Acerca de la igualdad de oportunidades en la libre competencia entre partidos. El caso de la democracia española

Abstract

In order to fulfill the significant functions assigned to the political parties by our current constitutional democracy, the German doctrine from very early understood that his juridical regulation must be shaped by four principles: freedom («Freiheit»), equality («Gleichheit»), publicizing («Öffentlichkeit») and internal democracy («Interne Demokratie»). The significance of equality is projected in the relation between parties and therefore it should guarantee that these are treated as equal. To that effect, the Law of Parties must be understood as free competition law between parties and therefore the electoral competition must be ruled by the equality of opportunity. For that purpose, the Law of Parties might be conceived as a Free Competition Law between parties and the Constitutional Spanish Court should be reckoned as a constitutional institution that must ensure equality of opportunity. Nevertheless, in the Spanish Law there are legal developments that restrict such equality of opportunities, and the Constitutional Spanish Court has not exercised a control over the legislator to assure it. The restrictions to the equality must be censored and the role of the Constitutional Spanish Court might be revalued. Certain reform proposals may nonetheless be raised, which are due analyzed.