.jpg)
REQUIREMENTS FOR ACCESS TO THE appeal OF AMPARO FOR FUNDAMENTAL RIGHTS
Exhausting all appeal avenues before the ruling becomes final:
We understand that the NULLITY INCIDENT is not strictly an appeal; however, the ruling of the Constitutional Court 135/2017, of 27 November, Legal Ground 4, establishes that pursuant to the aforementioned Article 44.1(a) of the LOTC (Organic Law of the Constitutional Court), violations of fundamental rights arising from acts or omissions by judicial bodies may give rise to a constitutional amparo appeal if, among other requirements, all means of challenge provided for by procedural rules have been exhausted. As this Court has consistently noted since its earliest decisions, this requirement reflects the subsidiary nature of the amparo appeal under the Constitution, a special and extraordinary remedy, available only after the defence of rights and freedoms before the ordinary courts, to which Article 53.2 of the Spanish Constitution entrusts their general protection (Constitutional Court Judgment 185/1990, of 15 November, among others). It is settled doctrine that the remedies which amparo applicants must first attempt include the nullity of proceedings procedure (incidente de nulidad de actuaciones) now regulated under Article 241.1 of the LOPJ (Organic Law of the Judiciary), where that procedure is, of course, appropriate to protect the right or freedom alleged to have been infringed (Constitutional Court Judgment 105/2001, of 23 April, Legal Ground 3, among others). It is clear that in the present case the conditions set out in Article 241.1 of the LOPJ were met to pursue a nullity of proceedings challenge, on the basis of the applicants' own argument that the inadmissibility of their cassation appeal gave rise to a violation of their right to effective judicial protection. Indeed, it was the inadmissibility order that caused the alleged violation, or, in the terms of Article 44.1 of the LOTC, the alleged infringement of the right to effective judicial protection had its immediate and direct origin in that order, and not in any earlier decision. The applicants themselves acknowledge this when the only decision they challenge before this Court is that order. Since the alleged violation of their right to effective judicial protection materialised upon the inadmissibility of the cassation appeal declared by that order, it is evident that it could not have been raised before the order was notified. Furthermore, the order was not susceptible to any appeal, by virtue of Article 93.6 of the LJCA (Law on Administrative Judicial Review). The nullity of proceedings procedure was therefore a procedural remedy, exceptional, no doubt, but then the amparo appeal is itself extraordinary as well as subsidiary (Constitutional Court Order 72/2003, of 27 February, Legal Ground 1), that would have enabled the Supreme Court to remedy the violation of the right to effective judicial protection now raised before us. The fact that, after the Supreme Court had raised of its own motion the possible inadmissibility of the cassation appeal and, as provided for under Article 93.3 of the LJCA, had indicated "before deciding" the existence of a "possible" ground of inadmissibility, the applicants argued against its applicability in constitutional terms does not mean that they were thereby challenging a judicial inadmissibility decision that had, at that point, obviously not yet been taken. In the procedure under Article 93.3 of the LJCA, the party appealing on cassation must seek to persuade the Court that its appeal is admissible and diligently identify any errors it may perceive in the court's reasoning (failing which, the party's passivity would deprive such errors of constitutional relevance, as occurred in the case resolved by Constitutional Court Judgment 287/2006, of 9 October). However, the submission of such arguments does not constitute a complaint of a violation of a fundamental right that has not yet materialised, nor does it excuse the obligation to exhaust all means of challenge provided by procedural rules against the decision that allegedly gives rise to it, including the nullity of proceedings procedure under Article 241.1 of the LOPJ, established as a genuinely exceptional instrument enabling courts to fulfil their ordinary function as the primary guarantors of fundamental rights, as recalled in the preamble to Organic Law 6/2007, of 24 May.
The nullity incident is a special and autonomous challenge procedure under Constitutional Court Ruling 156/1987 of 20 October; however, notwithstanding our own view, the Constitutional Court requires it as a precondition to filing an amparo appeal. In our view, the nullity incident is analogous to the review appeal (Art. 509 et seq. of the Civil Procedure Act), and rulings STC 18/2009 of 26 January, STC 153/2012 of 16 July, and STC 185/1990 of 15 November had until recently interpreted the right to effective judicial protection as taking precedence, granting citizens access to that jurisdictional stage. Regrettably, that is no longer the Constitutional Court's prevailing doctrine, which currently places greater obstacles and restrictions on access to the amparo appeal.
Is the nullity incident always required?
This doctrine has been refined by the Constitutional Court, Full Court, ruling 112/2019 of 3 October 2019, Appeal 2598/2017, in which the Constitutional Court established that the exhaustion of judicial remedies is not required in cases where the amparo appeal filed against the decision alleged to have infringed fundamental rights has been declared inadmissible on procedural grounds not attributable to any lack of diligence on the part of the applicant.
a) in accordance with the Court's case law, in these scenarios exhausting all judicial remedies requires bringing a nullity of proceedings incident before the court that issued the decision considered to have infringed fundamental rights. The Court has imposed this requirement in a number of cases, including where the alleged infringement of fundamental rights is attributed to the ruling resolving the appeal on points of law (suplicación), and the appeal brought to secure judicial protection of the fundamental right considered to have been violated, namely the cassation appeal for unification of doctrine, has been declared inadmissible. In such cases, under constitutional case law, before bringing an amparo application it is first necessary to file a nullity of proceedings incident before the court that resolved the appeal on points of law [SSTC 39/2003 of 27 February, 140/2006 of 8 May, Legal Ground 2 b); 265/2006 of 11 September, Legal Ground 6; 169/2013 of 7 October, Legal Ground 3, and 95/2018 of 17 September, Legal Ground 2, and in Orders AATC 176/2003 of 2 June, Legal Ground 5; 211/2005 of 12 May, Legal Ground 2, and 135/2017 of 10 October, Legal Ground 2]. As stated in STC 39/2003 of 27 February, Legal Ground 3, in these cases the requirement to exhaust judicial remedies, "far from being an empty formality, constitutes an essential element in upholding the subsidiary nature of the amparo appeal and, ultimately, in ensuring the proper relationship between this Court and the bodies that make up the Judiciary", since it is the courts that are "primarily responsible for remedying any infringements of rights invoked by citizens". For this reason, the aforementioned ruling holds that "where a appeal exists that may be used and is appropriate by its nature and character to protect the right or freedom considered to have been violated, that appeal must be pursued before applying to this Court".
This case law applies whenever the appeal lodged, without being manifestly inadmissible (if it were manifestly inadmissible, this would render the appeal out of time on the grounds that judicial proceedings had been unduly prolonged), has been rejected on the basis that, although the appeal was lodged in compliance with the time limits and formal requirements prescribed by procedural law (if the rejection is attributable to a procedural defect on the part of the appellant, the judicial route is considered to have been improperly exhausted), the necessary conditions for a substantive examination of the matter raised were not met.
How to lodge an amparo appeal:
See the Constitutional Court guide here
