in Article 14 of the

Constitution, but the Constitutional Court ruled that age (Decision 31/1984, 7 March

1984),22 disability (Decision 269/1994, October 1994)23 and sexual orientati on (Decision

41/2006, February 2006)24 are included in the generic phrase ‘any other personal or social

circumstance’.25

Article 16: ‘Freedom of ideology, religion and worship of individuals a nd com munities is

guaranteed, with no other restriction on their expression than that necessary to maintain

public order according to the law’.

Article 23(2): Citizens ‘have the right to access on equal terms to public office, in

accordance with the requirements determined by law’.

Article 49: ‘The public authorities shall carry out a policy of preventive care, treatm ent,

rehabilitation and integration of the physically, sensorially and mentally handicapp ed by

giving them the specialised care they require, and affording them special protection for

the enjoyment of the rights granted by this Part to all citizens.’26

Article 53 introduces guarantees of fundament al rights and freedoms and also of the

principle of equality and non-discrimination.

22 Constitutional Court Decision 31/1984, 7 March 1984,

http://hj.tribunalconstitucional.es/HJ/docs/BOE/BOE-T-1984-8175.pdf.

23 Constitutional Court Decision 269/1994, 3 October 1994,

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/2786.

24 Constitutional Court Decision 41/2006, 13 February 2006,

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/5643.

(See also Constitutional Court Decisions 92/2014 of 10 June 2014 and 157/2014 of 6 October 2014).

25 The doctrine of the Constitutional Court on the principle of equality and the prohibition of discrimination

(Article 14 CE) was summarised in Constitutional Court Decision 200/2001, 4 October 2001,

http://hj.tribunalconstitucional.es/HJ/docs/BOE/BOE-T-2001-20621.pdf.

26 The Spanish Constitution approved in 1978 included Article 49 to protect people with disabilities, but the

last 40 years have caused the constitutional text to ‘age’ due, among other factors, to the approval of the

Convention on the Rights of Persons with Disabilities of 2006. On 7 December 2018, the Spanish

Government adopted a draft text to reform this article of the Constitution to adapt it to the 2006

convention. The wording proposed by the Government for Article 49 is based on the work carried out in the

commission for comprehensive disability policies of the Congress of Deputies. Furthermore, the Spanish

Committee of Representatives of People with Disabilities, which had been demanding this change of

orientation in the constitutional text for several years, participated in the drafting.

In the Government draft, Article 49 of the Spanish Constitution is worded as follows:

1. ‘Persons with disabilities are holders of the rights and duties set forth in this Title in conditions of real and

effective freedom and equality, without discrimination.

2. The public authorities shall carry out the necessary policies to guarantee full personal autonomy and

social inclusion of persons with disabilities. These policies will respect their freedom of choice and

preferences and will be adopted with the participation of organisations representing persons with

disabilities. The specific needs of women and girls with disabilities will be particularly addressed.

3. The reinforced protection of persons with disabilities will be regulated for the full exercise of their rights

and duties.

4. Persons with disabilities enjoy the protection provided in international agreements that ensure their

rights.’