Índice
He writ of protection before him constitutional Court It is a procedure that aims to protect some freedoms and rights of citizens. These rights and freedoms of citizens are protected in article 53, Title I, Chapter II of the Spanish Constitution.
This procedure is one of the main powers that the Spanish Constitution has attributed to the Constitutional Court. The only requirement that can be asserted through the amparo appeal is the preservation or restoration of the freedoms or rights for which the appeal is promoted.
What are the modalities of the amparo remedy?
The Organic Law of the Constitutional Court establishes three types of amparo appeal according to the origin of the act of public power. Who is charged with the violation of fundamental rights, these resources are:
The appeal for amparo against parliamentary decisions according to the provisions of article 42.
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The appeal for amparo against administrative and governmental decisions in accordance with the provisions of article 43.
The appeal for amparo against judicial decisions in accordance with the provisions of article 44.
The Organic Law of the General Electoral Regime for its part establishes two types of amparo appeal against decisions and acts of the electoral Administration. They are:
The appeal for amparo against the Agreements of the Electoral Boards related to the proclamation of candidacies and candidates. This in accordance with the provisions of article 49.3.
He writ of protection against the Agreements of the Electoral Boards related to the proclamation of election and elect. Also with the proclamation of Presidents of local Corporations, this based on article 114.2.
Who can file an appeal for protection?
The competent body for the processing and resolution of a writ of protection It is the Constitutional Court. This appeal can be filed by: the Ombudsman, the Public Prosecutor and the person affected due to the restriction of the fundamental right.
When an appeal for amparo is filed, it is submitted to a prior admission procedure. According to the provisions of article 50.1 of the Organic Law of the Constitutional Court, which decides on the following:
If the person filing the appeal for constitutional protection, in accordance with the provisions of article 46 LOTC.
It is verified that the appeal has been filed within the period established according to article 42 to 44.
It is verified that the previous judicial route or the different means of challenge have been exhausted. This according to what is established in the articles. 43.1 and 44.1.a.
It proceeds to verify that the violation has been formally denounced immediately that it became known. This according to the provisions of article 44.1.c.
It is reviewed that the claim meets the requirements of conciseness and clarity of the facts. Also if the violated constitutional precepts have been cited, which will be those mentioned in article 14 to 29 and in 30.2.
The demand must also specify the protection requested to restore or preserve the violated right.
Procedure for filing an appeal
The knowledge of writ of protection corresponds to the Sections or Chambers of the Constitutional Court. The filing of the appeal must be made through a lawsuit, when it is received in the Chamber of the Constitutional Court, it proceeds to request the Court or Body the actions that have led to the violation of rights.
The plaintiff must appear on the aforementioned day represented by a lawyer and a duly authorized Solicitor.
The Constitutional Court allows the Public Prosecutor, the party that has appealed, and the State Attorney, to see the proceedings and present their arguments. After this, the Constitutional Court proceeds to issue a sentence to resolve the amparo appeal.
The sentence handed down by the Section or Chamber of the Constitutional Court may have the following result:
A denial of the requested protection.
The granting of amparo, in this case the pronouncements would be: the recognition of public freedom or of the right, conservation or restoration of the appellant of the infringed freedom or of the right, declaration of nullity of the act, resolution or decision establishing its scope and effects.
What is the deadline to file an appeal for amparo before the Constitutional Court?
The term to file an appeal for amparo against administrative or governmental decisions and the appeal for amparo against judicial decisions. It is between twenty and thirty days, counted from the receipt of the notification of the resolution with which the previous judicial process ends.
In the case of filing an appeal for protection against parliamentary decisions, the term is three months. Which begin to be counted from when they are firm, according to the provisions of the internal regulations of the Chambers.
