Constitutional Protection of Rights: Amparo and Equality Principles

Posted on Nov 23, 2025 in Law & Jurisprudence

Judicial Protection of Fundamental Rights (Amparo)

Article 53.2 of the Constitution provides that the rights included in Articles 14 to 30 shall be protected by a special summary procedure known as judicial protection (Amparo).

This procedure was initially regulated by Law 62/1978 (prior to the Constitution), which has since been repealed. Currently, judicial protection is regulated under several specific laws depending on the jurisdiction:

  • Administrative Litigation: Law 29/1998 (LJCA).
  • Civil Jurisdiction: Law 1/2000 on Civil Procedure (LEC).
  • Criminal Matters: Law 38/2002 reforming the Criminal Procedure Law (LECrim), including specific legislation and duties (e.g., Organic Law 1/1982 on Civil Protection of Honor, Intimacy, and Self-Image).
  • Labor Jurisdiction: Royal Legislative Decree (specific labor procedural laws).
  • Military Jurisdiction: Organic Law 2/1985 on Military Jurisdiction.

Specific Procedures for Fundamental Rights

  • Habeas Corpus Procedure: Organic Law 6/1984.
  • Right of Correction: Organic Law 2/1984.
  • Electoral Matters: Organic Law 5/1985 (LOREG).

General Characteristics of Judicial Amparo

The procedure requires approval by Parliament.

  • It is an exceptional procedure, distinct from ordinary procedures.
  • It has a very limited purpose (protection of fundamental rights).
  • It results in advantages, providing greater protection for the rights involved.
  • It is a summary procedure (due to its limited scope).
  • It is an emergency procedure (the terms are shorter).
  • It is a preferred procedure (the judge must prioritize it over any other matter).
  • It is an alternative procedure (to the standard procedure). The Constitutional Court (TC) has stated: “Use both routes, but not in succession.”

The Constitutional Principle of Equality

Historical Evolution and Scope of Equality

The right to equality has undergone historical evolution. In the Liberal State, it was conceived only as equality before the law—a general and abstract rule applicable to all alike. Today, equality is considered not only before the law but also within the law.

The legislature may introduce differences in treatment between people who are in different situations (equality under the law or Material Equality). This principle is based on Article 9.2 of the Constitution (CE).

Manifestations of Equality in the Constitution (CE)

The Constitution expresses equality in several ways:

  1. As a higher value (fundamental principle).
  2. As a promotional principle (Article 9.2: promoting conditions for real and effective equality).
  3. As a fundamental right (Article 14).

The content of the principle of equality includes three main aspects:

  • Formal Equality.
  • Material Equality.
  • Prohibition of Discrimination.

Content of the Principle of Equality (Article 14)

Equality is a fundamental right. It is often described as a relational right, meaning that a claim of breach always arises in relation to another right or a particular situation.

The right to equality is not the right to be identical, but rather:

  • The right to be treated equally when in an equal status.
  • The right to be treated differently when in different situations.

Prohibition of Discrimination

In accordance with the principle of material equality, the legislature can establish differences in treatment, but these differences must never be discriminatory.

Requirements for Non-Discriminatory Different Treatment

For a difference in treatment to be considered non-discriminatory, the following requirements must be met:

  1. Different Factual Circumstances: The treatment must address genuinely different factual circumstances. Treating those in similar situations unequally constitutes discrimination.
  2. Basis for Comparison: The party alleging unequal treatment must establish a valid basis for comparison.
  3. Legitimate Purpose: The difference in treatment must serve a legitimate purpose, and that purpose cannot be contrary to the Constitution.
  4. Congruence (Suitability): There must be a logical relationship between the difference established and the aim pursued (as established in rulings like ST 1144/1985).
  5. Proportionality: Any difference in treatment must be proportional to the aim pursued.

Categories Suspected of Discrimination

Article 14 specifically prohibits discrimination based on certain grounds:

  • Birth, race, sex, religion, opinion.
  • Any other personal or social circumstance.

When differential treatment is based on one of these causes, it is suspected that discrimination exists. This requires the courts to apply particular rigor when prosecuting such cases.

In labor law, this often involves reversing the burden of proof: if the employee claims discrimination, the employer must provide evidence that their treatment was not discriminatory.

Discrimination can be classified as direct or indirect, a distinction derived from the Court of the European Union (EU):

  • Direct Discrimination: Occurs when treatment is explicitly based on a prohibited ground.
  • Indirect Discrimination: Occurs when treatment is based on an apparently neutral case or rule, but results in discrimination in practice.