Reservation of jurisdiction: effective judicial protection and custody of children (Commentary to the STC 185/2012, 17 October)

Abstract

The study is about the STC 185/2012, which asserted the unconstitutionality the «favorable» term as a prerequisite of the report of the Public Prosecutor which the legislator established so the judge could impose the joint custody of the children by their parents separated when they disagreed among themselves for that type of custody. The unconstitutionality declared is twofold: because such regulation violated the principle of jurisdictional reservation in favor of the judges and courts proclaimed in the art. 117.3 CE, and because it quite the right to effective judicial protection guaranteed in the art. 24.1 CE. The decision has a dissenting opinion signed by four judges, which denies such studs: on the one side, taking as examples some legal determinations envelope whose constitutionality is no doubt and, that consequently warrantee the questioned regulation; on the other side, and above all, founding that his trial constitutional conformity in the Court’s doctrine about the notion of «normative density», which covers the legislator to regulate detail matters. The comment aims to demonstrate that the examples that are compared in the dissenting opinion declared unconstitutional regulation are not comparable to this, and that such a constitutional doctrine about the «normative density» was not applicable either to the same. So the impossibility that the judge imposed the shared custody of children in case of disagreement of the parents about it if the report of the Prosecutor was opposite (or simply neutral or non-existent) was, indeed, non-conforming with the jurisdictional exclusivity of the judges and violated the right to effective judicial protection at stake in such cases.