Among the fundamental rights of citizens stipulated by the Spanish Constitution there is the freedom of movement.

Article 19 states that all Spaniards can freely decide where they want to live and travel in the national territory, enter and leave the country and that this right can't be restricted because of political or ideological reason.

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Among the fundamental rights of citizens stipulated by the Spanish Constitution there is the freedom of movement.

Article 19 states that all Spaniards can freely decide where they want to live and travel in the national territory, enter and leave the country and that this right can't be restricted because of political or ideological reason. Article 139(1) states that all Spaniards have the same rights and obligations in any part of the territory of the State and (2) no authority may directly or indirectly hinder the freedom of movement and establishment of persons and the free movement of goods throughout Spanish territory. The same freedom is recognised to EU citizens from other Member States.

In the Law 8/2000, which amends Law 4/2000, article 5 states the right to freedom of movement only to foreigners who are "legally" living in Spain, whereas the previous law didn't make such distinction.

There have been numerous controversies and interpretations about the meaning of the expression "the terms established by treaties and the law" and the Spanish Constitutional Court has handed down some important decisions with regard to the rights of aliens. As a consequence of a literal interpretation of the Constitution ("All Spaniards have the right...") in Judgement 107/84, 23 November, the Court established that there are three categories of rights: Constitutional rights which are recognised for all, rights accorded to aliens which are derived from Spanish laws and treaties and rights from which aliens are excluded. Among these is also freedom of movement and residence (Constitution, art. 19)

Judgement 94/1993, 22 March (expulsion from the territory of a foreign worker), is very important because it removes the limitation imposed by a literal interpretation of the Constitution which grants the right of freedom of movement and residence only to Spaniards.

While recognizing in principle that the right to freedom of movement and the right of residence are not rights which are essential to guarantee human dignity, the Constitutional Court confirms that "although the freedom of the legislature is considerable, it is not absolute" and it must be exercised in accordance with right and obligations contained in the UN International Covenant on Civil and Political Rights. The ICCPR, under Article 12, recognises the freedom of movement for all persons legally established on the territory of the State.

Thus the Constitutional Court decided that "the laws and treaties which govern the movement of aliens in Spain must respect the limited, but definite extent of the freedoms recognised for all persons who are legally present on the territory of the State". Consequently, aliens residing legally in Spain "enjoy the protection recognised in Article 19 of the Spanish Constitution even though this may not necessarily be on the same terms which apply to Spaniards, except in cases determined by the laws and treaties to which Article 13.1 of the Spanish Constitution refers".

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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