He writ of protection is a procedure that is proposed before the Constitutional Court in order to protect certain rights and freedoms. Citizens are protected in articles 14 to 29 and 30.2 of the Constitution.
This situation applies when the interested party, the prosecutor or the Ombudsman is aware that these rights have been violated. The Constitution protects citizens in Title I, precisely in Chapter II of Title I.
Recognition of rights and freedoms in the amparo appeal
The constitution protects these rights and freedoms in article 53, which establishes the degree of protection which applies.
The rights and freedoms recognized in Chapter 2 are binding on all public authorities. Only the law can regulate the exercise of these rights protected in accordance with the provisions of art. 161.
Are you looking for a lawyer specialized in Criminal Law?
we help you find a criminal lawyer.
We have a wide network of collaborating lawyers in all Spain.
Every citizen can request the protection of the freedoms and rights recognized by article 14, before the ordinary courts. Through a procedure based on the principles of preference, requesting protection before the constitutional Court.
This writ of protection applies to conscientious objection, recognized by article 30. The recognition, respect and protection of the principles recognized in the amparo appeal will have a positive impact on the legislation.
The legal practice and the acts of the public power can be invoked before the ordinary court. Only if it is in accordance with the provisions of the laws that develop them.
He writ of protection constitutional law is presented before the Constitutional Court, based in Madrid, and has two conditions. The provision is present in the law in order to develop the proceeding of the appeal before the competent institutions.
The protection of fundamental rights and freedoms, in the event that the ordinary means of protection are unsatisfactory. Before the objective defense of the Constitution through the interpretation of the case in question where the Constitutional Court intervenes.
Considerations in the modalities that are applied in the amparo appeal
The modalities that are applied in the writ of protection found in the Organic Law of the Constitutional Court. In this area, three categories are distinguished to appeal the protection according to the origin of the action of the public power.
It will be in this instance that the violation of fundamental rights, that are present in the Constitution.
The category of appeal against parliamentary decisions found in article 42. It includes the writ of protection against government and administrative decisions of article 43.
The scope of the third category is the writ of protection against judgments, present in article 44.
This makes it possible to understand that the amparo complaint can be filed in case of violation of fundamental rights. He constitutional Court is in charge of processing and resolving the amparo complaint.
The stipulation of writ of protection states that it can be intercepted by the person affected by the restriction of the fundamental right. In these cases, the Ombudsman also participates as a representative and exponent of the complaints for amparo.
The appeal for amparo against government decisions
In order to appeal against government decisions, it is necessary to have previously exhausted the previous judicial remedy. He must have invoked as soon as possible the violation of fundamental rights.
To interpose the writ of protection it is necessary to justify the constitutional significance of the appeal. By unanimous agreement of its three members, it can decide to admit an appeal, independently of the other subjects involved.
In article 50.1, the LOTC requires that an admission decision be processed in order to deal with an aggravated situation. The content of the appeal must justify a decision on the merits by the requirements of the Constitutional court.
These are legally required by articles 41, 46, 49 of the LOTC, with the aim of achieving a justification. It will be necessary for the content of the appeal justify a substantive decision of the Constitutional court.
Upon understanding that, due to its special constitutional importance, the writ of protection. The appeal will be assessed based on the importance of the particular case.
The greatest interest of the entire process is to establish the proper interpretation of the Constitution. The purpose focuses on its application or its general effectiveness, including the determination of the content and scope.
Process to follow in the amparo appeal according to Spanish law
He writ of protection is subject to a prior admission process stipulated in article Art. 50. The elements described will have a substantial effect in the face of certain facts.
If the appellant has the right to file a constitutional appeal highlighted in article 46 of the LOTC. If the appeal was filed within the period established in articles 42 to 44.
If they have run out resources previous judicial proceedings or all the resources indicated in articles 43.1 and 44.1. Where it is also evaluated whether the violation has been formally denounced as soon as it is known as stated in article 44.
It should be considered whether the complaint meets the requirements of clarity and conciseness of the facts in the violated constitutional precepts. This situation depends on the establishers in articles 14 to 29 and 30.2
It is mandatory to specify the protection requested to preserve or restore the violated right and the claim of the applicant. Where the content of the appeal justifies ruling on the merits due to its special constitutional significance.
This will be valued according to its importance for the articles 49.1 and 50.1. It is necessary to remember that it seeks the interpretation, application or general effectiveness of the Constitution.
Obtaining the amparo appeal in the corresponding institutions
In these cases, the presentation of the appeal of the writ of protection which must be done upon request.
The Constitutional Court will request the Body or Court to report the facts that resorted to the violation of rights. He constitutional Court it will allow the appellate party, the prosecution to see the process and present their arguments.
It remains for the Constitutional Court to issue a sentence to resolve the writ of protection. Where the Chamber or Section of the Constitutional Court will issue a sentence in certain previously established senses.
The denial of the requested protection will be issued. Grant of protection, declarations may apply.
This will be an obscure statement of the decision, action or resolution that determines the effects and their scope. Among the possibilities is the recognition of the public right or liberty.
Without forgetting the possible restoration or preservation of the right or freedom infringed by the appellant.