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Amparo (Appeal for constitutional protection of fundamental rights)

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Amparo is one of the main powers conferred by the Constitution to the Constitutional Court. The object of this process is the protection against breaches of the rights and freedoms enshrined in Articles 14 to 29 and 30.2 of the Constitution originated by provisions, legal acts, omissions or simple actions of the government of the State, the Autonomous Communities and other public bodies of territorial, corporate or institutional nature, as well as their staff. The only claim that can be enforced through the amparo is the restoration or preservation of the rights or freedoms for which the appeal is lodged.

The Organic Law of the Constitutional Court distinguishes three types of amparo depending on the origin of the act of public authority which allegedly constitutes a violation of fundamental rights:

  • a) appeal against parliamentary decisions (art.42);
  • b) appeal against governmental and administrative decisions (art. 43);
  • c) appeal against judicial decisions (art. 44).

Moreover, the Organic Law on the Electoral System provides two types of amparo against acts and decisions of the electoral administration:

  • a) appeal against the agreements of the Electoral Boards on proclamation of candidates and candidates (art. 49.3);
  • b) appeal against the agreements of the Electoral Boards on proclamation of elected and election and proclamation of Presidents of Local Corporations (art. 114.2).

Any natural or legal person claiming a legitimate interest, as well as the Ombudsman and the public prosecutor are entitled to lodge an appeal. Those persons favored by the challenged decision may also appear in the proceedings with the character of the defendant. Moreover those people which show having a legitimate interest in the proceedings, may also appear. The prosecutor is involved in all Amparo actions in defense of legality, the rights of citizens and public interest protected by law.

Before filing the appeal against governmental or administrative decisions or against judicial decisions petitioner must show to have exhausted any remedies available before ordinary courts. On the top of that, it is necessary to have reacted to the breach of the fundamental which now aims to be enforced before the Constitutional Court, as soon as the violation was detected.

The deadlines for filing the appeal against governmental or administrative decisions and appeal against judicial decisions are of twenty and thirty days, respectively, being the dies a quo that of the notification of the resolution that ends the judicial path. The deadline for filing the appeal against parliamentary decisions is of three months since decisions becomes final and therefore unappealable according to the internal rules of the legislative Chamber.

It is unamendable and common to all forms of amparo that the applicant must justify the special constitutional relevance of the appeal lodged. This is a requirement that can not be confused with the very foundation of constitutional violation reported, so that the burden of justifying the special constitutional relevance of the appeal is somewhat different from arguing about the existence of a violation of a fundamental right the act or contested decision.

Amparo is initiated by application to the Constitutional Court where, in addition to demonstrate fulfillment of the aforementioned requirements, the petitioner must state clearly and concisely the facts supporting the claim, the constitutional precepts allegedly infringed and fix precisely the protection that seeks from the Court or the restoration of rights or freedoms deemed violated. The applicant has to appear represented by Attorney of Madrid Bar and assisted by a lawyer of any Bar of Spain and the claim must be filed within the legal deadline or even fifteen hours after the expiration day, either at the General Registry Office of the Constitutional Court or before the Registry Office or Central Registry of civil courts of any Spanish locality.

The complaint must be subject to an admission decision by the Court’s Sections or Chambers. For admissibility, in addition to the legally established requirements, it is necessary that the content of the appeal justifies a decision on the merits by the Constitutional Court because of its special constitutional significance which will be assessed taking into account the importance of the case for the interpretation of the Constitution, for its general enforcement or for the overall effectiveness and delimitation of the content and scope of fundamental rights.

Inadmissibility decisions taken by Sections or Chambers shall specify the unfulfilled requirement and can only be challenged on appeal by the public prosecutor.

The judgment delivered on the substance of the appeal may grant or deny the requested protection (Amparo). Should be the protection be granted, the judgement will contain any of the following statements:

  • a) declaration of invalidity of the decision, act or contested resolution;
  • b) public recognition of the right or freedom violated;
  • c) restoration of the appellant in the integrity of his right or freedom by adopting appropriate measures, and where appropriate, for its conservation.

If the amparo had to be estimated because - on the opinion of the adjudicating body – constitutional breach of fundamental rights or public liberties, comes from the wording of an Act the question must be elevated to the full Court, with suspension of the period for delivering the judgment in the process of amparo, until the Plenary rules on the constitutionality of the applied Act.

Generally speaking, the filing of amparo does not suspend the effects of the act or contested decision, although the Court, on its own initiative or at the request of a party, may order full or partial suspension when the execution of the act or decision under appeal could produce the applicant such a damage that would frustrate the purpose of the complaint. This exceptional measure must also ponderate whther suspension could cause serious disruption to a constitutionally protected interest or the fundamental rights and freedoms of others. Also, the body hearing the Amparo complaint may take any applicable precautionary measures and provisional rulings which tend to guarantee the effectiveness of the requested protectio.