Lawyer specialising in appeal proceedings (recurso de amparo)
Our lawyers, who are experts in appeals for protection against administrative judgments, have extensive experience in this type of challenge.
The appeal (recurso de amparo) is a free procedure before the Constitutional Court and its purpose is to protect the rights and freedoms recognised in Articles 14 to 29 of the Magna Carta, as well as the conscientious objection established in Article 30.2-, which are violated by provisions, acts, decisions, resolutions, omissions or simple acts of the public authorities of the State, the Autonomous Communities and other public bodies of a territorial, corporate or institutional nature, and their officials or agents.
Consequently, what is sought through this kind of appeal is the reestablishment or preservation of the fundamental rights or freedoms enshrined in the Constitution.
The constitutional basis for the appeal (recurso de amparo) is Articles 53.2 and 161.1.b, in concatenation with the provisions of Articles 41 to 58 of Organic Law 2/1979, of 3 October, of the Constitutional Court.
There are three types of appeal (recurso de amparo) on the basis of the origin of the act that entails the violation of fundamental rights and which are well known to our lawyers specialised in appeals against administrative judgments:
- Appeal against parliamentary decisions.
- Appeal for protection against governmental and administrative decisions.
- Appeal against judicial decisions.
It is essential to have exhausted judicial remedies before lodging an application for appeal (recurso de amparo) against governmental or administrative decisions and against judicial decisions, as well as to have invoked the violation of the fundamental right that the applicant intends to assert before the Constitutional Court, and it is an irremediable requirement common to all types of applications for appeal (recurso de amparo) that the applicant justifies the special constitutional importance of the appeal.
They have standing to bring an action for constitutional protection:
- Natural or legal persons claiming a legitimate interest.
- The Ombudsman.
- The Public Prosecutor’s Office (intervenes in all proceedings).
The action for appeal (recurso de amparo) before the Constitutional Court is very personal, which prevents it from being exercised by a person other than its holder – except in cases of representation.
Persons who have been favoured by the decision, act or fact which is the subject of the appeal or who have a legitimate interest therein may also appear in the proceedings as defendants or interveners.
It is necessary for its interposition:
- A fundamental right or public freedom has been infringed.
- That all the means of challenge provided for in the legal system have been exhausted in order to obtain its restoration.
- The infringement of the fundamental right or public liberty has been invoked as soon as, once known, there was room to do so.
- That the problem raised justifies a decision as a result of its particular constitutional significance.
The non-extendable time limit for lodging an application for the appeal (recurso de amparo) is:
- Three months against parliamentary decisions.
- Twenty days against administrative provisions or acts.
- Thirty days against court decisions.
- Two days on the proclamation of candidates or nominations.
- Three days on the proclamation of elected officials and Presidents of Local Corporations.
In all cases, the time limit shall run from the day following the day of notification:
- The decision terminating the preliminary judicial proceedings.
- Parliamentary decisions or acts that are final.
- Decisions handed down in the electoral process.
In order to be able to file an application for the appeal (recurso de amparo), the plaintiff must be represented by an attorney acting under the direction of a lawyer. Both professionals may belong to any Bar Association in Spain that authorises them to practise their profession.
Our lawyers specialised in the appeal (recurso de amparo) against Administrative Litigation (Contencioso-Administrativo) Judgments, by regulatory mandate, initiate this challenge by means of a complaint addressed to the Constitutional Court, clearly and concisely stating: the facts on which it is based, the constitutional precepts infringed, as well as the exact nature of the appeal (recurso de amparo) sought to preserve or restore the right or freedom that is considered to have been infringed.
In order to be admitted for processing, in addition to complying with the legally established requirements, the content of the appeal must justify a decision on the merits by the Constitutional Court due to its special constitutional significance, which will be assessed in terms of its importance for the interpretation of the Constitution, for its application or for its general effectiveness.
Therefore, it is necessary to clearly distinguish in the writ of the appeal (recurso de amparo) between the argumentation channelled into reasoning the existence of the infringement of the fundamental right or public freedom invoked and that designed to demonstrate that the issue raised has a special constitutional significance.
Suspension of the contested act
Normally, the filing of an application for the appeal (recurso de amparo) does not suspend the effects of the challenged act or decision; however, the Court, ex officio or at the request of a party, may order its total or partial suspension when the execution of the challenged act or decision does not cause serious disturbance to a constitutionally protected interest or to the fundamental rights or freedoms of another person, or, failing this, when not granting it could cause the plaintiff harm that would lead to the loss of the object of the appeal (recurso de amparo).
The judgment given on the merits of the appeal shall grant or deny the relief sought within ten days after deliberation and voting. In the event that it is granted, the decision shall include:
- The declaration of invalidity of the contested decision, act or decision.
- The recognition of the violated public right or freedom.
- The restoration of the appellant to the integrity of his right or freedom with the adoption of appropriate measures for its preservation.